Fujitsu General America, Inc. v. United States

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