LIQ- 15/4-01/02 RR:CR:DR 228330 CB
Port Director
U.S. Customs Service
200 N. Mariposa Road
Nogales, AZ 85621
RE: Protest and Application for Further Review No. 2604-98-100001; 19 U.S.C. §1677g(a); Assessment of Additional Duties; 19 C.F.R. §351.212(d); assessment of interest; 19 C.F.R. §§174.14(a) and 174.28
Dear Sir/Madam:
The above-referenced protest was forwarded to this office for a determination. We have considered the points raised and a decision follows.
FACTS:
The subject protest covers seventy-nine (79) entries of gray portland cement made between April 16, 1990 and August 29, 1990. The merchandise at issue was the subject of an antidumping investigation (A-201-802). At the time of entry, the merchandise was subject to estimated antidumping duty deposit rate of 56.58%. Accordingly, a bond was posted to cover the estimated dumping duties. Pursuant to a Notice of Preliminary Determination, published in the Federal Register on April 12, 1990 (55 FR 13817), Customs was instructed to suspend liquidation for the subject merchandise entered on or after the date of publication and to require a cash deposit or bond in the amount indicated. In a Notice of Final Determination, published in the Federal Register on July 18, 1990 (55 FR 29244), wherein the Customs Service was advised that the suspension of liquidation remained in effect. The antidumping duty order was published in the Federal Register on August 30, 1990 (55 FR 35443). The suspension of liquidation requirement remained in effect, but cash deposits were required at that time.
The Department of Commerce issued liquidation instructions for gray portland cement on December 23, 1997. Customs was instructed to liquidate relevant entries for the period between April 12, 1990 and July 31, 1991 and assess an antidumping liability of 61.42% of the entered value of the merchandise. The instructions also provided that the interest provisions were not applicable to cash or bonds posted as estimated antidumping duties before the date of publication
of the antidumping duty order. See Customs Message 8357111, dated December 23, 1997. The protested entries were liquidated between February 20 and 27, 1998. The entries were liquidated at the higher dumping rate and interest was also assessed. The subject protest was filed on April 6, 1998 contesting the liquidation with respect to the dumping duties and the interest assessed by Customs.
ISSUE:
1. Whether the assessment of the higher dumping rate with interest was proper in the instant case.
LAW AND ANALYSIS:
Initially, we note that the protest was timely filed under the statutory and regulatory provisions for protests (see 19 U.S.C. §1514 and 19 CFR Part 174). The entries were liquidated between February 20 and 27, 1998 and the subject protest was filed on April 6, 1998.
Section 778 of the Tariff Act of 1930, as amended by the Trade Agreements Act of 1979 (19 U.S.C. §1677g(a)), states the general rule on interest:
[i]nterest 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 1301 of this title, or
(2) the date of a finding under the Antidumping Act, 1921.
19 U.S.C. §1677g(a) (1998 supp.) (emphasis 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. See Timken Co. v. United States, 37 F.3d 1470, 1472 (Fed. Cir. 1994) wherein the court held that the phrase “amounts deposited” refers only to cash deposits of estimated antidumping duties and not to bonds.
We are in agreement with protestant’s contention that liquidation of the subject entries at a higher dumping rate and with the assessment of interest was contrary to law. First, regarding the assessment of interest, the liquidation instructions issued by Commerce specifically provide that the interest provisions are not applicable to cash or bonds posted as estimated antidumping duties before the date of publication of the final order. In the instant case, all of the entries occurred, and estimated antidumping duties were secured through a bond, prior to August 30, 1990. Thus, the interest provisions of 19 U.S.C. §1677g did not apply.
Second, pursuant to 19 C.F.R. §351.212(d), Customs must disregard the difference between the bond amount required under an affirmative preliminary determination and the duty determined under the order when liquidating an entry subject to dumping duties where the bond amount is less than the dumping duty. Thus, duty liability is limited to the amount previously posted. In the instant case, at the time of entry, the weighted average dumping margin for the imported cement was 56.58% and a bond was posted to cover that rate. Under the final determination the deposit rate was raised to 58.38%, a difference of 1.8 percent. Given the fact that the bond secured the estimated dumping duty rate of 56.58%, the entries were improperly liquidated at the higher rate established under the final determination.
HOLDING:
The protest should be ALLOWED.
In accordance with Section 3A(11)(b) of Customs Directive 099 3550 065, dated August 4, 1993, Subject: Revised Protest Directive, 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 or entries in accordance with the decision must be accomplished prior to mailing the decision.
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.customs.ustreas.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
John A. Durant, Director
Commercial Rulings Division