American Hi-Fi Intern., Inc. v. US

• Decision Date: 02 August 1996
• Docket Number: Slip Op. 96-121. Court No. 94-01-00016.
• Citation: 936 F. Supp. 1032
• Parties: AMERICAN HI-FI INTERNATIONAL, INC., Plaintiff, v. The UNITED STATES, Defendant.
• Court: U.S. Court of International Trade

936 F. Supp. 1032

AMERICAN HI-FI INTERNATIONAL, INC., Plaintiff, v. The UNITED STATES, Defendant.

Slip Op. 96-121. Court No. 94-01-00016.

United States Court of International Trade.

August 2, 1996.

Glad & Ferguson, San Francisco, CA (T. Randolph Ferguson and John M. Daley) for plaintiff.

Frank W. Hunger, Assistant Attorney General, David M. Cohen, Director, Commercial Litigation Branch, Civil Division, United States Department of Justice (Jeffrey M. Telep), David Ross, Office of the Chief Counsel for Import Administration, United States Department of Commerce, Chi S. Choy, Office of the Assistant Chief Counsel, United States Customs Service, of counsel, for defendant.

OPINION

RESTANI, Judge:

This matter is before the court on a motion for summary judgment by plaintiff American Hi-Fi International, Inc. ("American Hi-Fi") pursuant to USCIT Rule 56(a), contending that the United States Customs Service ("Customs") erroneously liquidated its entries with an assessment of interest on the underpayment of antidumping duties. The government cross-moves for summary judgment pursuant to USCIT Rule 56(b), asserting that (1) this court lacks jurisdiction to entertain this action, and (2) neither Customs nor the United States Department of Commerce ("Commerce") erred in assessing interest on plaintiff's underpayment of antidumping duties. In the alternative, defendant requests an order setting forth the facts that appear without substantial controversy pursuant to USCIT Rule 56(e).

BACKGROUND

In 1971, when the United States Department of the Treasury ("Treasury") was responsible for administration of antidumping law, Treasury conducted a less than fair value investigation of television receivers from Japan pursuant to the Antidumping Act of 1921 ("the 1921 Act"). Treasury published its affirmative dumping finding on March 10, 1971, concluding that television receivers from Japan were being, or were likely to be, sold at less than fair value. Television Receiving Sets, Monochrome and Color, From Japan, 36 Fed.Reg. 4597 (Dep't Treas.1971) ("1971 Dumping Finding"). The U.S. Tariff Commission determined that an industry in the United States was being injured by reason of the importation of television receivers from Japan sold at less than fair value. Television Receiving Sets From Japan Causing Injury, 36 Fed.Reg. 4576 (U.S. Tariff Comm'n 1971).

The 1921 Act contained no provision for the calculation or payment of estimated antidumping duties or for the imposition of interest. It contained only a provision requiring an exporter to post a bond with sureties approved by the appropriate Customs district director in an amount equal to the estimated value of the merchandise, under regulations prescribed by Treasury. Antidumping Act of 1921, Pub.L. No. 10, § 208, 42 Stat. 9, 14 (1921).

Congress then enacted the Trade Agreements Act of 1979 ("the 1979 Act"), which repealed the 1921 Act and established new administrative procedures for the administration of antidumping law. Trade Agreements Act of 1979, Pub.L. No. 96-36, 93 Stat. 144 (1979) (codified as amended in scattered sections of 19 U.S.C.). In 1980, Commerce replaced Treasury as the administering authority of the antidumping law. The 1979 Act provided for the payment of estimated antidumping duties upon entry of merchandise subject to dumping orders and findings and for the payment of interest upon underpayments and overpayments of amounts deposited on merchandise entered. See 19 U.S.C. §§ 1673e(a)(3), 1677g(a) (1988). On January 4, 1980, Treasury announced Commerce's decision that, "prior to completion of the first administrative review under 19 U.S.C. § 1675, merchandise subject to a finding of dumping in effect on January 1, 1980, may continue to be entered under bond or other security." Antidumping; Treatment of Merchandise Subject to a Finding of Dumping in Effect on January 1, 1980, 45 Fed. Reg. 1084 (Dep't Treas.1980). Accordingly, importers subject to Treasury's dumping findings were not required to deposit cash for estimated antidumping duties prior to the completion of the first administrative review.

In 1981, Commerce concluded its first administrative review of the 1971 Dumping Finding pursuant to 19 U.S.C. § 1675(a). Television Receiving Sets, Monochrome and Color, From Japan, 46 Fed.Reg. 30,163 (Dep't Comm.1981) (final results). The final results of this review established, for the first time, the cash deposit rates for estimated antidumping duties for specific manufacturers. Id. at 30,166. For televisions manufactured by Toshiba (those imported by plaintiff), there were no deposits required because no dumping margin was found for Toshiba. Id.

On June 10, 1985, Commerce published the final results of the second administrative review of the 1971 Dumping Finding. Television Receiving Sets, Monochrome and Color, From Japan, 50 Fed.Reg. 24,278 (Dep't Comm.1985) (final results). Again, the cash deposits were not required for televisions manufactured by Toshiba. Id. at 24,283. In its final results, Commerce stated:

As provided for in 19 C.F.R. § 353.48(b) , a cash deposit of estimated antidumping duties based on the above margins shall be required for these firms Toshiba — zero. Since the weighted average margins for Hitachi, Nissei Sanyo, and Victor are less than 0.50 percent and, therefore, de minimis for cash deposit purposes, the Department shall waive the deposit requirements for shipments of television receiving sets from those firms.... These deposit requirements and waivers are effective for all shipments entered, or withdrawn from warehouse, for consumption on or after the date of publication of this notice, and shall remain in effect until publication of the final results of the next administrative review.

Id.

On August 16 and 18, 1986, plaintiff made two entries of television receivers manufactured by Toshiba in Japan (Consumption Entry Nos. 397-86-963482-4 and 397-86-963485-3). On receipt of plaintiff's entry papers, Customs specifically rejected Entry No. 86-963482-4 for failure to state that the entry was subject to case number A588-015-013, that is, the 1971 Dumping Finding. Customs requested an extra copy of the invoice for antidumping purposes and additional information from plaintiff about its televisions so that Customs could determine whether they were subject to antidumping duties.

On April 28, 1989, Commerce published a notice of initiation of antidumping administrative review of television receivers from Japan manufactured by Toshiba imported between March 1, 1986 and February 28, 1987. Initiation of Antidumping and Countervailing Duty Administrative Reviews, 54 Fed. Reg. 18,320, 18,322 (Dep't Comm.1989). Commerce conducted its administrative review and published its final results on February 11, 1991. Television Receivers, Monochrome and Color, from Japan, 56 Fed.Reg. 5392 (Dep't Comm.1991) (final results). Commerce stated that, "as a result of the comments received and the correction of certain clerical errors, we have revised our preliminary results for Fujitsu General, Hitachi, Matsushita, Mitsubishi, NEC, Sanyo, Toshiba, and Victor." Id. at 5401. Commerce determined that televisions manufactured by Toshiba and imported between March 1, 1986 and February 28, 1987 were subject to antidumping duties in the amount of 35.40% ad valorem. Id.

Subsequently, Commerce sent liquidation instructions to Customs, which were then forwarded on July 26, 1991 to all Customs district directors, import specialists, Customs brokers, and interested parties. According to these instructions, Commerce directed Customs to liquidate entries of televisions subject to the dumping ordered entered between March 1, 1986 and February 28, 1987 and as follows:

The assessment of antidumping duties by the Customs Service is subject to the provisions of 19 U.S.C. § 1677g, which requires interest on overpayments or underpayments of the amount deposited as estimated antidumping duties. The rate at which such interest is payable is the rate in effect under section 6621 of the Internal Revenue Code of 1954 for such period. Interest shall be calculated from the date of payment of estimated duties through the date of liquidation.

Liquidation Instructions, App. to Def.'s Cross-Mot. for Summ.J., Ex. 8, at 3, 7 (emphasis added). On October 11, 1991, Customs liquidated plaintiff's entries with the assessment of antidumping duties and interest. On January 6, 1992, plaintiff filed administrative protests with Customs contesting the imposition of antidumping duties and interest. Customs denied the protest.

On July 6, 1994, plaintiff filed an action challenging (1) the assessment of antidumping duties on plaintiff's entries, and (2) the assessment of interest on July 6, 1994. Plaintiff alleged jurisdiction pursuant to 28 U.S.C. § 1581(a) and alternatively, 28 U.S.C. § 1581(i). This court held that it had jurisdiction over this matter pursuant to 28 U.S.C. § 1581(a) and granted defendant's motion to dismiss as to Count 1, but denied it as to Count 2. American Hi-Fi Int'l, Inc. v. United States, Slip Op. 95-182, at 12, 1995 WL 684074 (Ct.Int'l Trade Nov. 16, 1995).

DISCUSSION

Defendant contends that the court lacks jurisdiction over this matter pursuant to 28 U.S.C. § 1581(a)¹ as Commerce, not Customs, made the contested decision to assess interest on plaintiff's underpayment of antidumping duties. Defendant argues that had plaintiff properly raised the issue to Commerce during its 1991 administrative review, jurisdiction would lie under 28 U.S.C. § 1581(c).² In a previous opinion denying defendant's motion to dismiss, the court discussed the respective roles of Commerce and Customs in the assessment of antidumping duties and interest on the underpayment of those duties. See Slip Op. 95-182, at 4-6, 1995 WL 684074. The court noted that the question of whether jurisdiction under § 1581(a) was proper turned on which agency made the contested decision. Id. at 7, 1995 WL...