LIQ-4-RR:CR:DR 227689 IOR
Port Director
U.S. Customs Service
Los Angeles-Long Beach Seaport
300 S. Ferry Street
Room 1001
Terminal Island, California 90731
RE: Protest 2704-97-101982; 19 U.S.C. 1505(a); 19 U.S.C. 1505(c); 19 U.S.C. 1673b(d)(1)(B); 19 U.S.C. 1673(c)(2)(B); 19 U.S.C. 1677g(a); antidumping duty deposit; interest; HQ 226623
Dear Port Director:
This is in reference to Protest 2704-97-101982 which concerns the refund of antidumping duty deposits without interest on sixty-one entries. The entries were made between November 14, 1995 and April 29, 1996, and were liquidated on March 21 and March 28, 1997. This protest was timely filed on June 4, 1997. This decision follows an October 14, 1998 meeting between counsel for protestant and staff of the Duty and Refund Determination Branch.
FACTS:
On June 4, 1996, the International Trade Commission notified the Department of Commerce of its negative final determination in the antidumping duty investigation of bicycles from the People's Republic of China (PRC) (Case A-570-843) (ADCVD message 6158117, dated June 6, 1996). The investigation was then terminated and the suspension of liquidation of shipments of this merchandise (entered or withdrawn from warehouse) for consumption between November 9, 1995 and May 7, 1996, was discontinued. Id. Any antidumping duties deposited on entry summaries of this merchandise were to be refunded without interest pursuant to “section 778 of the Tariff Act of 1930 [19 U.S.C. 1677g(a)].” Id.
The protestant, Dynacraft Industries, Inc., entered merchandise for consumption during the suspension period with antidumping duty deposits. Entry summaries submitted with the
protest (five representative entry summaries were provided)
indicate that Dynacraft imported bicycle wheels from the PRC under subheading 8712.00.15, Harmonized Tariff Schedule of the United States (HTSUS). A cash deposit of antidumping duties at a rate of 5.29% ad valorem was made at this time. Following the negative final determination in the antidumping duty investigation, Dynacraft's entries were liquidated and the antidumping duty deposits were refunded without interest.
ISSUE:
Whether the interest provision of 19 U.S.C. 1505 applies to cash deposits of antidumping duties made pursuant to 19 U.S.C. 1673b(d)(1)(B), in the event no interest was required under 19 U.S.C. 1677g(a).
LAW AND ANALYSIS:
Section 778 of the Tariff Act of 1930, as amended (19 U.S.C. 1677g(a)), provides that “[i]nterest shall be payable on overpayments and underpayments of amounts deposited on merchandise entered, or withdrawn from warehouse, for consumption on and after” the date of publication of a countervailing or antidumping duty order. In HQ 226263, dated December 10, 1996, we stated that the courts have conclusively held that 19 U.S.C. 1677g “requires interest only when a cash deposit of estimated duties is required under an antidumping order.” The subject entries were not made under an antidumping order requiring a cash deposit. As such, interest on the overpayment of antidumping duties pursuant to 19 U.S.C. 1677g(a) was not required. However, the protestant seeks interest on the amount of the overpayment pursuant to 19 U.S.C. 1505(c).
The interest requirement of 19 U.S.C. 1505(c) is linked to 19 U.S.C. 1505(a), which provides that “[u]nless merchandise is entered for warehouse or transportation, or under bond, the importer of record shall deposit with the Customs Service at the time of making entry, or at such later time as the Secretary may prescribe by regulation, the amount of duties and fees estimated to be payable thereon.” To trigger liability under 19 U.S.C. 1505(c), the importer must have deposited an estimated duty or fee at the time of entry. In this case, Dynacraft did not deposit an estimated duty or fee, but posted a cash deposit, as security pursuant to 19 U.S.C. 1673b(d)(1)(B).
19 U.S.C. 1673b(d)(1)(B) provides that “[i]f the preliminary determination of the administering authority under subsection (b) of this section is affirmative, the administering authority . . .
shall order the posting of a cash deposit, bond, or other security, as the administering authority deems appropriate, for each entry of the subject merchandise . . . (emphasis added).” See 19 CFR 353.15(a)(3). Further, 19 U.S.C. 1673d(c)(2)(B) provides that following a negative determination by the Commission, as in the instant case, the investigation shall be terminated and the administering authority shall “release any bond or other security, and refund any cash deposit, required under section 1673b(d)(1)(B) of this title.”
We note that Dynacraft elected to pay a cash deposit rather than posting a bond or other security pursuant to section 1673b(d)(1)(B). A cash deposit made pursuant to this section is not a deposit of an estimated duty or fee, but, like a bond, simply a form of security. Accordingly, 19 U.S.C. 1505(a), and therefore, 19 U.S.C. 1505(c), the interest provision, are inapplicable in this instance.
HOLDING:
Cash deposits posted pursuant to 19 U.S.C. 1673b(d)(1)(B) are not estimated “duties and fees,” as provided by 19 U.S.C. 1505(a), and therefore, the interest provision, 19 U.S.C. 1505(c), does not apply. The protest should be DENIED.
In accordance with section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision, together with the Customs Form 19, should be mailed by your office 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 the 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, Freedom of Information Act and other public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division