HQ 225597: Protest and Application for further Review No. 3004-92-100175; carbon steel plate from Japan; interest on antidumpingduties; Timken Co. v. U.S.; HQ 224710

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                            HQ 225597

                        September 25, 1995




LIQ-4-01-R:C:E   225597 CC 

CATEGORY: Liquidation

District Director
U.S. Customs Service
9901 Pacific Highway
Blaine, WA 98230

RE:  Protest and Application for further Review No. 3004-92-100175; carbon steel plate from Japan; interest on antidumping
duties; Timken Co. v. U.S.; HQ 224710

Dear Sir or Madam:

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

FACTS:

     According to the file, the entry of the merchandise the
subject of this protest was made on July 21, 1980.  The
merchandise entered was certain carbon steel plate from Japan.

     On May 30, 1978 the Treasury Department published a finding
of dumping on carbon steel plate from Japan.  T.D. 78-150 (43 FR
22937).  On January 2, 1980, the authority for administering the
antidumping duty law was transferred from the Department of the
Treasury to the Department of Commerce by the Trade Agreements
Act of 1979.  Notice of preliminary results of administrative
review of carbon steel plate from Japan for the manufacturer
under consideration (case A-588-067) were published in the
Federal Register on May 7, 1981 (46 FR 25498).  Notice of final
results of administrative review of carbon steel plate from Japan
for the manufacturer under consideration were published in the
Federal Register on September 30, 1981 (46 FR 47804).  The time
period under consideration was for entries made from July 1, 1977
through March 31, 1980.  The review disclosed that for this time
period for the subject manufacturer, a 0 percent margin existed. 
In addition, a cash deposit for entries of carbon steel plate
made on or after September 30, 1981 was required.

     Prior to October 1, 1984, annual administrative reviews of
antidumping orders were required by section 751 of the Tariff Act
of 1930.  Consequently, the Department of Commerce initiated an
administrative review of its dumping findings for the subject
manufacturer during the period of April 1980 through September
1981.  Section 611(a)(2)(A) of the Trade and Tariff Act of 1984
amended section 751 to provide for reviews on request rather than
automatically on an annual basis.  50 FR 32556 (1985).  On
October 18, 1985 the subject manufacturer requested that the
Department of Commerce complete the administrative review of its
sales of carbon steel plate during the period of April 1980
through September 1981.  On April 17, 1986 the Department of
Commerce published a notice revoking the antidumping finding on
carbon steel plate from Japan for entries on or after October 1,
1984.  51 FR 13039.  That notice did not cover unliquidated
entries of steel plate from Japan which were exported prior to
October 1, 1984.  Furthermore, the notice stated that the
Department of Commerce would address any entries not covered in a
prior administrative review and exported prior to October 1,
1984, in a separate review, if one were requested.
  
     On August 15, 1986, the subject manufacturer withdrew its
request for the completion of an administrative review during the
period of April 1980 through September 1981.

     In January 1988, the Department of Commerce issued E-mail
instruction through Customs Headquarters to field offices
regarding case A-588-067.  Those instructions listed various
manufacturers and exporters for whom the Department of Commerce
had not received a request for an administrative review of the
antidumping duty order.  The Department of Commerce instructed
Customs to assess antidumping duties on merchandise entered, or
withdrawn from warehouse for consumption, during certain periods
at certain rates.  The subject manufacturer was not listed.  

     On August 19, 1992 the Department of Commerce issued further
E-mail instructions through Customs Headquarters to field offices
regarding case A-588-067.  In part it was stated that
"[e]ffective as of the date of issuance of this email message[,]
you should no longer suspend liquidation of entries covered by
this email[;] you should proceed with liquidation accordingly." 
These instructions required entries of carbon steel plate
manufactured or exported by the subject manufacturer, and entered
on withdrawn from warehouse for consumption from April 1, 1980 to
September 30, 1981 to be assessed antidumping duties at a rate of
6.70 percent.
  
     The subject entry was liquidated on September 11, 1992.
The protestant states that it paid antidumping duties in the
amount of $2,183.04 and interest in the amount of $8,099.69
within 45 days of the liquidation date.  The protest was filed on
November 4, 1992.  The protestant claims that at the time of
entry no cash deposit of antidumping duties was required;
therefore, the interest paid should be refunded.  In addition,
the protestant argues that it should be paid interest on the
amount to be refunded.      

     On January 28, 1993, Customs issued an E-mail message
correcting liquidation instructions for carbon steel plate from
Japan, stating that no interest was to be assessed on entries
that were not subject to cash deposits (i.e., entered under
bond).

ISSUE:

     Whether an assessment of interest on antidumping duties is
proper for the subject entry?

     If the amount of interest the protestant paid is to be
refunded, is the protestant due interest on that amount? 

LAW AND ANALYSIS:

     Initially, we note that the protest was timely filed
pursuant to 19 U.S.C. 1514(c).

     The protest concerns the assessment of interest on the
antidumping duties from the date of entry until the date of
liquidation.  The assessment of interest on antidumping duties is
provided for in 19 U.S.C. 1677g.  

     Under the antidumping duty law, The Department of Commerce,
not Customs, has the authority to calculate and determine
antidumping duty rates.  See Mitsubishi Electronics America, Inc.
v. United States, 44 F.3d 973 (Fed Cir. 1994).  This authority
includes the Department of Commerce's determining whether
interest is due pursuant to 19 U.S.C. 1677g.  See Timken Co., v.
U.S., 15 CIT 526, 777 F. Supp. 20 (1991).

     Customs has the authority to grant or deny protestable
decisions.  According to 19 U.S.C. 1514(a), these include,
"decisions of the Customs Service, including the legality of all
orders and findings entering into the same, as to ...(5) the
liquidation or reliquidation of an entry, or reconciliation as to
the issues contained therein, or any modification thereof." 
Concerning the role of Customs in liquidating antidumping duties
the court stated in Mitsubishi Electronics, supra, at page 977:
     
     Further, Customs has a merely ministerial role in
     liquidating antidumping duties under 19 U.S.C. 
      1514(a)(5). Customs cannot "modify ... [Commerce's]
     determinations, their underlying facts, or their
     enforcement."  Royal Business Machs., Inc. v. United
     States, 507 F.Supp. 1007, 1014 n.18 (Ct. Int'l Trade
     1980), aff'd, 669 F.2d 692 (CCPA 1982). 
     
     Liquidation instructions for the subject entry were issued
by the Department of Commerce on August 19, 1992.  In that
message, there are no instructions for Customs to assess interest
that would apply to the subject manufacturer for the subject
period.  Further liquidation instructions were issued on January
28, 1993.  In those instructions it is stated, "[n]o interest is
assessed on entries that were not subject to cash deposits (i.e.,
entered under bonds).  Interest shall be calculated from the date
of payment of estimated antidumping duties through the date of
liquidation."  

     For the subject entry, there was a pre-1980 antidumping
finding for which no estimated dumping margins were calculated. 
In addition, there was no cash deposit required at the time of
entry, and thereafter there was no administrative review which
applied.  On August 19, 1992 liquidation instructions were
issued, assessing antidumping duties for the subject manufacturer
for the subject period.

     Consequently, a review of the liquidation instructions shows
that Commerce did not instruct Customs to assess interest on
antidumping duties due on the subject entry at liquidation.  The
liquidation of the subject entry with the assessment of interest
was contrary to Commerce's instructions, and, therefore, was a
protestable matter pursuant to 19 U.S.C. 1514.  

     Commerce's decision not to assess interest in this case is
consistent with Timken, supra.  In Timken, the court upheld the
Department of Commerce's decision not to assess interest on
antidumping duties.  The factual situation in Timken was that
there was a pre-1980 antidumping duty finding in which estimated
dumping margins were never calculated, and there was no
requirement for cash deposits at the time of entry, although some
importers may have posted bonds.  Final results of administrative
review establishing dumping margins were not issued until 1990,
some fourteen years after the original dumping finding was made. 
The court upheld Commerce's decision not to assess interest for
that factual situation, finding that interest is collectible only
on cash deposits and would accrue from the time the deposit is
required, and that interest is not due on security, such as a
bond.  Therefore, the court found that Commerce did not
misinterpret the relevant statutes concerning cash deposits and
assessment of interest (19 U.S.C. 1673e(a)(3) and 19 U.S.C.
1677g(a)).

     The factual situation here is similar to the one in Timken:
a pre-1980 antidumping finding in which estimated dumping margins
were never calculated, no cash deposit required at the time of
entry, no administrative review that would have required such a
deposit, and it appears, posting of a bond at the time of entry. 
Consequently, the Department of Commerce's decision not to
instruct Customs to impose interest on antidumping duties at
liquidation in this case is consistent with the Timken decision.  

     Based on the foregoing, we find that the assessment of
interest on antidumping duties in this instance was not in
conformity with the liquidation instructions issued by Commerce. 
Consequently, the protest concerning the issue of assessment of
interest should be allowed, and the amount the protestant paid in
interest should be refunded.
   
     We note that this decision is consistent with  HQ 224710 of
August 16, 1993, a protest relating to antidumping duties for
carbon steel plate from Japan (case A-588-067) for the same
manufacturer and the same time period as this protest.  Included
in HQ 224710 was the issue of the assessment of interest to
antidumping duties.  In HQ 224710 we allowed the protest on the
issue of the assessment of interest, finding that liquidation
with the assessment of interest was improper.

     In addition to the issue of the assessment of interest on
antidumping duties, the protestant has raised another issue.  The
protestant states that it paid antidumping duties in the amount
of $2,183.04 and interest in the amount of $8,099.69 within 45
days of the liquidation date, September 11, 1992.  The protestant
argues that it should receive, in addition to a refund of the
interest paid, interest on the $8,099.69, calculated from the
date Customs received that amount. 

     19 U.S.C. 1505(c) was amended by section 642, title VI -
Customs Modernization, Public Law 103-182, the North American
Free Trade Agreement Implementation Act (107 Stat. 2057), enacted
December 8, 1993.  In addition, section 642 repealed 19 U.S.C.
1520(d).  Title VI of Public Law 103-182 took effect on the date
of enactment of the Act (section 692 of the Act).  Since entry
the subject of this protest occurred prior to the date of 
enactment, the amended law does not apply in this instance.  See
HQ 225576 of November 15, 1994.

     19 U.S.C. 1520(d) provides in part, the following:

          If a determination is made to reliquidate an entry
     as a result of a protest filed under section 1514 of
     this title, ..., interest shall be allowed on any
     amount paid as increased or additional duties under
     section 1505(c) of this title at the annual rate
     established pursuant to that section and determined as
     of the 15th day after the date of liquidation or
     reliquidation....
     
     In order for the protestant to receive the relief granted,
there must have been paid increased or additional duties under 19
U.S.C. 1505(c).  The protestant is seeking payment of interest on
the $8.099.69 paid; in other words, the protestant is seeking
payment of interest on the interest paid.  Thus, this amount does
not represent increased or additional duties paid under section
505(c).  The relevant statutes cited above do not provide for the
payment of interest on the interest paid (in this case, the
$8,099.69 paid by the protestant).  See HQ 221692 of December 3,
1990.  Consequently, the protestant's request for payment of
interest on the $8,099.69 is denied.   

HOLDING:

     The protest is allowed and denied in part.  The protest is
ALLOWED concerning the issue of liquidation of the subject entry
with the assessment of interest on antidumping duties.  Therefore
the interest on the antidumping duties paid by the protestant
should be refunded.

     The protest is DENIED for the protestant's request for
payment of interest on the $8,099.69 to be refunded.  

     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 the decision
must be accomplished prior to mailing of the decision.  Sixty
days from the date of the 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 the public 
via the Diskette Subscription Service, Freedom of Information Act
and other public access channels.



                              Sincerely,




                              John Durant, Director
                              Commercial Rulings Division