Imported Plastic Sheet for Bagmaking, Outside Plastic Bag Scope, CBP HQ Rules
Plastic sheet rolls imported from China are outside the scope of an antidumping duty order and accompanying anti-circumvention determination on polyethylene bags from China, CBP found in a recently released ruling. CBP headquarters ultimately found that the agency had improperly assessed antidumping duties on entries of plastic rolls as if they were subject to the AD order.
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The ruling came in response to an application for further review of a denied protest by AESA International. AESA alleged the plastic roll bags at issue were outside the scope, saying the scope covers polyethylene retail carrier bags that were imported in their finished state but didn't apply to the rolls at issue because they were continuous sleeves at the time of importation. Similarly, AESA argued that the anti-circumvention determination was limited to unfinished bags that were "sealed on all four sides, cut to length, and ready to be stamped to create an opening and handle" but that its rolls were not sealed on all four sides or cut to length.
CBP first noted that, "generally, assessed ADD duties properly applied by CBP are not protestable" because CBP simply follows instructions from Commerce when assessing and collecting antidumping duties. However, CBP must make factual findings to determine whether to apply any order to the merchandise. Those determinations "necessarily entail evaluating both the product and the order,” which go beyond "mere ministerial function," CBP said.
AESA argued that only bags with handles are subject to the scope of the polyethylene bags order. CBP said it agreed with AESA’s assertion as evidenced by the previous scope ruling wherein Commerce determined that the scope of the order excluded bags without handles. Because neither the composition of the plastic roll bags, nor their measurements were in dispute, CBP said "the only outstanding" item was whether the scope of the circumvention inquiry and subsequent determination rendered AESA’s bags subject to the order.
In the anti-circumvention determination, Commerce found that imports of unfinished bags, specifically those sealed on all four sides, cut to length, and appearing ready to undergo the final step in the production process, were subject to the order. Commerce noted that the “final step” involved using a die press to stamp out the opening and creating the handles of a finished bag.
AESA argued that the operations described in the anti-circumvention determination were inapplicable to its plastic roll bags as imported because they are a continuous sleeve or lay-flat tube. The bags were cut to length after importation and then heat-sealed to form the bottom of the bag and stamped to form a handle and top opening.
CBP said that based on both photos and descriptions, it agreed there was "no other evidence to suggest that the samples of the imported plastic rolls are cut to length prior to importation." Without being cut to length prior to importation, the imported bags cannot appear “ready to undergo the final step in the production process," CBP said.