HQ 225087 - 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 - United States International Trade Commision Rulings

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HQ 225087

June 6, 1994

LIQ-4-01/PRO-2-05-CO:R:C:E 225087 JRS

CATEGORY: ANTIDUMPING DUTIES INTEREST

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

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