Slip Op. 00-98
United States Court of International Trade
FUJITSU GENERAL AMERICA, INC.,
SUCCESSOR-IN-INTEREST TO TEKNIKA,
ELECTRONICS CORP.,
Plaintiff,
Before: Pogue, Judge
v.
Consol. Ct. No. 98-08-02748
UNITED STATES,
Defendant.
[Plaintiff’s motion for summary judgment denied; Defendant’s cross-
motion for summary judgment granted.]
Decided: August 15, 2000
Greenberg Traurig LLP, (Brian S. Goldstein) for Plaintiff.
David W. Ogden, Assistant Attorney General, John J. Mahon,
Assistant Branch Director, International Trade Field Office, James
A. Curley, Attorney, Commercial Litigation Branch, Civil Division,
U.S. Department of Justice; Chi S. Choy, Office of Assistant Chief
Counsel, International Trade Litigation, U.S. Customs Service, Of
Counsel; Melanie A. Frank, Office of Assistant Chief Counsel for
Import Administration, U.S. Department of Commerce, Of Counsel, for
Defendant.
OPINION
Pogue, Judge: Plaintiff Fujitsu General America, Inc. ("Fujitsu")
moves for summary judgment pursuant to USCIT Rule 56.1
1
This matter originated as two separate court actions, No.
98-08-02748 and No. 98-09-02900, brought by Fujitsu. Because the
Consol. Ct. No. 98-08-02748 Page 2
Specifically, Fujitsu moves this Court to order the U.S. Customs
Service ("Customs") to refund to Fujitsu all antidumping duties and
interest assessed by Customs on certain of Fujitsu’s entries upon
liquidation.2 Fujitsu claims that it is entitled to an antidumping
duty refund because the entries in issue were "deemed liquidated,"
or liquidated by operation of law, not at the rate assessed by
Customs, but "at the rate of duty, value, quantity, and amount of
duty asserted at the time of entry by the importer of record"
pursuant to 19 U.S.C. § 1504(d). In the alternative, Fujitsu
asserts that, if the entries were not deemed liquidated, Customs
should not have assessed interest. In turn, if Customs properly
assessed interest on the antidumping duty payments, Fujitsu claims
that Customs should have charged simple, rather than compound,
interest.
two actions shared the same legal issues as well as the same
basic circumstances, however, the Court, with the parties’
approval, sua sponte consolidated the actions.
Party briefs submitted under Court No. 98-08-02748 will be
marked "I," and briefs submitted under Court No. 98-09-02900 will
be marked "II." For instance, we will cite to Fujitsu’s
memorandum of law in support of its motion for summary judgment
filed under Court No. 98-08-02748 as "Pl.’s Mem. in Supp. of Mot.
SJ I," and we will to cite to Fujitsu’s memorandum of law in
support of its motion for summary judgment filed under Court No.
98-09-02900 as "Pl.’s Mem. in Supp. of Mot. SJ II."
2
"Liquidation" is "the final computation or ascertainment of
the duties or drawback accruing on an entry." 19 C.F.R. § 159.1
(1997).
Consol. Ct. No. 98-08-02748 Page 3
Defendant, the United States, cross-moves for summary judgment
under USCIT Rule 56, contending that Customs properly liquidated
Fujitsu’s entries at the antidumping duty rate calculated by the
U.S. Department of Commerce ("Commerce") and properly charged
interest at the compound rate.
Background
The merchandise in issue consists of televisions from Japan
manufactured by Fujitsu General Limited (formerly known as General
Corporation) and imported into the United States by Teknika
Electronics Corp.3
Imports of televisions from Japan are subject to a 1971
antidumping duty finding by the Treasury Department under the
Antidumping Act, 1921, 19 U.S.C. §§ 160-173 (1970). See Television
Receiving Sets, Monochrome and Color, From Japan, 36 Fed. Reg.
4,597 (Dep’t Treas., Mar. 10, 1971)(antidumping finding). In 1980,
the functions of administering the antidumping law were transferred
from the Secretary of the Treasury to the Secretary of Commerce.4
3
Plaintiff Fujitsu is the successor-in-interest to Teknika
Electronics Corp. For the sake of clarity, the Court will
hereafter simply refer to Fujitsu as if it were the actual
importer.
4
The Trade Agreements Act of 1979 repealed the Antidumping
Act, 1921, and enacted a new antidumping law as part of Title VII
Consol. Ct. No. 98-08-02748 Page 4
Because Treasury’s finding covering imports of Japanese televisions
remained in effect on January 1, 1980, the effective date of the
Trade Agreements Act of 1979, the amount of duties imposed under
the finding became subject to periodic reviews administered by
Commerce pursuant to 19 U.S.C. § 1675(a).
Under the administrative review scheme,
At least once during each 12-month period beginning on
the anniversary of the date of publication of . . . an
antidumping duty order under [19 U.S.C. § 1673e] or a
finding under the Antidumping Act, 1921, . . . [Commerce]
. . . shall . . . review, and determine . . . the amount
of any antidumping duty, and . . . shall publish in the
Federal Register the results of such review, together
with notice of any duty to be assessed [and] estimated
duty to be deposited . . . .
19 U.S.C. § 1675(a)(1994).5 Thus, upon completion of an
administrative review and liquidation, antidumping duties are
assessed on the entries of imports covered by the review period,
and cash deposits of estimated antidumping duties are collected for
all future entries.
On February 11, 1991, Commerce published the final results of
an administrative review that covered, for entries of Fujitsu
of the Tariff Act of 1930. See Pub. L. 96-39, Title I, §§ 101,
106(a), 93 Stat. 150-189, 193 (1979). Administration of the law
was simultaneously transferred from Treasury to Commerce.
5
Although the administrative reviews applicable to this case
were conducted under prior versions of 19 U.S.C. § 1675, the
relevant language has essentially remained the same.
Consol. Ct. No. 98-08-02748 Page 5
General Limited, the periods March 1, 1986, through February 28,
1987; March 1, 1987, through February 29, 1988; and March 1, 1989,
through February 28, 1990. See Television Receivers, Monochrome
and Color, from Japan, 56 Fed. Reg. 5,392 (Dep’t Commerce, Feb. 11,
1991)(final results admin. review)("Final Results of February 11,
1991"). In this review, Commerce calculated a 35.40% dumping
margin for Fujitsu General Limited. See id. at 5,401.
Pursuant to 19 U.S.C. § 1516a(a)(2)(B)(iii), Fujitsu General
Limited brought suit in the Court of International Trade ("CIT"),
challenging the antidumping duty rate found by Commerce in the
Final Results of February 11, 1991. At the outset of the
litigation, the CIT ordered a preliminary injunction pursuant to 19
U.S.C. § 1516a(c)(2), which enjoined liquidation of Fujitsu General
Limited televisions entered from March 20, 1986, through March 11,
1988 (the "subject entries"). Thus, the court suspended the
liquidation of the subject entries of televisions at the
antidumping rate determined by Commerce in the Final Results of
February 11, 1991.
On April 27, 1993, Commerce filed a motion with the court
requesting that the case be remanded with respect to seven issues
raised by Fujitsu General Limited. The court granted Commerce’s
motion. Subsequently, on March 28, 1994, Commerce filed its remand
Consol. Ct. No. 98-08-02748 Page 6
determination with the court. On remand, Commerce reduced the
antidumping margin it had previously found in the Final Results of
February 11, 1991 to 26.17%. On March 14, 1995, the CIT affirmed
Commerce’s Final Results of February 11, 1991, as modified by
Commerce’s remand determination ("Modified Final Results of
February 11, 1991"). See Fujitsu General Ltd. v. United States, 19
CIT 359, 883 F. Supp. 728 (1995). Following appeal, the Federal
Circuit affirmed the CIT’s decision on July 3, 1996, see Fujitsu
General Ltd. v. United States, 88 F.3d 1034 (Fed. Cir. 1996), and
issued its mandate on August 26, 1996.
On September 16, 1997, Commerce published notice of the
Federal Circuit’s July 3, 1996, decision affirming Commerce’s
Modified Final Results of February 11, 1991. Television Receivers,
Monochrome and Color, From Japan, 62 Fed. Reg. 48,592 (Dep’t
Commerce, Sept. 16, 1997)(notice of final court decision and am.
final results admin. review). On September 26, 1997, Commerce sent
liquidation instructions to Customs via e-mail. See Liquidation
Instructions for Television Receivers, Monochrome and Color, from
Japan Manufactured and/or Exported by Fujitsu General Limited for
the Periods March 1, 1986 through February 28, 1997; March 1, 1987
through February 29, 1988; and March 1, 1989 through February 28,
1990 (A-588-015) (Dep’t Commerce, Sept. 26, 1997)("Liquidation
Consol. Ct. No. 98-08-02748 Page 7
Instructions")(attached to Def.’s Reply Br. to Pl.’s Opp’n to
Def.’s Cross-Mot. for SJ II ("Def.’s Reply Br. II")).
Subsequently, during November 1997, December 1997, and February
1998, Customs liquidated the subject entries.
On February 11, 1998, Fujitsu filed Protest No. 2704-98-100059
with Customs pursuant to 19 U.S.C. § 1514 (1994), against Customs’
liquidations of subject entries on November 14, 1997, and December
5, 1997. See Protest No. 2704-98-100059 (Pl.’s Mem. in Supp. of
Mot. SJ I, Ex. 1). Fujitsu’s protest challenged Customs’
assessment of interest on the subject entries, and alternatively,
Customs’ assessment of interest at a compound rate. See id.
Customs denied Fujitsu’s protest on March 11, 1998. See Pl.’s Mem.
in Supp. of Mot. SJ I, Ex. 2. On April 15, 1998, Fujitsu sent a
letter to Customs arguing that the entries listed in Protest No.
2704-98-100059 "must be deemed liquidated by operation of law at
the rate and amount of antidumping duties asserted at the time of
entry by the importer of record, i.e., zero antidumping duties."
Pl.’s April 15, 1998, Letter to Customs (Pl.’s Mem. in Supp. of
Mot. SJ I, Ex. 3). By letter of June 8, 1998, Customs acknowledged
receipt of Fujitsu’s deemed liquidation argument, but declined to
reconsider its denial of Protest No. 2704-98-100059. See Customs’
June 8, 1998, Letter to Pl. (Pl.’s Mem. in Supp. of Mot. SJ I, Ex.
Consol. Ct. No. 98-08-02748 Page 8
4).
Also on February 11, 1998, Fujitsu filed Protest No. 3001-98-
100026 with Customs, against Customs’ liquidations of entries on
November 28, 1997. See Protest No. 3001-98-100026 (Pl.’s Mem. in
Supp. of Mot. SJ II, Ex. 4). As with Protest No. 2704-98-100059,
this protest challenged Customs’ assessment of interest on the
subject entries, and alternatively, Customs’ assessment of interest
at a compound rate. See id. On March 30, 1998, Fujitsu filed
with Customs an additional claim to supplement Protest No. 3001-98-
100026, again arguing that Customs’ assessment of antidumping duty
principal on the entries liquidated on November 28, 1997, was
unlawful because these entries were deemed liquidated by operation
of law at the rate and amount of antidumping duties asserted at the
time of entry by the importer of record. See Pl.’s Mar. 30, 1998,
Letter to Customs (Pl.’s Mem. in Supp. of Mot. SJ II, Ex. 5). On
April 22, 1998, Customs denied Fujitsu’s protest. See Pl.’s Mem.
in Supp. of Mot. SJ II, Ex. 6.
Finally, Fujitsu filed Protest No. 5301-98-100053 with Customs
on March 24, 1998, against Customs’ liquidation of entry 86-222766-
5 on February 27, 1998. See Protest No. 5301-98-100053 (Pl.’s Mem.
in Supp. of Mot. SJ II, Ex. 1). As with the others, this protest
challenged Customs’ assessment of interest on the subject entries,
Consol. Ct. No. 98-08-02748 Page 9
and alternatively, Customs’ assessment of interest at a compound
rate. See id. On April 1, 1998, Fujitsu again submitted a
supplemental deemed liquidation claim. See Pl.’s Apr. 1, 1998,
Letter to Customs (Pl.’s Mem. in Supp. of Mot. SJ II, Ex. 2). On
April 10, 1998, Customs denied Protest No. 5301-98-100053. See
Pl.’s Mem. in Supp. of Mot. SJ II, Ex. 3.
Subsequently, Fujitsu filed two actions in this Court
addressing the entries covered by the above protests. Now, in
reviewing Fujitsu’s and Defendant’s cross-motions for summary
judgment, we are presented with the following legal issues: (1)
whether the Court has jurisdiction to decide Fujitsu’s deemed
liquidation claim; (2) if so, whether Fujitsu’s entries were deemed
liquidated; (3) if Fujitsu’s entries were not deemed liquidated,
whether Customs properly assessed interest thereon even though no
cash deposits of estimated antidumping duties were required; and
(4) if the assessment of interest was proper, whether Customs
properly assessed interest at the compound rate.
Standard of Review
Summary judgment is appropriate "if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
Consol. Ct. No. 98-08-02748 Page 10
issue as to any material fact and that the moving party is entitled
to judgment as a matter of law." USCIT Rule 56(c); see also
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). Here, there are
no genuine issues of material fact. The issues to be resolved are
legal in nature, and therefore, summary judgment is appropriate.
See USCIT Rule 56(c).
Discussion
I. Does the Court have jurisdiction to hear Fujitsu’s deemed
liquidation claim?
Fujitsu argues,
Although [Commerce] correctly calculated the antidumping
duty principal, Customs’ assessment of the antidumping
duty principal for the subject entries is unlawful. The
entries must be deemed liquidated by operation of law at
the rate and amount of antidumping duties asserted at the
time of entry by the importer of record, i.e., zero
antidumping duties pursuant to 19 U.S.C. § 1504(d)(1994).
Pl.’s Mem. in Supp. of Mot. SJ II at 7-8.
The deemed liquidation provision, 19 U.S.C. § 1504(d)(1988 &
Supp. V 1993), states,
When a suspension required by statute or court order is
removed, the Customs Service shall liquidate the entry
within 6 months after receiving notice of the removal
from the Department of Commerce, other agency, or a court
with jurisdiction over the entry. Any entry not
liquidated by the Customs Service within 6 months after
Consol. Ct. No. 98-08-02748 Page 11
receiving such notice shall be treated as having been
liquidated at the rate of duty, value, quantity, and
amount of duty asserted at the time of entry by the
importer of record.6
Here, liquidation of the subject entries was first suspended
as required by statute, 19 U.S.C. § 1675(a), as Commerce conducted
the administrative reviews it would eventually issue in the Final
Results of February 11, 1991. See United States v. Jick (USA)
Indus. Corp., 22 CIT , , 27 F. Supp. 2d 199, 200-01
(1998)("To establish harmonious interpretations of section 1675(a)
and section 1504(d), this Court has held that because of 1675(a),
the suspension of liquidation during the annual review is required
by statute.")(citing Ambassador Div. of Florsheim Shoe v. United
6
Pub. L. 103-465, Title II, § 220(c)(2), 108 Stat. 4865
(1994), amended the first sentence of 19 U.S.C. § 1504(d) to
state,
Except as provided in section 1675(a)(3) of this title,
when a suspension required by statute or court order is
removed, the Customs Service shall liquidate the entry
within 6 months after receiving notice of the removal
from the Department of Commerce, other agency, or a
court with jurisdiction over the entry.
The underlined portion constitutes the amendment. The amendment
is only applicable to administrative reviews initiated after
January 1, 1995. Because, here, Commerce completed the subject
administrative reviews on February 11, 1991, the amendment does
not apply in this case. Therefore, the Court cites to the prior
version of 19 U.S.C. § 1504(d), which became effective on
December 8, 1993, and may be applied to administrative reviews
commenced before that date.
Consol. Ct. No. 98-08-02748 Page 12
States, 748 F.2d 1560, 1565 (Fed. Cir. 1984); American Permac, Inc.
v. United States, 10 CIT 535, 538-39, 642 F. Supp. 1187, 1190-91
(1986)).
Moreover, the liquidation of the subject entries was enjoined
by court order under 19 U.S.C. § 1516a(c)(2) when Fujitsu General
Limited challenged Commerce’s Final Results of February 11, 1991 in
the CIT. The Federal Circuit issued a decision affirming the
Modified Final Results of February 11, 1991 on July 3, 1996. See
Fujitsu General Ltd., 88 F.3d 1034.
On September 16, 1997, Commerce published notice of the
Federal Circuit’s July 3, 1996, decision affirming Commerce’s
Modified Final Results of February 11, 1991. Commerce stated, "As
there is now a final and conclusive court decision in this action,
we are amending our final results of review in this matter and we
will subsequently instruct the U.S. Customs service to liquidate
entries subject to this review." Television Receivers, Monochrome
and Color, From Japan, 62 Fed. Reg. 48,592 (Dep’t Commerce, Sept.
16, 1997)(notice of final court decision and am. final results
admin. review). On September 26, 1997, Commerce sent its
liquidation instructions to Customs via e-mail. See Liquidation
Instructions. The instructions stated, "These instructions
constitute the immediate lifting of suspension of liquidation of
Consol. Ct. No. 98-08-02748 Page 13
entry summaries for the merchandise and periods listed . . . [,]"
and directed Customs to assess an antidumping rate of 26.17% ad
valorem on the subject entries. Id.
Fujitsu argues that, for the purposes of § 1504(d), Customs
(as well as Commerce) had notice that the court-ordered suspension
of liquidation was removed on July 3, 1996, the date the Federal
Circuit entered its judgment in Fujitsu General Ltd., 88 F.3d 1034.
See Pl.’s Mem. in Supp. of Mot. SJ II at 10. Because Customs did
not liquidate the subject entries until over a year later, Fujitsu
maintains, "well after the six months permitted by 19 U.S.C. §
1504(d), the subject entries must be deemed liquidated by operation
of law . . . ." Id.
In raising its deemed liquidation argument, Fujitsu seeks to
invoke this Court’s jurisdiction under 28 U.S.C. § 1581(i)(1994),7
7
That provision states,
In addition to the jurisdiction conferred upon the
Court of International Trade by subsections (a)-(h) of
this section and subject to the exception set forth in
subsection (j) of this section, the Court of
International Trade shall have exclusive jurisdiction
of any civil action commenced against the United
States, its agencies, or its officers, that arises out
of any law of the United States providing for-
(1) revenue from imports or tonnage;
(2) tariffs, duties, fees, or other taxes on
the importation of merchandise for reasons
other than the raising of revenue;
Consol. Ct. No. 98-08-02748 Page 14
the residual jurisdiction provision. See id. at 7 n.1. "Section
1581(i) jurisdiction[, however,] may not be invoked when
jurisdiction under another subsection of § 1581 is or could have
been available, unless the remedy provided under that other
subsection would be manifestly inadequate." Norcal/Crosetti Foods,
Inc. v. United States, 963 F.2d 356, 359 (Fed. Cir. 1992)(quoting
Miller & Co. v. United States, 824 F.2d 961, 963 (Fed. Cir. 1987)).
Defendant submits that Fujitsu could have invoked this Court’s
jurisdiction under subsection (a) of § 1581 to raise its deemed
liquidation claim; therefore, Fujitsu cannot invoke this Court’s
residual jurisdiction under § 1581(i). See Def.’s Opp’n to Pl.’s
Mot. SJ II at 5-14. Thus, we must first assess whether Fujitsu
could have obtained jurisdiction for its deemed liquidation
argument under § 1581(a) before determining whether Fujitsu may
invoke jurisdiction under § 1581(i).
(3) embargoes or other quantitative
restrictions on the importation of
merchandise for reasons other than the
protection of the public health or safety; or
(4) administration and enforcement with
respect to the matters referred to in
paragraphs (1)-(3) of this subsection and
subsections (a)-(h) of this section.
. . . .
28 U.S.C. § 1581(i).
Consol. Ct. No. 98-08-02748 Page 15
Under 28 U.S.C. § 1581(a), the CIT has exclusive jurisdiction
of any civil action commenced to contest the denial by Customs of
a protest pursuant to 19 U.S.C. § 1515 (1994). Importers protest
Customs decisions under the procedures outlined in 19 U.S.C. §
1514. Under § 1514(a), a protest may only be filed against certain
enumerated Customs "decisions."8 Fujitsu argues that its deemed
liquidation claim does not involve a protestable decision of
Customs, and therefore, the Court has jurisdiction to review the
issue under 28 U.S.C. § 1581(i). See Pl.’s Mem. in Supp. of Mot.
SJ II at 7 n.1.
8
The provision specifies the following Customs’ decisions,
"including the legality of all orders and findings entering into
the same," that may be protested:
(1) the appraised value of merchandise;
(2) the classification and rate and amount of duties
chargeable;
(3) all charges or exactions of whatever character
within the jurisdiction of the Secretary of the
Treasury;
(4) the exclusion of merchandise from entry or delivery
or a demand for redelivery to customs custody under any
provision of the customs laws, except a determination
appealable under section 1337 of this title;
(5) the liquidation or reliquidation of an entry, or
reconciliation as to the issues contained therein, or
any modification thereof;
(6) the refusal to pay a claim for drawback; or
(7) the refusal to reliquidate an entry under section
1520(c) of this title . . . .
19 U.S.C. § 1514(a).
Consol. Ct. No. 98-08-02748 Page 16
The Federal Circuit has explained that, "[t]ypically,
‘decisions’ of Customs [under § 1514(a)] are substantive
determinations involving the application of pertinent law and
precedent to a set of facts, such as tariff classification and
applicable rate of duty." U.S. Shoe Corp. v. United States, 114
F.3d 1564, 1569 (Fed. Cir. 1997), aff’d, 523 U.S. 360 (1998).
Customs does not make a decision in order to effect a deemed
liquidation. Rather, a deemed liquidation under 19 U.S.C. §
1504(d) occurs by operation of law. Therefore, where an importer
believes its entries were deemed liquidated under § 1504(d), and
Customs has not actively liquidated the entries anew, the
importer’s only remedy, at that point, is to seek a declaratory
judgment from the CIT confirming that there was a deemed
liquidation under 28 U.S.C. § 1581(i).
Here, however, notwithstanding Fujitsu’s contention that the
subject entries were deemed liquidated, Customs actively liquidated
the entries in November/December 1997 and February 1998. A Customs
decision to liquidate certain entries anew after the entries had
already been deemed liquidated is a protestable decision under 19
U.S.C. § 1514(a)(5). See Pagoda Trading Corp. v. United States,
804 F.2d 665, 668 (Fed. Cir. 1986). Therefore, once Customs
purportedly liquidated the subject entries, Fujitsu could no longer
Consol. Ct. No. 98-08-02748 Page 17
invoke the CIT’s jurisdiction under 28 U.S.C. § 1581(i), because
Fujitsu was then afforded an adequate remedy under § 1581(a).
In fact, Fujitsu did attempt to raise its deemed liquidation
claim before Customs through the protest procedures of 19 U.S.C. §
1514. Moreover, Fujitsu claims that it raised its deemed
liquidation argument within the time limits prescribed by §
1514(c)(3). See Pl.’s Mem. in Supp. of Mot. SJ II at 7 n.1. If
so, it would be unnecessary to address whether Fujitsu may invoke
this Court’s jurisdiction under 28 U.S.C. § 1581(i) to review this
issue, because jurisdiction under § 1581(a) would be available.
Defendant, however, asserts that, for Protest No. 2704-98-100059
and Protest No. 3001-98-100026, Fujitsu did not submit its deemed
liquidation argument to Customs within the time allowed by §
1514(c), and therefore, the Court lacks jurisdiction under 28
U.S.C. § 1581(a). See Def.’s Opp’n to Pl.’s Mot. SJ II at 5.
Defendant concedes, however, that Plaintiff Fujitsu properly
raised the deemed liquidation issue for entry no. 86-222766-5
within a timely amendment to Protest No. 5301-98-100053. See
Def.’s Opp’n to Pl.’s Mot. SJ II at 14. Therefore, Defendant
believes the Court does have jurisdiction under § 1581(a) to hear
Fujitsu’s deemed liquidation argument as to this entry. See id.
Therefore, we separately address below whether the Court has
Consol. Ct. No. 98-08-02748 Page 18
jurisdiction over (1) the entries covered by protests 2704-98-
100059 and 3001-98-100026 and (2) the entry covered by protest
5301-98-100053.
A. Protests 2704-98-100059 and 3001-98-100026
If Fujitsu filed its deemed liquidation argument within the
time limits prescribed by 19 U.S.C. § 1514(c), then this Court
would have jurisdiction under 28 U.S.C. § 1581(a) to review the
issue in connection with the entries covered by protests 2704-98-
100059 and 3001-98-100026. Section 1514(c)(3) provides that a
protest of a liquidation decision must be filed with Customs within
ninety days after notice of liquidation. Customs affords notice of
liquidations by posting bulletin notices at the customhouse at the
port of entry. See 19 C.F.R. § 159.9(b)(1997). "[Such] bulletin
notices supply sufficient notice and thus trigger the ninety-day
period for protests." Juice Farms, Inc. v. United States, 68 F.3d
1344, 1346 (Fed. Cir. 1995).
Fujitsu filed Protest No. 2704-98-100059 on February 11, 1998,
challenging Customs’ assessment of interest on the subject entries
liquidated on November 14, 1997, and December 5, 1997. See Protest
No. 2704-98-100059 (Pl.’s Mem. in Supp. of Mot. SJ I, Ex. 1). On
March 11, 1998, Customs denied Fujitsu’s protest. See Pl.’s Mem.
in Supp. of Mot. SJ I, Ex. 2. On April 15, 1998, Fujitsu sent a
Consol. Ct. No. 98-08-02748 Page 19
letter supplementing Protest No. 2704-98-100059 to Customs
asserting its argument that the subject entries were deemed
liquidated by operation of law without antidumping duties. See
Pl.’s April 15, 1998, Letter to Customs (Pl.’s Mem. in Supp. of
Mot. SJ I, Ex. 3). Because Fujitsu filed this letter with Customs
well after ninety days of notice of the liquidations, the letter
did not constitute a timely protest under § 1514(c)(3).
In addition, Fujitsu filed Protest No. 3001-98-100026 on
February 11, 1998, challenging Customs’ assessment of interest on
the subject entries liquidated on November 28, 1997. See Protest
No. 3001-98-100026 (Pl.’s Mem. in Supp. of Mot. SJ II, Ex. 4). On
March 30, 1998, Fujitsu filed its deemed liquidation claim to
supplement this protest. See Pl.’s Mar. 30, 1998, Letter to
Customs (Pl.’s Mem. in Supp. of Mot. SJ II, Ex. 5). Because
Fujitsu did not file the deemed liquidation claim with Customs
within ninety days of notice of the liquidations, this claim also
did not constitute a timely protest under § 1514(c)(3).
Thus, Fujitsu’s deemed liquidation claim, for the entries
covered by both the 2704-98-100059 and 3001-98-100026 protests, was
not a timely protest under § 1514(c)(3). In addition, Fujitsu’s
deemed liquidation claim for these entries was not timely as an
"amendment" or "new ground" under § 1514(c)(1).
Consol. Ct. No. 98-08-02748 Page 20
Regarding amendments to protests, Section 1514(c)(1) states,
A protest may be amended, under 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.
See also 19 C.F.R. § 174.14(a)(1997)("The amendment may assert
additional claims pertaining to the administrative decision which
is the subject of the protest, or may challenge an additional
administrative decision relating to the same category of
merchandise which is the subject of the protest.").
Here, Fujitsu’s original protests, No. 2704-98-100059 and No.
3001-98-100026, challenged Customs’ assessment of interest on the
subject entries liquidated by Customs on November 14 and 28, 1997,
and December 5, 1997. Customs’ assessment of interest is a
protestable decision under § 1514(a)(3), which covers "all charges
or exactions." See Castelazo & Assoc. v. United States, 126 F.3d
1460, 1462 (Fed. Cir. 1997)(citing New Zealand Lamb Co., Inc. v.
United States, 40 F.3d 377, 382 (Fed. Cir. 1994)). Meanwhile,
Fujitsu’s deemed liquidation claim, protestable under § 1514(a)(5),
challenges a Customs’ decision separate from the assessment of
interest. See Castelazo, 126 F.3d at 1462-63 ("Under the statute’s
structure and language, as well as this court’s precedent, Customs’
Consol. Ct. No. 98-08-02748 Page 21
decisions on charges or exactions, such as assessed interest, are
independent of its decisions on liquidation or reliquidation [for
the purposes of 19 U.S.C. § 1514].")(citing New Zealand Lamb, 40
F.3d at 382).9
If timely under § 1514(c)(1), Fujitsu’s deemed liquidation
claim would qualify as an amendment to protests 2704-98-100059 and
3001-98-100026. Fujitsu did not, however, submit its deemed
liquidation claim to Customs prior to the expiration of time
allowed for filing such an amendment, i.e., not within ninety days
from notice of the liquidations. See 19 U.S.C. § 1514(c)(1), (3).
Thus, Fujitsu’s deemed liquidation claim was not timely under §
1514(c)(1) as an amendment to either protest 2704-98-100059 or
3001-98-100026.
The time frame for the raising of a "new ground" is longer
9
Here, for instance, Fujitsu’s interest argument challenges
Customs’ decision to assess interest under 19 U.S.C. § 1677g
(1994) on entries for which Fujitsu did not have to actually make
cash deposits. Meanwhile, Fujitsu’s deemed liquidation argument
seeks to void Customs’ liquidation of the subject entries
entirely on the ground that the entries had already been
liquidated by operation of law under 19 U.S.C. § 1504(d). Stated
differently, Fujitsu’s deemed liquidation argument challenges
Customs’ decision as to the timing of the liquidation.
Accordingly, Fujitsu challenges two separate decisions of Customs
for the purposes of 19 U.S.C. § 1514(a). Cf. New Zealand Lamb,
40 F.3d at 381 (rejecting the argument that, "by operation of [19
U.S.C.] § 1677g, the liquidations for increased countervailing
duties amounted to assessments of interest . . . .").
Consol. Ct. No. 98-08-02748 Page 22
than that allowed for an amendment. See 19 U.S.C. §
1514(c)(1)("New grounds in support of objections raised by a valid
protest or amendment thereto may be presented for consideration in
connection with the review of such protest . . . at any time prior
to the disposition of the protest . . . .") Unlike an amendment,
however, a new ground is an additional claim challenging a Customs
decision under § 1514(a) that an importer already challenged via a
timely protest. See id.; see also 19 C.F.R. § 174.28 (1997)("[A]
reviewing officer may consider alternative claims and additional
grounds or arguments submitted in writing by the protesting party
with respect to any decision which is the subject of a valid
protest at any time prior to disposition of the protest.")(emphasis
added). Thus, Fujitsu’s deemed liquidation claim does not
constitute a new ground, because, as noted above, deemed
liquidation is a protestable decision separate from the assessment
of interest under § 1514(a). See Castelazo, 126 F.3d at 1462-63;
New Zealand, 40 F.3d at 382.10
10
Moreover, it is clear that Fujitsu’s deemed liquidation
argument submitted to supplement Protest No. 2704-98-100059 would
not be timely as a new ground under any circumstance, because it
was submitted after Customs’ denial of the protest. See 19
U.S.C. § 1514(c)(1); Protest No. 2704-98-100059 (Pl.’s Mem. in
Supp. of Mot. SJ I, Ex. 1); Pl.’s Mem. in Supp. of Mot. SJ I, Ex.
2).
Consol. Ct. No. 98-08-02748 Page 23
Therefore, Fujitsu’s deemed liquidation claim, submitted to
supplement both protests 2704-98-100059 and 3001-98-100026, was not
timely under 19 U.S.C. § 1514(c). Because the deemed liquidation
claim was not timely under § 1514(c), this Court lacks jurisdiction
to review the issue under 28 U.S.C. § 1581(a) for the entries
covered by these protests. Moreover, for the purposes of invoking
this Court’s residual jurisdiction under § 1581(i), jurisdiction
under § 1581(a) is not inadequate simply because an importer failed
to meet the protest deadline under 19 U.S.C. § 1514(c). See Juice
Farms, 68 F.3d at 1346. Therefore, because Fujitsu could have
invoked this Court’s jurisdiction under 28 U.S.C. § 1581(a), and
that avenue was not "manifestly inadequate," this Court does not
have jurisdiction to review the deemed liquidation claim under §
1581(i). See Miller, 824 F.2d at 963.
Despite the well-established rule articulated by the Federal
Circuit in Miller, however, Fujitsu argues that this Court has
jurisdiction under § 1581(i) to review the deemed liquidation
claim--for the entries covered by protests 2704-98-100059 and 3001-
98-100026--based on the Federal Circuit’s holding in United States
v. Cherry Hill Textiles, Inc., 112 F.3d 1550 (Fed. Cir. 1997). See
Pl.’s Mem. in Supp. Mot. SJ II at 5-7; Pl.’s Opp’n to Def.’s Cross-
Mot. SJ II at 6-7.
Consol. Ct. No. 98-08-02748 Page 24
Fujitsu argues that the Federal Circuit’s decision in Cherry
Hill instructs that Fujitsu did not have to file a protest under 19
U.S.C. § 1514(a) in order to challenge the validity of Customs’
purported liquidations in court on the ground that the subject
entries had already been liquidated by operation of law. See Pl.’s
Mem. in Supp. of Mot. SJ II at 6. Because a § 1514(a) protest was
unnecessary, Fujitsu asserts that the Court has jurisdiction to
review its deemed liquidation claim under 28 U.S.C. § 1581(i). See
Pl.’s Mem. in Supp. of Mot. SJ II at 3, 5.
Cherry Hill does not, however, extend as broadly as Fujitsu
would have it. Cherry Hill did not address the issue of whether an
importer may invoke the CIT’s jurisdiction under 28 U.S.C. §
1581(i) to raise the issue of deemed liquidation in order to
invalidate a subsequent liquidation by Customs. Rather, Cherry
Hill involved an enforcement action brought by the government for
the recovery of customs duties. See United States v. Cherry Hill
Textiles, Inc., 19 CIT 792, 792-93, 888 F. Supp. 1202, 1204 (1995).
As such, the importer, Cherry Hill Textiles, Inc., and its surety,
International Cargo & Surety Insurance Company ("IC&S"), were
defendants, and jurisdiction of the CIT was predicated on 28 U.S.C.
§ 1582(2) & (3). See id. at 793, 888 F. Supp. at 1204. IC&S
sought to raise as an affirmative defense that the importer was not
Consol. Ct. No. 98-08-02748 Page 25
required to pay the duties on the ground that Customs’ purported
liquidation had already been deemed liquidated at a duty-free rate
under 19 U.S.C. § 1504(a). See id. The CIT held that, because
IC&S did not protest Customs’ liquidation through the procedures
prescribed by 19 U.S.C. § 1514, IC&S had waived the opportunity to
raise deemed liquidation as an affirmative defense. See id. at
795-96, 888 F. Supp. at 1205-06.
On appeal, and like the CIT, the Federal Circuit rejected
IC&S’s primary argument that the protest requirement of 19 U.S.C.
§ 1514 does not apply in a government enforcement action. See
Cherry Hill, 112 F.3d at 1557-58. Indeed, the court expressly held
that, generally, one must challenge a Customs liquidation through
a valid § 1514 protest in order to be entitled to raise the issue
in court. See id. at 1557 ("The language of section 1514, that a
liquidation will be ‘final and conclusive’ unless protested, is
sufficiently broad that it indicates that Congress meant to
foreclose unprotested issues from being raised in any context, not
simply to impose a prerequisite to bringing suit.").
The Federal Circuit reversed the CIT, however, on a narrower
ground. Despite the general rule that, without timely protest, all
liquidations, whether legal or not, become final and conclusive
under 19 U.S.C. § 1514, the court concluded that IC&S’s deemed
Consol. Ct. No. 98-08-02748 Page 26
liquidation issue "did not have to be raised through a protest, and
that the trial court should have considered [the] issue on the
merits." Id. at 1558. In so doing, the court distinguished other
Federal Circuit cases that had adhered to the general rule and
denied the importer the right to challenge a Customs liquidation in
court for failure to initiate a § 1514 protest:
The problem with the liquidation at issue in this case .
. . is of a different character. The asserted flaw in
this case is not in the accuracy of the liquidation or
the lawfulness of the process leading up to it, but in
the effect that the government seeks to give it--the
effect of displacing the liquidation that had already
taken effect by operation of law pursuant to the ‘deemed
liquidation’ statute, 19 U.S.C. § 1504(a).
Id. at 1559 (distinguishing Juice Farms, 68 F.3d 1344; Omni U.S.A.,
Inc. v. United States, 840 F.2d 912 (Fed. Cir. 1988); and United
States v. A.N. Deringer, Inc., 66 C.C.P.A. 50 (1979)). Thus, the
Federal Circuit recognized a distinction for a deemed liquidation
argument.
Buttressing the court’s reasoning was the potential for abuse
if an importer or surety were required to protest a liquidation in
order to preserve the right to challenge it on the ground of deemed
liquidation. See id. at 1560. The court explained that, if such
were the case,
[T]here would be nothing, in theory, that would prevent
Customs from conducting multiple successive liquidations
Consol. Ct. No. 98-08-02748 Page 27
of the same entry and requiring the importer or surety to
assume the burdens of protesting each one. Likewise,
Customs could purport to liquidate an entry anew, years
after the first liquidation had become final, and thereby
impose liability on the importer or surety if the
importer or surety were not vigilant in watching for
notice of such untimely liquidations or if it were no
longer able to undertake the burden of filing and
pursuing a protest.
The potential for abuse from a rule requiring protests in
such cases is sufficiently plain that we think it
unlikely that Congress would have intended the protest
requirement to apply so broadly.
Id. at 1560.
Thus, Cherry Hill stands for the proposition that an importer
need not protest a purported liquidation by Customs "in order to be
entitled to defend against liability on the ground of the deemed
liquidation." Id. The case before us, however, is different.
Here, Fujitsu does not seek to raise its deemed liquidation claim
as a defense; rather, Fujitsu seeks to bring action in this Court
under 28 U.S.C. § 1581(i). As noted above, it is well-established
that "[s]ection 1581(i) jurisdiction may not be invoked when
jurisdiction under another subsection of § 1581 is or could have
been available, unless the remedy provided under that other
subsection would be manifestly inadequate." Miller, 824 F.2d at
963. Above, we established that Fujitsu could have protested
Customs’ purported liquidations under 19 U.S.C. § 1514(a)(5). Such
Consol. Ct. No. 98-08-02748 Page 28
action would have afforded Fujitsu jurisdiction in this Court under
28 U.S.C. § 1581(a). Indeed, as demonstrated above, Fujitsu did
attempt to raise its deemed liquidation argument before Customs;
Fujitsu simply did not meet the timeliness requirement for protests
under 19 U.S.C. § 1514(c). Cherry Hill did not address whether an
importer may invoke the CIT’s jurisdiction under § 1581(i) to raise
the issue of deemed liquidation in order to invalidate a subsequent
liquidation by Customs. To find that Cherry Hill affords Fujitsu
jurisdiction under 28 U.S.C. § 1581(i) to raise its deemed
liquidation argument in the circumstances of this case would
require us to create an exception to the well-established § 1581(i)
that we are unwilling to make.
Moreover, our holding does not impair the important policy
considerations discussed in Cherry Hill. As quoted above, the
Federal Circuit expressed concern that to deny IC&S the right to
defend on the ground of deemed liquidation would allow Customs to
conduct multiple liquidations and force the importer or surety to
protest each one. See Cherry Hill, 112 F.3d at 1560. Such abuse
will not result from our decision in this case.
Here, for instance, once Customs liquidated the subject
entries, Fujitsu was faced with a curious election of remedies.
Fujitsu could have either protested the purported liquidation
Consol. Ct. No. 98-08-02748 Page 29
through the § 1514 procedure or done nothing and waited for Customs
to bring forth an enforcement action. Had Fujitsu chosen the
latter route, Fujitsu would not have been foreclosed--as a
defendant--from asserting the affirmative defense of deemed
liquidation. Fujitsu did not choose this remedy, however.
Instead, Fujitsu attempted to protest the liquidation under § 1514,
but failed to do so within the provision’s time limits.
Subsequently, Fujitsu brought an action in this Court as plaintiff.
Because Fujitsu had an adequate remedy under 28 U.S.C. § 1581(a),
however, Fujitsu cannot invoke this Court’s jurisdiction under §
1581(i).
Thus, in keeping with Cherry Hill, importers are not required
to protest liquidations by Customs on the ground of deemed
liquidation. But if they choose to do so, they must meet the
requirements of 19 U.S.C. § 1514 to preserve the right to raise the
issue in the CIT as a plaintiff under 28 U.S.C. § 1581(a). The
Court does not have jurisdiction under 28 U.S.C. § 1581(i) to
decide whether the purported liquidation by Customs must be
invalidated on the ground of deemed liquidation.11
11
As indicated above, however, supra pp. 16-17, in a
situation where Customs has not yet actively liquidated entries
that an importer believes had already been deemed liquidated
under § 1504, the importer could invoke the CIT’s jurisdiction
Consol. Ct. No. 98-08-02748 Page 30
Therefore, the Court concludes that it does not have
jurisdiction under § 1581(i) to hear Fujitsu’s deemed liquidation
claims for the entries covered by protests 2704-98-100059 and 3001-
98-100026.
B. Section 1581(a) jurisdiction and Protest No. 5301-98-
100053
Fujitsu filed Protest No. 5301-98-100053 against Customs’
February 27, 1998, liquidation of entry 86-222766-5. On April 1,
1998, Fujitsu submitted to Customs a supplemental deemed
liquidation claim. See Pl.’s Apr. 1, 1998, Letter to Customs
(Pl.’s Mem. in Supp. of Mot. SJ II, Ex. 2). Because Fujitsu filed
the deemed liquidation claim within ninety days of notice of the
liquidation, the claim constitutes a timely amendment to Protest
No. 5301-98-100053 under 19 U.S.C. § 1514(c). Therefore, this
Court has jurisdiction under 28 U.S.C. § 1581(a) to review whether
entry 86-222766-5 was deemed liquidated.
under 28 U.S.C. § 1581(i) to obtain a declaratory judgment to
that effect. Once Customs liquidates, however, the importer is
precluded from invoking § 1581(i) jurisdiction, because, at that
point, Customs has made a protestable decision, thereby creating
the avenue to jurisdiction under § 1581(a).
Consol. Ct. No. 98-08-02748 Page 31
II. Was entry 86-222766-5 deemed liquidated by operation of law
under 19 U.S.C. § 1504(d)?
A. Notice to Customs under § 1504(d)
As outlined above, Fujitsu argues that, under § 1504(d),
Customs had notice that the court-ordered suspension of liquidation
was removed on July 3, 1996, the date the Federal Circuit issued
its decision in Fujitsu General Ltd., 88 F.3d 1034, and entered
judgment. See Pl.’s Mem. in Supp. of Mot. SJ II at 10. Customs
liquidated entry 86-222766-5 on February 27, 1998, well over a year
after the issuance of this decision. Therefore, Fujitsu maintains,
"The [entry] must be deemed liquidated by operation of law at the
rate and amount of antidumping duties asserted at the time of entry
by the importer of record, i.e., zero antidumping duties pursuant
to 19 U.S.C. § 1504(d)(1994)."12 Pl.’s Mem. in Supp. of Mot. SJ II
12
"The amount of duties ‘asserted at the time of entry by
the importer’, within the meaning of § 1504(a) and (d), is not
what the importer desires to assert upon entry, but what the
importer is required by Customs officers to assert when filing
the entry summary." American Permac, 10 CIT at 544 n.12, 642 F.
Supp. at 1195 n.12.
Here, Fujitsu’s goods were entered from March 20, 1986,
through March 11, 1988. The goods entered after June 10, 1985,
and before March 20, 1987, were subject to a zero cash deposit
requirement pursuant to Commerce’s final results issued in
Television Receiving Sets, Monochrome and Color, From Japan, 50
Fed. Reg. 24,278, 24,283 (Dep’t Commerce, June 10, 1985)(final
results admin. review)(finding a zero dumping margin for General
Corporation). Likewise, Commerce waived a cash deposit
requirement for Fujitsu’s goods entered on or after March 20,
Consol. Ct. No. 98-08-02748 Page 32
at 7-8.
Defendant counters that Customs did not have notice that the
suspension of liquidation was removed until Customs received
Commerce’s Liquidation Instructions of September 26, 1997. See
Def.’s Opp’n to Pl.’s Mot. SJ II at 17; Def.’s Reply Br. II at 9.
Customs liquidated entry 86-222766-5 on February 27, 1998.
Therefore, Defendant maintains, because Customs liquidated the
subject entry within six months of receiving notice of the removal
of suspension, the entry was not deemed liquidated under § 1504(d).
The issue to be determined, therefore, is when did Customs
have notice under § 1504(d) that the court-ordered suspension of
liquidation was removed.
In answering this question, it is crucial to keep in mind the
context in which the CIT first ordered that liquidation of the
subject entries be enjoined. Substantively, the CIT was reviewing
1987, and before February 11, 1988, pursuant to the final results
issued in Television Receivers, Monochrome and Color, From Japan,
52 Fed. Reg. 8,940, 8,947 (Dep’t Commerce, Mar. 20, 1987)(final
results admin. review)(finding a de minimis dumping margin for
Fujitsu General Limited). Fujitsu’s entry 110-0639314-1, dated
March 11, 1988, was entered after February 11, 1988, and
therefore, was subject to a 4.06% cash deposit rate pursuant to
the final results issued in Television Receivers, Monochrome and
Color, From Japan, 53 Fed. Reg. 4,050, 4,055 (Dep’t Commerce,
Feb. 11, 1988)(final results admin. review)(finding a 4.06%
dumping margin for Fujitsu General Limited).
Consol. Ct. No. 98-08-02748 Page 33
the final results of an administrative review conducted by
Commerce. Thus, the CIT reviewed Commerce’s Final Results of
February 11, 1991 pursuant to 19 U.S.C. § 1516a, which governs
judicial review in countervailing duty and antidumping duty
proceedings. Under the authority of § 1516a(c)(2), the CIT ordered
that the liquidation of the subject entries be enjoined.
Subsection 1516a(e) explains how liquidation will proceed
where entries are subject to a determination that is being
judicially reviewed pursuant to § 1516a. The provision states,
If the cause of action is sustained in whole or in part
by a decision of the United States Court of International
Trade or of the United States Court of Appeals for the
Federal CircuitB
(1) entries of merchandise of the character
covered by the published determination of the
Secretary, the administering authority, or the
Commission, which is entered, or withdrawn
from warehouse, for consumption after the date
of publication in the Federal Register by the
Secretary or the administering authority of a
notice of the court decision, and
(2) entries, the liquidation of which was
enjoined under subsection (c)(2) of this
section,
shall be liquidated in accordance with the final court
decision in the action. Such notice of the court
decision shall be published within ten days from the date
of the issuance of the court decision.
19 U.S.C. § 1516a(e). Thus, for purposes of liquidation, the
Consol. Ct. No. 98-08-02748 Page 34
statute distinguishes entries that are not enjoined from those that
are enjoined pursuant to § 1516a(c)(2).
Here, when Fujitsu General Limited brought suit in the CIT
challenging Commerce’s Final Results of February 11, 1991, the
court ordered an injunction enjoining liquidation of the subject
entries pursuant to § 1516a(c)(2). Section 1516a(e)(2) of Title 19
directs that "entries, the liquidation of which was enjoined under
[§ 1516a(c)(2)], shall be liquidated in accordance with the final
court decision in the action." (Emphasis added.) "Final" in the
context of § 1516a(e) means "conclusive;" a court decision is
conclusive when it can no longer be appealed. See Timken Co. v.
United States, 893 F.2d 337, 339-40 (Fed. Cir. 1990). Therefore,
"§ 1516a(e) requires that liquidation, once enjoined, remains
suspended until there is a ‘conclusive court decision which decides
the matter . . . . ‘" Hosiden Corp. v. Advanced Display Mfrs. of
Am., 85 F.3d 589, 591 (Fed. Cir. 1996)(quoting Timken, 893 F.2d at
342).
The Federal Circuit issued its decision affirming Commerce’s
Modified Final Results of February 11, 1991 on July 3, 1996. See
Fujitsu General Ltd., 88 F.3d 1034. That decision was not
conclusive, however, until the time allowed for applying for a writ
of certiorari for review in the U.S. Supreme Court expired on
Consol. Ct. No. 98-08-02748 Page 35
October 1, 1996.13 See 28 U.S.C. § 2101(c)(1994)("[A]ny writ of
certiorari intended to bring any judgment . . . in a civil action
. . . before the Supreme Court for review shall be . . . applied
for within ninety days after the entry of such judgment . . . .").
Therefore, contrary to Fujitsu’s assertion, the Federal Circuit’s
decision of July 3, 1996, could not have served as notice to
Customs of the removal of the court-ordered suspension, because,
under 19 U.S.C. § 1516a(e)(2), the injunction did not dissolve on
that date.14 Rather, the injunction dissolved upon the action’s
13
In Timken, the Federal Circuit specifically addressed
whether an appealed CIT decision is a "final court decision"
within the meaning of 19 U.S.C. § 1516a(e). See 893 F.2d at 339-
40. In so doing, the court declined to decide "whether a
decision of [the Federal Circuit] is ‘final’ within the meaning
of § 1516a(e) before the time for application for certiorari to
the Supreme Court expires[,]" since that issue was not before the
court. See id. at 340 n.5. The "final court decision" language
of § 1516a(e), however, refers to both CIT and Federal Circuit
decisions. Therefore, the necessary result of Timken is that,
for the purposes of § 1516a(e), a decision of the Federal Circuit
is not "final" until it is conclusive, i.e., until the time for
applying for certiorari to the Supreme Court expires.
14
We recognize that, in American Permac, Inc. v. United
States, 191 F.3d 1380, 1381 (Fed. Cir. 1999), the Federal Circuit
stated, "The ‘triggering event’ for the running of the 6-month
time period under [19 U.S.C. § 1504(d)(1994)] . . . is the
lifting of the suspension on liquidation, which here occurred
[when the CIT finally affirmed the final results of Commerce’s
administrative review] . . . ." This sentence, however, is mere
dicta. In that case, the court resolved the issue of whether the
1994 version of 19 U.S.C. § 1504(d) could be retroactively
applied to liquidations that had occurred prior to the
provision’s effective date on December 8, 1993. See id. The
Consol. Ct. No. 98-08-02748 Page 36
becoming conclusive on October 1, 1996.
Section 1516a(e) also sheds light on when Customs may be
charged with notice of the injunction’s dissolution for the
purposes of § 1504(d). "For purposes of liquidation, . . . court
decisions are not executed until the administering agency publishes
notice of such decisions in the Federal Register pursuant to 19
U.S.C. § 1516a(e)." Timken Co. v. United States, 13 CIT 454, 456,
715 F. Supp. 373, 375 (1989), aff’d, 893 F.2d 337. Applying §
1516a(e) to a Commerce determination, the Federal Circuit has held
that, "[i]f the CIT ([or the Federal Circuit]) renders a decision
which is not in harmony with Commerce’s determination, then
Commerce must publish notice of the decision within ten days of
issuance (i.e., entry of judgment), regardless of the time for
appeal or of whether an appeal is taken." Timken, 893 F.2d at 341.
The court reasoned that § 1516a(e) distinguishes between "final
court decision" and "court decision." See id. at 340 ("We are of
court held that it could not. See id. Read in context, the
court made the above quoted statement not as a holding, but
rather to demonstrate that the amended version of § 1504(d), if
applied in that case, would have had an impermissible retroactive
effect. See id. Under 19 U.S.C. § 1516a(e), a court-enjoined
liquidation remains suspended, not until the issuance of a court
decision resolving the matter, but until there is a court
decision that is conclusive, i.e., no longer subject to appeal.
See Hosiden, 85 F.3d at 591.
Consol. Ct. No. 98-08-02748 Page 37
the opinion that Congress intentionally used the word ‘final’ only
once in § 1516a(e) to convey one meaning, but omitted the word
elsewhere in that section . . . to convey another meaning.").
Thus, under § 1516a(e), while a liquidation must proceed in
accordance with the "final," i.e., conclusive, court decision in
the action, the administering agency must publish notice of the
adverse court decision within ten days of its issuance. See id. at
340-41.
The court’s holding in Timken, however, was limited to entries
that have not been enjoined under § 1516a(e)(1). See id. at 338
n.3. For these entries, "the effect of the publication is to
indicate that liquidation should no longer take place in accordance
with Commerce’s determination." Id. at 341.15 Section 1516a(e)
does not expressly address whether, where liquidation is enjoined
by court order, Commerce must publish notice that the court action
is final and conclusive, thereby terminating the suspension of
liquidation, in the Federal Register. Nevertheless, there are two
principles we can glean from § 1516a(e) that help to resolve the
question of when Customs had notice in our case.
15
Because, pursuant to § 1516a(e), liquidation shall be in
accordance with the final court decision in the action, however,
"it is [then] necessary to suspend liquidation until there is a
conclusive decision in the action." Timken, 893 F.2d at 341.
Consol. Ct. No. 98-08-02748 Page 38
First, under § 1516a(e), it is clear that issuance of a court
decision by itself does not constitute notice for the purposes of
liquidation. Rather, the administering agency must publish notice
of the court decision in the Federal Register. Here, Commerce is
the administering agency; Commerce issued the administrative review
determination that was litigated. Customs’ role in antidumping
matters is purely ministerial. See Mitsubishi Elec. Am., Inc. v.
United States, 44 F.3d 973, 977 (Fed. Cir. 1994). Therefore,
unless Customs receives direct notice from a court, we cannot
attribute notice to Customs of a court decision reviewing a
Commerce determination made under 19 U.S.C. § 1516a(a) without
publication of notice of the court decision by Commerce in the
Federal Register.16
Second, if, under § 1516a(e), Commerce’s publication in the
Federal Register of an adverse court decision constitutes notice to
16
We recognize that the Department of Justice ("DOJ")
typically represents both Commerce and Customs in their
respective matters before the court. Nevertheless, we decline to
attribute notice to Customs of the issuance of a court decision
reviewing a Commerce determination under 19 U.S.C. § 1516a simply
because the DOJ represents both agencies. As noted above, §
1516a(e) places the obligation to publish notice of the court
decision on the agency that authored the litigated determination.
See Timken, 13 CIT at 456, 715 F. Supp. at 375. Therefore, it
follows that notice under § 1516a(e) by virtue of issuance of a
court decision can only be attributed to the administering
agency.
Consol. Ct. No. 98-08-02748 Page 39
Customs that liquidation of entries that are not subject to court
injunction should no longer proceed in accordance with the
litigated Commerce determination, it logically follows that
Commerce’s publication in the Federal Register of a conclusive
court decision in the action may constitute notice to Customs that
a court-ordered suspension of liquidation is removed.
Here, this is precisely what happened. On September 16, 1997,
Commerce published notice of the Federal Circuit’s decision of July
3, 1996, and of the amended final results. See Television
Receivers, Monochrome and Color, From Japan, 62 Fed. Reg. 48,592
(Dep’t Commerce, Sept. 16, 1997)(notice of final court decision and
am. final results admin. review)("Federal Register Notice"). In
its Federal Register Notice, Commerce stated,
As there is now a final and conclusive court decision in
this action, we are amending our final results of review
in this matter and we will subsequently instruct the U.S.
Customs Service to liquidate entries subject to this
review.
. . . .
Pursuant to 19 U.S.C. § 1516a(e), we are now amending the
final results of administrative review for television
receivers, monochrome and color, from Japan, with respect
to [Fujitsu General Limited], for the above-referenced
periods. The revised weighted-average margin for these
periods is 26.17 percent.
Id.
Thus, applying the necessary implications of § 1516a(e),
Consol. Ct. No. 98-08-02748 Page 40
Commerce’s Federal Register Notice constituted sufficient notice to
Customs that the court-ordered injunction had dissolved, because
the notice indicated that the litigation suspending liquidation was
now conclusive. Under § 1504(d), Customs must liquidate within six
months of receiving notice that a court-ordered suspension is
removed. Here, Commerce published its Federal Register Notice on
September 16, 1997; therefore, Customs had notice that the court
injunction enjoining liquidation of the subject entries was
dissolved on that date. Customs liquidated entry 86-222766-5 on
February 27, 1997; therefore, as a matter of law, the entry was not
deemed liquidated under § 1504(d).
B. Commerce’s delay
While holding that Customs liquidated the subject entry within
the time limit prescribed by § 1504(d), the Court does sympathize
with Fujitsu’s complaint. The court-ordered injunction dissolved
on October 1, 1996. Yet, Commerce did not issue notice of the
suspension’s removal until nearly a year later. Essentially, then,
Fujitsu’s real claim is against Commerce for its delay in issuing
notice and liquidation instructions17 to Customs. See Pl.’s Opp’n
17
As discussed above, Commerce, not Customs, determines
antidumping rates; therefore, "Customs merely follows Commerce’s
instructions in assessing and collecting duties." Mitsubishi, 44
F.3d at 977. Because Customs does not calculate the antidumping
Consol. Ct. No. 98-08-02748 Page 41
to Def.’s Cross Mot. SJ II at 12 ("Commerce cannot thwart the plain
meaning of [19 U.S.C. § 1504(d)] and the intent of Congress by
delaying notice to Customs.").
Section 1504(d), however, clearly indicates that deemed
liquidation will occur only if liquidation does not occur within
six months of Customs’ receiving notice of the removal of a
suspension on liquidation. As explained in section II.A, Customs
liquidated the subject entry within six months of receiving notice
of the suspension’s removal. Therefore, Fujitsu cannot
successfully argue that its merchandise must be deemed liquidated
under § 1504(d) as a result of Commerce’s delay in issuing notice
of the suspension’s removal.
Indeed, in the circumstances of this case, such a remedy would
be overbroad. Presumably, Fujitsu stands to escape considerable
antidumping liability if its entries were deemed liquidated.
Addressing a similar situation in American Permac, 10 CIT at 546
n.14, 642 F. Supp. at 1197 n.14, this court stated: "The resulting
windfall to plaintiffs would penalize not only the [government], by
depriving it of revenues, but also plaintiffs’ domestic competitors
duty rates itself, Customs typically awaits Commerce’s
instructions before proceeding to collect final antidumping
duties. Cf. 19 U.S.C. § 1673e(a); 19 C.F.R. §§ 353.21 (a),
353.22(c)(10)(1997).
Consol. Ct. No. 98-08-02748 Page 42
(who played no part in [Commerce’s] delay), by depriving them of
the protection of the antidumping law." Moreover, as the court in
that case indicated, Fujitsu is not left without a remedy to
prevent Commerce delays in the issuance of notice and liquidation
instructions to Customs. Fujitsu could have brought a judicial
action to compel Commerce to issue notice and liquidation
instructions by virtue of this court’s jurisdiction under 28 U.S.C.
§ 1581(i)(4). Cf. id. at 540-41, 642 F. Supp. at 1192 (citing
Brock v. Pierce County, 476 U.S. 253, 260 n.7; Allen v. Regan, 9
CIT 176, 177-78, 607 F. Supp. 133, 134-35 (1985)); cf. also Timken,
893 F.2d at 342 (affirming the CIT’s granting of plaintiff’s
application for a writ of mandamus, ordering Commerce to publish
notice of a court decision within ten days of its issuance pursuant
to 19 U.S.C. § 1516a(e)).18
18
Although not applicable to the administrative reviews in
this case, 19 U.S.C. § 1675(a) was amended in 1994 to provide,
In a case in which [the final results of an
administrative review are] under review under section
1516a of this title and a liquidation of entries
covered by the determination is enjoined under section
1516a(c)(2) of this title . . . , [Commerce] shall,
within 10 days after the final disposition of the
review under section 1516a of this title, transmit to
the Federal Register for publication the final
disposition and issue instructions to the Customs
Service with respect to the liquidation of entries
pursuant to the review.
Consol. Ct. No. 98-08-02748 Page 43
Fujitsu did not avail itself of such a remedy, however, and,
given the undisputed facts here, the Court must hold that Fujitsu’s
entry was not deemed liquidated as a matter of law by Commerce’s
delay in issuing liquidation notice that the court injunction
enjoining liquidation had dissolved.
III. Did Customs properly assess interest on Fujitsu’s entries
under 19 U.S.C. § 1677g?
A. Background
Upon publication of an antidumping duty order, importers are
required to deposit with Customs estimated antidumping duties on
entries subject to the order pending ultimate liquidation. See 19
U.S.C. § 1673e(a)(3). Upon the completion of subsequent
administrative reviews, Commerce directs Customs to assess the
determined antidumping rate on entries subject to the review and to
continue to collect cash deposits of estimated antidumping duties
on future entries at the rate determined in the administrative
19 U.S.C. § 1675(a)(3)(C)(1994)(effective for Commerce
administrative reviews initiated after January 1, 1995). Thus,
the amendment to § 1675(a) directs that, where liquidation is
enjoined by court order pending the litigation of the final
results of an administrative review, Commerce must publish notice
of the final disposition and issue liquidation instructions to
Customs within ten days of the final disposition. American
Permac instructs that Fujitsu could invoke the CIT’s jurisdiction
under 28 U.S.C. § 1581(i) to enforce the statutory deadline. See
10 CIT at 540-41, 642 F. Supp. at 1192; see also Timken, 893 F.2d
at 342.
Consol. Ct. No. 98-08-02748 Page 44
review. See 19 U.S.C. § 1675(a); 19 C.F.R. § 353.22(c)(10).
Here, the subject entries were made from March 20, 1986,
through March 11, 1988. The entries were thus subject to the
deposit requirements of the administrative reviews whose final
results were published on June 10, 1985; March 20, 1987; and
February 11, 1988. See Television Receiving Sets, Monochrome and
Color, From Japan, 50 Fed. Reg. 24,278, 24,283 (Dep’t Commerce,
June 10, 1985)(final results admin. review)(finding a zero dumping
margin for General Corporation); Television Receivers, Monochrome
and Color, From Japan, 52 Fed. Reg. 8,940, 8,947 (Dep’t Commerce,
Mar. 20, 1987)(final results admin. review)(finding a de minimis
dumping margin for Fujitsu General Limited); Television Receivers,
Monochrome and Color, From Japan, 53 Fed. Reg. 4,050, 4,055 (Dep’t
Commerce, Feb. 11, 1988)(final results admin. review)(finding a
4.06% dumping margin for Fujitsu General Limited). Commerce did
not require cash deposits for entries made on or after June 10,
1985, and March 20, 1987, because the dumping margins calculated in
the administrative review results published on those dates were
zero and de minimis. Commerce did, however, require a 4.06% ad
valorem cash deposit on entries made on or after February 11, 1988,
pursuant to the final results published on that date. Thus,
Fujitsu was not required to make cash deposits of estimated
Consol. Ct. No. 98-08-02748 Page 45
antidumping duties for its entries until February 11, 1988.
Under 19 U.S.C. § 1677g (1994), interest is made on
antidumping duty payments. The provision states,
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 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. Commerce instructs Customs "to calculate
interest for each entry from the date that a cash deposit is
required to be deposited for the entry through the date of
liquidation of the entry." 19 C.F.R. § 353.24(c)(1997).
Here, upon liquidation, Customs assessed antidumping duties on
each subject entry at the final rate, 26.17%, with interest on the
total antidumping duty payment calculated from the date of entry to
the date of liquidation. Fujitsu, however, argues that, pursuant
to § 1677g, interest is only properly assessed on entries for which
cash deposits were required. See Pl.’s Mem. in Supp. Mot. SJ II at
14. Fujitsu asserts that, "[w]ith the exception of entry no. 110-
0639314-1, the merchandise imported under cover of the subject
entries was entered for consumption prior to February 11, 1988, and
thus, did not require a cash deposit of estimated antidumping
duties[;]" therefore, Fujitsu maintains, interest is not properly
Consol. Ct. No. 98-08-02748 Page 46
assessable on the entries made before February 11, 1988. See id.
at 16-17. Fujitsu bases its argument on the Federal Circuit’s
decision in Timken Co. v. United States, 37 F.3d 1470 (Fed. Cir.
1994).
Defendant counters that Customs properly assessed interest on
Fujitsu’s entries. See Def.’s Opp’n to Pl.’s Mot. SJ II at 23-30.
Defendant bases its argument on the Federal Circuit’s decision in
Sharp Elec. Corp. v. United States, 124 F.3d 1447 (Fed. Cir. 1997).
B. Jurisdiction
Jurisdiction of this issue is predicated on 28 U.S.C. §
1581(a)("The Court of International Trade shall have exclusive
jurisdiction of any civil action commenced to contest the denial of
a protest, in whole or in part, under [19 U.S.C. § 1515]."). As
reviewed earlier, for the Court to exercise jurisdiction under §
1581(a), Fujitsu’s interest claim must have been presented to
Customs in the form of a valid protest under 19 U.S.C. § 1514. See
Koike Aronson, Inc. v. United States, 165 F.3d 906, 908 (Fed. Cir.
1999). Fujitsu’s interest argument satisfies the § 1514
requirements if it was directed toward a protestable Customs
decision and filed within the time limits of § 1514(c).
As previously noted, in Mitsubishi, the Federal Circuit held
that, because of its ministerial role in antidumping matters,
Consol. Ct. No. 98-08-02748 Page 47
Customs did not make a protestable decision as to the antidumping
rate upon liquidation. See 44 F.3d at 977. Here, regarding the
interest to be assessed on the antidumping duty payment, Commerce’s
Liquidation Instructions merely directed that "[i]nterest shall be
calculated from the date payment of estimated antidumping duties is
required through the date of liquidation." These instructions
appear ambiguous as to whether or not interest is assessable on
entries for which no estimated duty deposits are required.
Therefore, Customs made a protestable decision in this case because
Customs unilaterally determined that, under 19 U.S.C. § 1677g,
interest was assessable on Fujitsu’s entries for which no cash
deposits were required. Customs’ decision was thus protestable
under § 1514(a)(3). See Castelazo, 126 F.3d at 1462 ("We have held
that a bill for interest is a ‘charge or exaction’ that falls under
the purview of § 1514(a)(3))(citing New Zealand Lamb, 40 F.3d at
382).
Moreover, Fujitsu’s protest of Customs’ assessment of interest
on its entries was timely. Under § 1514(c)(3)(B), a charge for
interest must be protested within ninety days of the date on which
Customs informed the payee of the interest charge. See New Zealand
Lamb, 40 F.3d at 382. A Customs’ liquidation that does not mention
interest would not constitute a "decision[] regarding interest for
Consol. Ct. No. 98-08-02748 Page 48
purposes of starting the running of the § 1514 limitations period
against [Fujitsu]." Id.
Here, Fujitsu challenged Customs’ assessment of interest on
(1) February 11, 1998 (Protest No. 2704-98-100059 and Protest No.
3001-98-100026) against the liquidations dated November 14, 1997,
November 28, 1997, and December 5, 1997,; and (2) March 24, 1998
(Protest No. 5301-98-100053) against the liquidation dated February
27, 1998. Because Fujitsu protested Customs’ assessment of
interest within ninety days of the liquidations, there is no doubt-
-and no party disputes--that Fujitsu filed its protest within
ninety days of Customs’ assessment of interest. Therefore,
Fujitsu’s protest challenging Customs’ assessment of interest was
timely filed under § 1514(c)(3).
Because Fujitsu’s interest argument was raised before Customs
in a valid protest under § 1514, this Court has jurisdiction to
review the issue under 28 U.S.C. § 1581(a).
C. Analysis
The issue is whether, under 19 U.S.C. § 1677g, interest may be
assessed on underpayments of antidumping duties where no cash
deposits were required for the subject entries. Fujitsu interprets
the Federal Circuit’s decision in Timken, 37 F.3d 1470, to stand
for the proposition that "application of the antidumping interest
Consol. Ct. No. 98-08-02748 Page 49
provision, 19 U.S.C. § 1677g, is triggered by the posting of cash
deposits of estimated antidumping duties." Pl.’s Mem. in Supp.
Mot. SJ II at 17. Therefore, Fujitsu maintains, where, as here,
Commerce did not require cash deposits of estimated dumping duties
(with the exception of entry 110-0639314-1), no interest is owing.
See id.
It is true that in Timken the court stated, "In order to be
liable for or entitled to interest under section 1677g(a),
[importers] must have made cash deposits of estimated duties."
Timken, 37 F.3d at 1477. But as the Federal Circuit subsequently
pointed out in Sharp, despite that sentence, the Timken decision
did not stand for the proposition that interest is assessable only
where cash deposits of estimated duties are actually paid, but
rather was limited to addressing "the distinction between cases in
which a bond is posted and cases in which a cash deposit is
required." 124 F.3d at 1449-50.
In Timken, the court held that the "amounts deposited" term of
§ 1677g(a) "refers solely to cash deposits of estimated duties
provided under sections 1671e(a)(3)[(countervailing duty order)]
and 1673e(a)(3) [(antidumping duty order)]." 37 F.3d at 1476.
Because, in that case, the importers had posted bonds, rather than
cash deposits of estimated antidumping duties, the court held that
Consol. Ct. No. 98-08-02748 Page 50
the interest provision did not apply. See id. at 1477.
In Sharp, the Federal Circuit addressed whether Customs
properly assessed interest under § 1677g(a) on the importer’s 100%
underpayment of antidumping duties where Commerce had waived the
importer’s cash deposit requirement under § 1673e(a)(3). See 124
F.3d at 1449. In that case, Commerce had waived the deposit
requirement because the relevant dumping margin was de minimis.
See id. at 1448. As here, the importer argued "that the interest
provision only applies, by its express terms, to ‘amounts
deposited[.]’" Because the importer had not made a deposit, it
argued that no interest was owing. See id. at 1449. In response,
the court stated,
We disagree. To be sure, section 1677g speaks in terms
of "amounts deposited," but it also speaks to
"underpayments." Here, the underpayment was 100% of the
final assessed duty. Therefore, interest is due on the
entire assessment, unless the provision only applies when
"amounts" are actually "deposited." We hold the
provision applies whenever such amounts are statutorily
owed, whether or not actually deposited, because any
other result would be absurd.
Id.
Cash deposits of estimated antidumping duties are statutorily
owed upon the issuance of the antidumping duty order. See 19
U.S.C. § 1673e(a)(3). "Under section 1673e(a)(3), a cash deposit
acts as a method of payment of preliminary duties" subject to the
Consol. Ct. No. 98-08-02748 Page 51
antidumping duty order prior to liquidation. Timken, 37 F.3d at
1477 (emphasis added). Bonds, conversely, act "as security for
undetermined future payments" during the pre-antidumping duty
order, investigative phase. Id. (emphasis added); 19 U.S.C. §
1673b(d)(1)(B). Pursuant to § 1677g(a), interest is assessable on
payments of antidumping duties, but not on instruments serving as
security for payments, such as a bond. Therefore, the "amounts
deposited" language of § 1677g(a) simply indicates that the
existence of an antidumping duty order (or a countervailing duty
order, as the case may be) triggers the application of the interest
provision.
Simply because the dumping margin calculated in a subsequent
administrative review is found to be zero or de minimis, however,
does not mean that the importer is no longer statutorily obligated
to make a cash deposit on future entries; instead, it means either
that the importer is obligated to make a cash deposit of zero, or
that the estimated duty is so low that Commerce waives the deposit
requirement for the sake of administrative convenience. The
importer’s entries are still subject to the antidumping duty order,
and thus, the statutory obligation to make cash deposits of
estimated antidumping duties is still in place. See Sharp, 123
F.3d at 1449 (stating that there is "no relevant distinction
Consol. Ct. No. 98-08-02748 Page 52
between a zero cash deposit and the waiver of a cash deposit for a
de minimis margin.")(citing American Hi-Fi Int’l, Inc. v. United
States, 20 CIT 910, 936 F. Supp. 1032 (1996)). Therefore, even
where the estimated antidumping margin is zero or de minimis,
interest would be due on the underpayment of antidumping duties
under § 1677g(a). See id.
"To read section 1677g so literally as to impose liability for
interest payments only when cash deposits are actually made would
produce absurd results." Id. at 1450. For instance, a first
importer who actually made an initial statutorily required deposit,
no matter how small, would be required to pay interest on
additional duties later found owing. But a second importer whose
estimated dumping margin was zero, and therefore, was not actually
required to make a cash deposit, would be able to avoid paying any
interest on duties later found owing. This result would occur even
if the total interest required to be paid by the first importer was
substantially less than any interest obligation imposed on the
second importer. The result would be inequitable as between them.
See id. Where a final assessed antidumping duty rate is greater
than the rate at which an importer made deposits upon entry, the
true intent of 19 U.S.C. § 1677g is to require the assessment of
interest on the underpayment of antidumping duties, whether the
Consol. Ct. No. 98-08-02748 Page 53
underpayment is 100% or some lesser percentage of the final
assessed rate.
Thus, although we acknowledge that the plain language of §
1677g(a) states that interest is only assessed on underpayments of
"amounts deposited," we must avoid this interpretation because it
would clearly lead to absurd results. See United States v. Brown,
333 U.S. 18, 26-27 (1948); see also Sharp, 124 F.3d at 1450 (J.
Plager, concurring)("[T]his is one of those rare cases in which the
purpose of Congress is so manifestly clear and the opposite result
so silly, that to rule otherwise and require Congress to say it
again with a few additional words would be even sillier.").
Here, Fujitsu’s entries were subject to an antidumping duty
finding under the Antidumping Act, 1921. See Television Receiving
Sets, Monochrome and Color, From Japan, 36 Fed. Reg. 4,597 (Dep’t
Treas., Mar. 10, 1971)(antidumping finding). Therefore, as a
matter of law, Customs properly assessed interest on the difference
between the amounts deposited by Fujitsu upon entry of its
merchandise (zero) and the final antidumping duty rate assessed
(26.17% ad valorem) pursuant to 19 U.S.C. § 1677g(a).
IV. Did Customs properly assess interest at a compound, rather
than a simple, rate?
Section 1677g(b) provides that the rate of interest to be
Consol. Ct. No. 98-08-02748 Page 54
charged on overpayments and underpayments of antidumping duties
under § 1677g(a) is the rate of interest established under 26
U.S.C. § 6621. In turn, the rate of interest under 26 U.S.C. §
6621 is compounded daily in accordance with § 6622(a)("In computing
the amount of any interest required to be paid under this title .
. . such interest and such amount shall be compounded daily.").
See also Canadian Fur Trappers Corp. v. United States, 884 F.2d
563, 568 (Fed. Cir. 1989)("The [Trade and Tariff Act of 1984]
amended section 1677g to provide that interest due under it must be
compounded in accordance with 26 U.S.C. § 6621 . . . .").
Nevertheless, Fujitsu claims that Customs’ assessment of compound
interest was "impermissible" as to the subject entries.19 See Pl.’s
Mem. in Supp. of Mot. SJ II at 19.
In making this argument, Fujitsu does not dispute that the
plain language of 19 U.S.C. § 1677g(b) requires that interest
19
Fujitsu protested Customs’ decision to assess interest at
a compound rate on the subject entries within its initial
protests challenging the decision to assess interest at all. See
Protest No. 2704-98-100059 (Pl.’s Mem. in Supp. of Mot. SJ I, Ex.
1); Protest No. 3001-98-100026 (Pl.’s Mem. in Supp. of Mot. SJ
II, Ex. 4); Protest No. 5301-98-100053 (Pl.’s Mem. in Supp. of
Mot. SJ II, Ex.1). As discussed above, supra Part III.B,
Fujitsu’s initial protests met the requirements of 19 U.S.C. §
1514; therefore, Fujitsu’s compound interest claim also meets the
requirements of § 1514. The Court has jurisdiction of this issue
under 28 U.S.C. § 1581(a).
Consol. Ct. No. 98-08-02748 Page 55
assessed on antidumping duty payments must be compounded by virtue
of 26 U.S.C. §§ 6621, 6622, nor does Fujitsu argue that § 1677g(b)
is unconstitutional. Instead, Fujitsu first argues that the
assessment of compound interest is inconsistent with the remedial
nature of antidumping duties. See Pl.’s Mem. in Supp. of Mot. SJ
II at 20. In this sense, Fujitsu argues that the application of
compound interest is contrary to the intent of antidumping law.
See id. at 21.
Congress, however, determines the intent of antidumping law,
and, under the Trade and Tariff Act of 1984, Congress specifically
amended § 1677g to provide that interest on antidumping duty
payments must be compounded in accordance with 26 U.S.C. § 6621.
See Canadian Fur, 884 F.2d at 568. Thus, there is simply no
sustainable basis for Fujitsu’s assertion that the assessment of
compound interest is contrary to the remedial intent of antidumping
law.
Second, Fujitsu argues that the application of compound
interest violates the government’s obligation under the Agreement
on Implementation of Article VI of the General Agreement on Tariffs
and Trade (1994)("WTO Antidumping Agreement"). See Pl.’s Mem. in
Supp. of Mot. SJ II at 22. As a signatory to the Uruguay Round
Agreements, the United States has obligations under these
Consol. Ct. No. 98-08-02748 Page 56
agreements. See Federal Mogul Corp. v. United States, 63 F.3d
1572, 1581 (1995); see also Statement of Administrative Action,
H.R. Doc. No. 316, 103rd Cong., 2nd Sess. (1994), reprinted in
Uruguay Round Agreements Act, Legislative History, Vol. VI, at 669.
Even assuming the instruction of 19 U.S.C. § 1677g(b) were somehow
inconsistent with the WTO Antidumping Agreement, however, an
unambiguous statute will prevail over an obligation under the
international agreement. See Federal Mogul, 63 F.3d at 1581; see
also 19 U.S.C. § 3512(a)(1)("No provision of any of the Uruguay
Round Agreements, nor the application of any such provision to any
person or circumstance, that is inconsistent with any law of the
United States shall have effect."). As 19 U.S.C. § 1677g(b)
unambiguously provides that interest on antidumping duty payments
must be compounded in accordance with 26 U.S.C. § 6621, even if we
were so inclined, this Court cannot alter or repeal the clear
instruction of the statute. Therefore, Fujitsu’s motion for
summary judgment of this issue is denied.
Consol. Ct. No. 98-08-02748 Page 57
Conclusion
For the foregoing reasons, the Court denies Fujitsu’s motion
for summary judgment; Defendant’s motion for summary judgment is
granted. Judgment will be entered accordingly.
Donald C. Pogue
Judge
Dated: August 15, 2000
New York, New York
Fujitsu General America, Inc. v. United States
Court: United States Court of International Trade
Date filed: 2000-08-15
Citations: 110 F. Supp. 2d 1061, 24 Ct. Int'l Trade 733
Copy CitationsCombined Opinion