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HQ 225382
July 3, 1995
LIQ-4-01-CO:R:C:E 225382 CB
CATEGORY: Liquidation
District Director U.S. Customs Service 6601 N.W. 24th Street Miami, FL 33159
RE: Protest and Application for Further Review No. 5201-92- 101235; 19 U.S.C. 1504(a); 19 U.S.C. 1504(b)(1)and (2); and 19 U.S.C. 1677g(a)
Dear Madame:

The above-referenced protest and application for further review was forwarded to this office for further review. We have considered the points raised and our decision follows.

FACTS:

This protest involves various entries filed between September 23, 1983, and July 18, 1985. The merchandise is fish netting from Japan which was the subject of an affirmative dumping finding (T.D.

72-158) published by the Department of the Treasury. Estimated duties were not deposited at the time of entry. The subject entries were liquidated in October of 1992.

On September 30, 1991, Commerce published the final results of an administrative review pertaining to fish nets and netting from Japan exported by Toyoma Fishing Net Mfg. Co., Ltd. (the exporter at issue) for the time period June 1, 1983 to May 31, 1987 (56 FR 49456). Therein, Customs was instructed to assess antidumping duties against all subject entries of said merchandise at the rate of 7.17 percent ad valorem. Liquidation instructions were issued on January 8, 1992. The subject entries were liquidated in October of 1992.

Protestant contends that, based on the language of 19 U.S.C.

1677g(a), there can be no collection of interest on antidumping duties when such duties were not deposited at the time of entry.

On June 21, 1972, the Department of the Treasury, U.S. Customs Service, published the results of the antidumping investigation on fish netting from Japan(37 FR 1560). In 1980, the responsibility for enforcement of U.S. unfair trade laws was transferred to the Department of Commerce.

Commerce began an administrative review of all unliquidated entries of fish netting from Japan at this time. On September 22, 1983, Commerce published the results of its review(48 FR 4320). Cash deposits were required on all shipments of the subject merchandise entered,or withdrawn from warehouse, for consumption on or after the date of publication of that notice. All of the entries in question occurred after that date. Therefore, cash deposits were required for these entries.

ISSUE:

Whether interest is owed on the antidumping duties imposed.

LAW AND ANALYSIS:

Section 778 of the Tariff Act, as amended (19 U.S.C.

1677g(a)), provides that interest shall be payable on underpayments of amounts deposited on merchandise entered, or withdrawn from warehouse, for consumption on and after the date of an antidumping order.

Protestant contends that since a bond was posted at the time of entry, interest should not be assessed against the payment of antidumping duties. The fact that the Customs Service erroneously accepted a bond in lieu of a cash deposit for this merchandise does not relieve the importer from his statutory obligation to pay the existing cash deposit requirement as published in the Federal Register. 19 U.S.C. 1673e; see generally Office of Personnel Management v. Richmond, 110 S.Ct. 2465 (1990). Subsequent to the publication of a September 30, 1991 administrative review, cash deposits were required for imports of fish netting from Japan. The fact that the subject entries were not rejected on the basis that a bond rather than cash was provided does not negate the fact that a cash deposit was not made, required by law. The Customs Service cannot waive the statutory requirement of 19 U.S.C. 1673. See generally, Romar Trading Co., Inc. v. United States, 27 Cust. ct. 34, C.D. 1344 (1951); Swan Tricot Mills Corporation v.

United States, 63 Cust. ct. 530, C.D. 3948 (1969).

Under 19 U.S.C. 1677g(a), interest shall be payable on overpayments or underpayments of amounts deposited on merchandise entered, or withdrawn from warehouse, for consumption on and after the date of publication of an antidumping duty order or the date of a finding under the Antidumping Act of 1921. The words "amounts deposited" apply only when a cash deposit of estimated antidumping duties upon entry is required and not when Commerce permits other kinds of security such as a bond to be posted. See Timken Co.

v. United States, 777 F. Supp. 20, 15 CIT 526, 532 (1991). Interest is collectible only when a cash deposit was required, in accordance with 19 CFR 353.24(b), and there is an underpayment of duties (including nonpayment of antidumping duties) represented by the difference between the required cash deposit of estimated antidumping duties that was actually deposited and the final amount of assessed duties on the date of liquidation.

Congress charged Commerce with the responsibility of requiring interest on "overpayments and underpayments of amounts deposited on merchandise. . ." 19 U.S.C. 1677g(a).

Courts also have recognized Commerce's authority to interpret the application of section 1677g(a). Timken v. United States, 15 CIT 526 (1991). Once Commerce determines that interest applies, it instructs Customs to collect that interest upon liquidation.
Thus, under the present antidumping duty law, Commerce conducts an antidumping duty investigation and the international Trade Commission ("ITC") conducts a simultaneous injury investigation. If dumping is found (and the ITC finds that the dumped imports cause material injury or threat thereof to a domestic industry), Commerce calculates a specific dumping margin for each foreign manufacturer investigated, as well as a dumping margin to be applied to "all other" foreign manufacturers, and issues an antidumping duty order. Commerce directs the Customs Service to collect estimated antidumping duties, with interest if required, at the rates calculated during the preliminary and final determinations. See 19 U.S.C.

 1673b(d), 1673d(c) & 1673e.

Therefore, if an interested party desires a review of the antidumping duty order, it may request an administrative review of those entries pursuant to 19 U.S.C.  1675. If such a review is requested, then Commerce determines the actual amount, if any, by which the foreign market value of each entry exceeds the United States price and directs the Customs Service to assess actual antidumping duties on this amount, together with interest. 19 U.S.C. 1675(a).

If a party to the administrative review proceeding is dissatisfied with the results, it may seek judicial review of the final results pursuant to 28 U.S.C.  1581(c) and 19 U.S.C.  1516a(a)(2)(B)(ii).

In the event a particular importer believes that its merchandise is not within the scope of the antidumping order, it may request Commerce to clarify the scope of the order, either as part of an administrative review or as a separate proceeding. Commerce's scope decision is then subject to review in this Court pursuant to 28 U.S.C.

 1581(c) as provided in either 19 U.S.C.  1516a(a)(2) (B)(vi) or  1516a(a)(2)(B)(iii).

The role of the Customs Service in this entire process is simply to follow Commerce's instructions in collecting deposits of estimated duties and in assessing antidumping duties, together with interest, at the time of liquidation.

The Customs Service plays no part in calculating the amount of dumping which exists with respect to specific entries, or determining whether certain merchandise is within the scope of the order. It simply takes the dumping margin determined by Commerce and applies it to the entries as directed by Commerce's instructions. Accordingly, while both the Customs Service and Commerce play a part in the enforcement of the antidumping laws, their roles are separate and distinct. However, only decisions made by the Customs Service may be protested. See 19 U.S.C.

 1514(a).

In this case, protestant does not allege any error upon the part of the Customs Service that could form the basis of a proper protest. Instead, protestant challenges the determination of whether interest should be applied to its entries. Upon completion of the stand-alone scope proceeding or administrative review, protestant could have sought review pursuant to 19 U.S.C.  1516a(a)(2) (B)(iii) or (vi).

It is clear from the language of 19 U.S.C. 1514(a), as well as the decisions in ABC International Traders, Inc. v. U.S., CIT Slip. Op. 95-97 (May 23, 1995); Mitsubishi Electronics America inc. v. U.S., 44 F.3d. 973(Fed. Cir. 1994); Nichimen America v. U.S., 938 F. 2d. 1286(Fed. Cir. 1991); and Conoco, Inc. v. U.S., 18 F.3d. 1581(Fed. Cir. 1994) that the determination whether interest is payable on antidumping duty deposits may not be challenged by protest.

HOLDING:

The determination whether interest is payable on antidumping duty deposits when the Department of Commerce instructs the Customs Service to assess interest on the involved entries is not protestable.

Moreover, an importer who posts a bond rather than making the required cash deposit is liable for the assessment of interest on the antidumping duties. The fact that Customs mistakenly accepted a bond in lieu of a cash deposit does not relieve the importer of the statutory obligation to make a cash deposit.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be mailed by your office to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with this decision must be accomplished prior to the mailing of the decision. Sixty days from the date of this decision, the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and to the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.

Sincerely,
John Durant, Director Commercial Rulings Division

 
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