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shipments of the subject merchandise entered,or withdrawn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