LIQ-4-01-CO:R:C:E 225382 CB
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)
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.
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
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shipments of the subject merchandise entered,or withdrawn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.
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withdrawn from warehouse, for consumption on and after the date of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
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
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.
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.
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
John Durant, Director
Commercial Rulings Division