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HQ 230034




October 22, 2003

RR:CR:DR LIQ-15 230034 LLB

Category: LIQUIDATION

Port Director
Bureau of Customs and Border Protection
24735 E. 75th Avenue
Denver, CO 80239
Attn: Elizabeth Stevens

RE: Internal Advice; protest no. 3307-03-100022; 19 U.S.C. § 1505(c)

Dear Ms. Stevens:

The above-referenced protest has been forwarded to our office for further review. As explained below, because the requirements for further review have not been met, we are treating the application as a request for internal advice per 19 C.F.R. § 177.11. We have considered the points raised by the protestant and your office. Our decision follows.

Facts

The subject protest involves 4 entries

322-xxxx3759; 322-xxxx9759; 322-xxxx3751; and 322-xxxx4754. We note that these entries are the subject of pending drawback claims. made between May 6, 1999 and September 15, 1999. All the foregoing entry summaries included both antifriction ball bearings and paints/ varnishes from Sweden. The “Importer’s Blanket Statement of Non-Reimbursement of Antidumping Duties” indicates that the bearings were manufactured by SKF and that were exported by another Swedish company. The paint/varnish, was entered as 3209.10.0000, HTSUS at a general rate of 5.1%. At the time of entry, antifriction ball bearings from Sweden were subject to an antidumping duty order. See Antidumping Duty Orders: Ball Bearings, Cylindrical Roller Bearings and Parts Thereof From Sweden, 54 Fed. Reg. 20907 (May 15, 1989).

On October 1, 1999, the port issued a Notice of Action for entry 4751 indicating that the paint/varnish entered therein was subject to a rate advance to 5.9%, plus interest, as the paint/varnish should have been entered under 3209.90.0000, HTSUS. The port issued similar notices for entries 9759; 4754; and 1758 between September 18, 2000 and March 24, 2003.

On July 7, 2000, the liquidation of all of the subject entries continued to be suspended as Commerce initiated a review of ball bearings from Sweden for the relevant period of May 1, 1999 through April 30, 2000. See Initiation of Antidumping and Countervailing Duty Administrative Reviews and Requests for Revocations in Part, 65 Fed. Reg. 41942 (July 7, 2000). Within 90 days of the foregoing notice, SKF Sweden withdrew its request for administrative review. See Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof From Sweden [et al.]; Preliminary Results of Antidumping Duty Administrative Reviews, and Notice of Intent To Revoke Orders in Part, 66 Fed. Reg. 8931 (February 5, 2001). On March 9, 2001, Commerce issued instructions to Customs instructing Customs not to liquidate entries of ball bearings produced by SKF and exported by parties other than SKF.

On March 17, 2003, Commerce instructed Customs to liquidate the ball bearings from Sweden at the deposit rate required at entry. Customs liquidated the entries on April 11, 2003. Specifically, Customs liquidated the ball bearings according to the foregoing Commerce instructions and liquidated the paint/varnish according to its previously issued Notices of Action, e.g. 5.9%, plus interest.

On June 23, 2003, the protestant filed a protest thereto arguing, without citation to authority, that Customs should not charge interest on the paint/varnish because liquidation of the paint/varnish was suspended pending review of the antidumping duties for the radial ball bearings.

Issue

Whether Customs assessment of interest on the paint/varnish described herein was proper under 19 U.S.C. § 1505

Law and Analysis

Initially, we note that the protestant’s June 23, 2003, protest, is timely inasmuch as it was filed within 90 days from the April 11, 2003, date of liquidation. 19 U.S.C. § 1514(c)(3). The matter is protestable under § 1514(a)(5).

We also note that the protestant’s application for further review (AFR) does not meet the requirements set forth in 19 C.F.R. § 174.24, which provides:

Further review of a protest which would otherwise by denied by the port director shall be accorded a party filing an application for further review which meets the requirements of § 174.25 when the decision against which the protest was filed: (a) Is alleged to be inconsistent with a ruling of the Commissioner of Customs or his designee, or with a decision made at any port with respect to the same or substantially similar merchandise; (b) Is alleged to involve questions of law or fact which have not been ruled upon by the Commissioner of Customs or his designee or by the Customs courts; (c) Involves matters previously ruled upon by the Commissioner of Customs or his designee or by the Customs courts but facts are alleged or legal arguments presented which were not considered at the time of the original ruling; or (d) is alleged to involve questions which the Headquarters Office, United States Customs Service, refused to consider in the form of a request for internal advice pursuant to § 177.11(b)(5) of this chapter.

Therefore, further review will be accorded to the party filing an application for further review which meets the requirements of § 174.25 and at least one of the criterion in § 174.24. In the subject protest, the port approved the AFR, without explanation and notwithstanding the fact the protestant has not alleged any of the conditions required in § 174.24 of the decision protested. Consequently, the criteria for further review have not been met and therefore, we are treating protestant’s application as a request for internal advice.

Last, we note the instant protest is so seriously deficient of legal justification for its argument that it does not meet the requirements of 19 C.F.R. § 174.13, which requires that the justification for the protest “be set forth distinctly and specifically.” The protestant has not provided a recitation of the facts nor conclusions drawn from the facts have been provided. Nor does the Protestant provide the legal framework which supports the facts and events. Therefore, we have supplied the legal underpinnings of the events and conclusions as necessary.

The protestant argues that Customs should not have assessed interest on its nonantidumping duty merchandise, e.g. the paint/varnish, because liquidation of the entry was being suspended because it contained antidumping merchandise, the ball bearings. Pursuant to 19 U.S.C. § 1505, the statutory authority for deposit of estimated duties, fees, and interest, provides:

(a) Deposit of estimated duties, fees and interest

. . .the importer of record shall deposit with the Customs Service at the time of making entry, or such later time as the Secretary may prescribe by regulation, the amount of duties and fees estimated to be payable thereon. . .

(b) Collection or refund of duties, fees, and interest due upon liquidation or reliquidation

The Customs Service shall collect any increased or additional duties and fees due, together with interest thereon, or refund any excess moneys deposited, together with interest thereon, as determined on a liquidation or reliquidation

(c) Interest

Interest assessed due to an underpayment of duties, fees, or interest shall accrue, at a rate determined by the Secretary, from the date the importer of record is required to deposit estimated duties, fees, and interest to the date of liquidation or reliquidation of the applicable entry or reconciliation. . . .

Pursuant to 19 C.F.R. § 141.101(a) estimated duties for merchandise released under entry documentation are due at the time the entry summary is filed, which in this case was between May 6, 1999 and September 15, 1999. Since the protestant underpaid its duty for the paint/varnish, interest on those entries ran from the foregoing dates until, pursuant to 19 U.S.C. § 1505(c) the date of liquidation. The statute, nor the regulations, carve out an exemption from interest for merchandise that is entered with other merchandise that is pending resolution of the assessment of antidumping duties. As such, Customs properly assessed interest on the paint/varnish.

Holding

Customs properly assessed interest to the paint/varnish described herein, pursuant to 19 U.S.C. § 1505(c).

Sixty days from the date of the decision the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

Myles Harmon, Director

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