ENT-1-03/LIQ-4-01-CO:R:C:E 224618 JRS
District Director of Customs
ATTN: Protest Review Unit
300 South Ferry Street, Terminal Island
San Pedro, California 90731
RE: Application for further review of Protest No. 2704-93-
100499; Interest; Antidumping duties; 19 U.S.C. 1677g(a);
19 CFR 353.24(c); Timken Co. v. United States, 777 F. Supp. 20
(CIT 1991)
Dear Sir:
The above-referenced protest was forwarded to this office
for further review. We have considered the issue raised and our
decision follows.
FACTS:
This protest involves three entries filed on November 15,
1983, December 16, 1983 and January 13, 1984, on importations of
pressure sensitive plastic tape manufactured by Comet, S.A.R.A.,
Italy. This merchandise is subject to an affirmative antidumping
finding (T.D. 77-258) published on October 21, 1977 (42 FR
56110). The Trade Agreements Act of 1979 transferred the
administration of the antidumping laws from the Department of the
Treasury to the Department of Commerce on January 2, 1980.
Annual administrative reviews of antidumping findings issued by
Treasury were required by section 751 of the Tariff Act of 1930.
On August 5, 1983, the International Trade Administration,
Department of Commerce, issued its notice of Final Results of
Administrative Review of Antidumping Finding [A-475-059] in the
Federal Register (48 FR 35686-35688). Therein, Customs was
instructed to assess antidumping duties against all subject
entries (including Comet) of said merchandise at the margin of
2.79% and to require a cash deposit of estimated antidumping
duties based on the 2.79% margin entered or withdrawn from
warehouse, for consumption on or after the date of publication of
the notice in the Federal Register. This margin was in effect at
the time each of the three entries were filed. No antidumping
duty deposit, however, was presented with any of the entries.
Customs issued CIE 2/90, dated August 6, 1990, relating to
suspension of liquidation and liquidation instructions from the
original Department of Commerce (DOC)'s telexes that were
published during the period of 12/3/85 through 1/23/88 on the
applicable rates and periods for the various manufacturers and
exporters for whom DOC had not received a request for an
administrative review for certain antidumping duty findings,
including A-475-059. DOC stated that interest shall be
calculated from the date of payment of estimated duties through
the date of liquidation only for those entries made after
January 1, 1980. The 1979 Act introduced both the provision
requiring actual cash deposits of estimated dumping duties
pending liquidation (19 U.S.C. 1673e(a)(3)) and the corresponding
provision requiring the imposition of interest whenever the
estimated duties on deposit differed from the actual duties due
(19 U.S.C. 1677g(a)).
All three entries were liquidated on November 20, 1992, with
an increase of duties, which included both the 2.79% antidumping
duty margin and interest on these duties from the dates of entry
to the date of liquidation. The importer filed a protest on
February 9, 1993, against the assessment of interest.
It is the protestant's argument that no interest can be
charged because no antidumping deposit was made. As authority
for his position, the protestant cites Timken Co. v. United
States, 777 F. Supp. 20 (CIT 1991) and states that "[i]n Timken,
it was decided that interest cannot be charged against unpaid
anti-dumping duties when no deposit was made."
ISSUE:
Whether interest is properly assessed on liquidation of an
entry for which an importer did not make the required cash
deposit specified in an Antidumping Duty Order or Finding or, an
Administrative Review relating to such Order or Finding.
LAW AND ANALYSIS:
We note that the protest was timely filed on February 9,
1993, in accordance with 19 U.S.C. 1514(c)(2)(A), 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 challenges the assessment of interest on antidumping
duties and not the antidumping duty determination itself.
Section 778 of the Tariff Act, as amended by the Trade
Agreements Act of 1979 (19 U.S.C. 1677g(a)), states the general
rule on interest:
Interest shall be payable on overpayments and underpayments
of amounts deposited on merchandise entered, or withdrawn
from warehouse, for consumption on and after --
(1) the date of the publication of a countervailing or
antidumping duty order under this subtitle or section
1303 of this title, or
(2) the date of a finding under the Antidumping Act,
1921.
19 U.S.C. 1677g(a)(1992 supp.)(Underlining added). This
provision contemplates situations where a cash deposit is
required to have been made upon entry, rather than where a bond
is required because interest is only collectable on cash
deposits.
The Commerce Regulation, 19 CFR 353.24(c), provides that
interest is to be calculated "from the date that a cash deposit
is required to be deposited for the entry through the date of
liquidation of the entry." We agree with the Customs district
office's position that "date ... required" refers to the date
that a notice to the public (published in the Federal Register)
requires a cash deposit to be made on the particular class of
merchandise. A cash deposit of zero is a cash deposit for the
purpose of assessing interest. If a pre-1980 Antidumping Duty
Order or Finding is silent about deposit, the Customs district
office believes that interest does not accrue on entries filed
prior to the date that deposit instructions are finally
published. We are in agreement.
At the time of the filing of the 3 protested entries in this
case, however, cash deposits of 2.79% were required pursuant to
the 1983 administrative review under section 751 of the pre-1980
Antidumping Finding. It is our opinion that even if the importer
did not make the required deposit at the time of entry or the
deposit was zero, so long as the importer remains liable for the
antidumping duties, interest is applicable. Thus, interest is
properly assessed against the 3 entries. Customs must assess
interest on underpayments (including nonpayment of antidumping
duties) or pay interest on overpayments of the required cash
deposits for entries made after 1980. The failure of the
protestant to make the required cash deposit does not excuse him
from the payment of interest on his nonpayment of the required
cash deposit of 2.79%. He remains liable for the interest
notwithstanding his nonpayment or underpayment.
We are in agreement with Customs Los Angeles district's
position that even if the importer failed to adhere to the
publication of the deposit instructions and Customs failed to
compel adherence, interest accrues on any subject entry filed
after publication of the instructions.
We reject the protestant's reliance on Timken, supra, for
the following reasons. In Timken, the entries were filed before
the dumping margins were established by Commerce in its notice of
final results on June 1, 1990. In contrast, the entries in this
protest were filed after the margin had been established and
published in the Federal Register on August 5, 1983 (i.e.,
between November 15, 1983 and January 13, 1984). Secondly, in
Timken, there was no requirement to deposit cash at the time the
entries were filed, whereas in this protest, the final results of
an administrative review pertaining to pressure sensitive plastic
tape from Italy specifically required a cash deposit of 2.79% of
antidumping duties for entries (Comet) filed on or after August
5, 1983. (48 FR 35688). Finally, in Timken, Commerce instructed
Customs not to assess interest on the entries at the time of
liquidation. The reasoning was that the merchandise was entered
upon security (bonds), including the entries made after 1980, and
therefore, according to Commerce, interest cannot be imposed
pursuant to 19 U.S.C. 1677g. In this case, the liquidation
instructions from Commerce (reissued by Headquarters as CIE 2/90
on August 6, 1990) specifically advised the field to assess
interest because cash deposits were required.
Interest is properly assessed, in accordance with 19 CFR
353.24(b), on the underpayment (technically nonpayment in this
case) of duties for the protested entries represented by the
difference between the cash deposit of estimated antidumping
duties on the date of entry (that is, the deposit of $0 dollars
by the importer) and the final amount of assessed dumping duties
due on the date of liquidation.
HOLDING:
Interest is properly assessed on liquidation of an entry for
which an importer did not pay the required cash deposit at the
time of entry specified in the final results of an administrative
review relating to an antidumping duty finding.
Therefore, you are instructed 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, a
copy of this decision should be mailed by your office to the
protestant no later than 60 days from the date of this letter
along with the Customs Form 19, Notice of Action. 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 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