HQ 229767 - Protest/AFR No. 2704-02-101256; Frontier Insurance Company; 19 C.F.R. § 174.14(a) and 174.12(e)(3); amendment to protest; sufficiency of protest - United States International Trade Commision Rulings

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HQ 229767

March 8, 2005

PRO-2-03; PRO-2-02; PRO 2-03 RR:CR:DR
229767 LLB

Category: PROTEST

Port Director of Customs
Los-Angeles-Long Beach Seaport
11099 S. La Cienega Blvd.
Los Angeles, CA 90045

RE: Protest/AFR No. 2704-02-101256; Frontier Insurance Company; 19 C.F.R. § 174.14(a) and 174.12(e)(3); amendment to protest; sufficiency of protest

Dear Port Director:

The above-referenced protest has been forwarded to this office for further review. We have considered the points raised by the protestant-surety, Frontier Insurance Company, and your office. Our decision follows.

FACTS

The subject protest covers 26 entries

The port submitted entry 946-xxxxx64-3 and 946-xxxxx61-9 as representative entries. of freshwater crawfish tail meat made between June 18, 1999 and August 30, 1999. According to the entry, the crawfish was imported by Meyyang Min-Metal, Inc. and the packing invoice submitted therewith shows the crawfish was a product of China exported by Huaiyin Foreign Trade Corporation (30) (Huaiyin 30). At the time of entry, freshwater crawfish tail meat from China was subject to an antidumping order issued by the Department of Commerce (Commerce). See Notice of Amendment to Final Determination of Sales at Less Than Fair Value and Antidumping Order: Freshwater Crawfish Tail Meat From the People’s Republic of China, 62 Fed. Reg. 48218 (September 15, 1997). The order stated that merchandise exported, manufactured or produced by Huaiyin Foreign Trade Corporation was subject to a dumping margin of 91.50%. Id. The order did not indicate whether the foregoing rate applied to Huaiyin Foreign Trade Corporation (30) or Huaiyin Foreign Trade.

Corporation (5)(Huayin 5); however, on September 19, 1997, Commerce issued deposit instructions which indicate that the rate for Huayin 5 is 91.5% and provides rates for various exporters, manufacturers or producers of the subject merchandise. See Message No. 7262119. Huayin 30 is not specifically listed therein. The China-Wide Rate listed is 201.63%.

Based on our review of the entry documents submitted, the importer entered some of the entries asserting a 91.5% dumping rate; however, the entries were rejected and later refiled asserting a 201.63% dumping rate in order to comply with the deposit instructions in Message 726119. According to the Automated Commercial System (ACS), the importer posted a continuous bond.

In 1999, the entries continued to be suspended as Commerce initiated a review of freshwater crawfish tail meat from China for the relevant period of September 1, 1998 through August 31, 1999. See Initiation of Antidumping and Countervailing Duty Administrative Reviews and Requests for Revocation in Part, 64 Fed. Reg. 60161 (November 4, 1999). On April 24, 2001, Commerce published final results of the administrative review for the subject period, indicating that the weighted-average margin for the crawfish tails produced by Huaiyin 30 was 139.68%. Freshwater Crawfish Tail Meat from the People’s Republic of China; Notice of Final Results of Antidumping Duty Administrative Review and New Shipper Reviews, and Final Partial Rescission of Antidumping Duty Administrative Review, 66 Fed. Reg. 20634 (April 24, 2001). Commerce amended its final results changing the weighted-average margin for the crawfish tails produced by Huaiyin 30 to 139.68%. See Freshwater Crawfish Tail Meat From the People’s Republic of China: Amended Final Results of Administrative Review and New Shipper Reviews, 66 Fed. Reg. 30409 (June 6, 2001).

On February 22, 2002, Commerce issued to CBP liquidation instructions that directed CBP to liquidate entries of specifically named exporters and importers at various rates. Huayin 30 is not listed as an exporter nor is Meyyang Min-Metal, Inc. listed as an importer therein. The instructions further stated that for all other shipments a 201.63% rate should be applied. CBP liquidated the subject entries at 201.63%, with interest, between April 5, 2002 and April 19, 2002.

According to the CBP National Finance Center’s reports and mailing log, a formal demand on the surety, Frontier Insurance Company, was mailed on July 10, 2002. On October 7, 2002, the surety filed a protest. On November 21, 2002, the surety filed a document titled “Supplement to Surety Protest” in which it argued 1) the entry deemed liquidated 2) that a continuous bond may not be used to secure payment of antidumping duties and 3) CBP applied the incorrect rate.

ISSUE

Whether the protest and “supplement” filed thereto, is sufficient under the regulations

LAW and ANALYSIS

Initially, we note that the protest was timely filed insofar as it was filed on October 7, 2002, which was 90 days after the July 10, 2002, mailing date of the formal demand on the surety. See 19 U.S.C. § 1514(c)(3). Section 1514(c)(3) was recently amended by Miscellaneous Trade and Technical Corrections Act of 2004, Pub. L. 108-429, 118 Stat. 2434 (Dec. 4, 2004) and allows sureties to file protests 180 days from the mailing date of the formal demand on the sureties. Since the subject merchandise was entered between June 18, 1999 and August 30, 1999, prior to the date of enactment of the foregoing Act, the amendment does not apply to this case. See Miscellaneous Trade and Technical Corrections Act of 2004 (“The amendments made by this subtitle shall apply to merchandise entered, or withdrawn from warehouse consumption, on or after the 15th day after the date of the enactment of this act.”)

Based on our review of the protest and the documents filed therewith, we have concluded that the protest is not valid. The protest consists of a CF-19 that indicates “See Attached List” in Section II “Detailed Reasons for Protest” and in the “Entry Details” section. There are two attachments—the first attachment is the “Formal Demand on Surety” which lists 26 entries. The second attachment is a letter dated October 4, 2002 and titled “Continuation of CF-19.” The letter states in pertinent part:

We, as surety, who has an unsatisfied legal claim on the bond covering the subject entries, hereby protest this assessment pursuant to Section 514 Tariff Act 1930, as amended, 19 U.S.C. § 1514. . . .

We have requested copies of documents via the Freedom of Information Act. We request Customs hold collection of these bills in abeyance so that we may obtain the documents to examine the viability of the claim. . . .

Pursuant to 19 U.S.C. § 1514(c)(1):

“[a] protest of a decision made under subsection (a) of this section . . .must set forth distinctly and specifically— (A) each decision described in subsection (a) if this section as to which the protest was made; (B) each category of merchandise affected by each decision set forth under paragraph 1; (C) the nature of each objection and the reasons therefor; and (D) any other matter required by the Secretary by regulation.

Based on the foregoing letter, the protestant merely indicates that it is protesting the bill it received-- there is no justification for bringing the protest; therefore, the protest is not valid.

In addition, the protestant’s “Supplement to Surety Protest”, which sets forth the protestant’s basis for the protest, is untimely. The statute, 19 U.S.C. 1514(c)(1), permits amendment to the protest to add new claims are made within the relevant protest period. Section 1514(c)(1), provides:

...[a] protest may be amended, under the regulations prescribed by the Secretary, to set forth objections as to a decision or decisions described in subsection (a) of this section 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. . . .

Under the regulations promulgated under the authority of § 1514(c)(1), 19 C.F.R. § 174.14(a) provides that a “protest may be amended at any time prior to the expiration of the 90-day period within which such protest may be filed determined in accordance with § 174.12(e)[time of filing].” Pursuant to § 174.12(e)(3), the protestant had 90 days from the mailing date of the demand on its bond to file its protest, and thus, pursuant to § 174.14(a), also had 90 days from the mailing date of the demand on its bond to amend its protest. Insofar as the mailing date of the demand was July 10, 2002, the protestant had until October 8, 2002, to file an amendment to its protest. Since the protestant did not file its amendment until November 21, 2002, the amendment was untimely.

Although § 174.28 provides that additional or alternative arguments may be considered before the disposition of a protest, both § 174.14(a) and § 174.28 provide that such arguments may only be considered in support of a valid protest. As discussed above, the protest is not valid. Moreover, “a supplemental claim must challenge the same ‘decisions’ as those challenged in the original protest.” See Fujitsu General America, Inc. v. United States, 283 F.3d 1364, 1372 (Fed. Cir. 2002)(internal citation omitted). The original protest did not challenge any CBP decision, thus, no valid protest was filed and therefore, there was nothing to supplement.

HOLDING

The protest, as filed, is not valid insofar as the protestant failed to set forth the decision it was protesting and the reasons for bringing the protest. Further, the protest amendment was untimely and the arguments presented were not in support of a valid protest. The protest should NOT BE ALLOWED.

In accordance with the Protest/Petition Processing Handbook (CIS HB, January 2002, pp. 18 and 21), you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will make the decision available to CBP personnel, and to the public on the CBP 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,

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