LIQ-4-01/PRO-2-05-CO:R:C:E 225087 JRS
Regional Commissioner of Customs
c/o Head, Protest and Control Section
6 World Trade Center, Suite 762
New York, New York 10048-0945
RE: Application for Further Review Protest No. 1001-93-101488;
Antidumping duties; Interest Applicability; 19 U.S.C.
1677g(a); 19 CFR 353.24; Status of additional argument
presented regarding assessment of harbor maintenance fee;
19 U.S.C. 1514(c)(1); 19 CFR 174.14; 19 CFR 174.28
Dear Sir:
The above-referenced protest was forwarded to this office
for further review. We have considered the points raised and our
decision follows.
FACTS:
This protest involves an entry filed on December 11, 1986,
for candles and tapers under item number 755.2500, TSUS. The
merchandise, petroleum wax candles from the Peoples' Republic of
China, is the subject of an affirmative antidumping duty finding,
A-570-504, published by the Department of Commerce on August 28,
1986, which required a cash deposit equal to the estimated
weighted-average antidumping duty margin (54.21%) on all entries
and withdrawals from warehouse for consumption (See 51 FR 30686,
August 28, 1986). The importer posted an antidumping bond at the
time of entry. Liquidation of the entry was suspended in
accordance with the order.
Customs issued a CF 29 on October 16, 1992, informing the
importer that Customs has "received instructions [from Commerce
(Message # 3288116) on October 14, 1992] to liquidate entries
made during the period 2/19/86 - 7/31/90 for candles made in
China at the antidumping deposit rate required at that time of
entry: 54.21%. Since you posted a bond in lieu of cash, this
entry will be rate advanced." The entry was liquidated on
December 18, 1992, with an assessment of antidumping duties plus
interest.
ISSUES:
(1) Whether the harbor maintenance fee assessed at
liquidation of the entry is a timely filed issue.
(2) Whether an assessment of interest on antidumping duties
is proper when importer posts a bond instead of the required cash
deposit.
LAW AND ANALYSIS:
Initially, we note that the protest was timely filed on
March 16, 1993, in accordance with 19 U.S.C. 1514(c)(3)(A), as
amended, against the assessment of interest on antidumping
duties, and is a protestable decision under 19 U.S.C. 1514(a)(5)
because it does not fall within the exception of 19 U.S.C.
1514(b) as the protestant does not challenge the antidumping duty
determination itself, only the interest associated with the
dumping duties.
We have also considered the submission dated April 5, 1993,
and filed with Customs on April 8, 1993, and the submission dated
November 8, 1993, entitled "Additional Arguments By the
Protesting Party" filed with Customs on November 15, 1993, only
with respect to the antidumping issue for the reasons discussed
below.
Issue (1)
Section 514(c)(1) of the Tariff Act of 1930, as amended (19
U.S.C. 1514(c)(1)), provides in pertinent part that:
[a] protest may be amended, under the regulations
prescribed by the Secretary, to set forth objections as
to a decision or decisions... which were not the
subject of the original protest, in the form and manner
prescribed for a protest, any time prior to the
expiration of the time in which such protest could have
been filed under this section. New grounds in support
of objections raised by a valid protest or amendment
thereto may be presented for consideration in
connection with the review of such protest pursuant to
19 U.S.C. 1515 at any time prior to the disposition of
the protest.
Section 174.14(a), Customs Regulations (19 CFR 174.14(a)),
allows a protest to be amended at any time prior to the
expiration of the 90-day period within which such protest may be
filed in accordance with 19 CFR 174.12(e), (that is, in this
case, within 90 days after liquidation of the entry) to include
additional claims on the same issue protested or to challenge an
additional administrative decision relating to the same category
of merchandise. Thereafter, only additional grounds or arguments
in support of a valid protest may be presented (emphasis added).
See 19 CFR 174.28.
We find that the protestant's submission of the argument
regarding the assessment of the harbor maintenance fee on
November 15, 1993, (almost 11 months after the entry had been
liquidated) to be a new ground and not an additional argument "in
support of the valid protest" filed on the assessment of
interest. Accordingly, this argument is untimely filed under
19 CFR 174.14 and, as such, may not be entertained pursuant to
19 CFR 174.28.
Issue (2)
Protestant argues that since Customs accepted the bond and
did not notify the importer that a cash deposit was required,
interest should not be assessed against the payment of
antidumping duties. Protestant urges that the relevant
CIE notice N-212/85, Suppl. #4, November 20, 1986, should be read
narrowly as permitting Customs only to collect cash deposit.
Moreover, protestant asserts that Customs misled the importer
when Customs rejected this entry on February 11, 1987, with the
following notation in the "Remarks" section of the Entry
Rejection Notice (Form II-RC-136S):
Anti dumping Duty of 54.21% applies to candles from the
People's Republic of China. Show identification no. A-570-504-02 on CF 7501 to the left of column 25 on line showing
$10,855.01 dumping duty. s/s CST-23, Duty Assessment
Protestant claims that this notice is inadequate because it
is silent with respect to the specific cash requirement (a non-
disclosure of a material fact) and that this notice appears to
describe a procedure or method for the recordation of security in
an anti-dumping case. Protestant argues that it was the duty of
the commodity specialist to enforce the specific terms of the
Commerce Order by specifically requiring the deposit of cash.
The fact that the Customs commodity specialist erroneously
accepted a bond in lieu of a cash deposit for this Order does not
relieve the importer from his statutory obligation to pay the
existing cash deposit requirement as published in the Federal
Register. 19 U.S.C. 1673e; see generally Office of Personnel
Management v. Richmond, 110 S.Ct. 2465 (1990). The fact that the
commodity specialist did not reject the entry on the basis that a
bond rather than cash was provided does not negate the fact that
a cash deposit, required by law to be deposited, was not. The
Customs Service cannot waive the statutory requirement of
19 U.S.C. 1673. See generally Romar Trading Co., Inc. v. United
States, 27 Cust. Ct. 34, C.D. 1344 (1951); Swan Tricot Mills
Corporation v. United States, 63 Cust. Ct. 530, C.D. 3948 (1969).
Under 19 U.S.C. 1677g(a), interest shall be payable on
overpayments or underpayments of amounts deposited on merchandise
entered, or withdrawn from warehouse, for consumption on and
after the date of publication of an antidumping duty order or the
date of a finding under the Antidumping Act of 1921. The words
"amounts deposited" refer only to cash deposits of estimated
antidumping duties upon entry and not to other kinds of security
such as a bond. Thus, since a bond is not cash, it does not
constitute an "amount deposited." See Timken Co. v. United
States, 777 F. Supp. 20, 15 CIT 526, 532 (1991). Interest is
collectible only on cash deposits. 19 CFR 353.24(a). Interest,
therefore, is properly assessed, in accordance with 19 CFR
353.24(b), on the underpayment of duties (including nonpayments
of antidumping duties) represented by the difference between the
cash deposit of estimated antidumping duties on the date of entry
(in this case, $0 dollars since a bond was supplied rather than
cash) and the final amount of assessed duties on the date of
liquidation.
HOLDING:
(1) The harbor maintenance fee issue was first raised more
than 90 days after the date of liquidation and, accordingly, is
denied as untimely filed under 19 CFR 174.14, and is not proper
under 19 CFR 174.28 as an additional argument in support of the
filed protest.
(2) An importer who posts a bond rather than making the
required cash deposit is liable for the assessment of interest on
the antidumping duties even if Customs accepts a bond.
You are instructed, therefore, to DENY the protest. In
accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive,
this decision should be mailed by your office to the protestant
no later than 60 days from the date of this letter. The Office
of Regulations and Rulings, in 60 days from the date of the
decision, will take steps to make the decision available to
Customs personnel via the Customs Rulings Module in ACS and the
public via the Diskette Subscription Service, Lexis, Freedom of
Information Act and other public access channels.
Sincerely,
John Durant, Director Commercial Rulings Division