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HQ 225466

July 5, 1995

LIQ-1-CO:R:C:E 225466 AJS


District Director of Customs
U.S. Customs Service
Key Tower Bldg. #2200
1000 2nd Avenue
Seattle WA 98104-1049

RE: Internal Advice 16/94; refund of antidumping duties prior to liquidation due to clerical error; 19 U.S.C. 1520(a)(4); 19 CFR 173.4a; "clerical error"; NTN Bearing Corp. v. U.S.; Federal-Mogul Corp. v. U.S.; H. Rep. No. 98-105; 19 U.S.C. 1677(1); 19 U.S.C. 1673d(e); 19 CFR 353.28.

Dear Sir or Madame:

This is in reply to internal advice request 16/94, dated December 29, 1993, concerning American Koyo Corporation (AKC). (File APP-2-SE:C:D DJ).


Entry 131-xxxx827-8 dated November 30, 1992, involves a shipment of antifriction ball bearings from Japan covered by antidumping case number A588-201-005 and entered by AKC. On June 24, 1992, the Department of Commerce (DOC) published in the Federal Register the results of the second administrative review of this case detailing new deposit margins of 8.89% for entries of the subject bearings entered on or after the date of the notice. The entry in question was entered and antidumping duty deposit was made in accordance with this requirement.

On December 14, 1992, the DOC published revised antidumping margins for the case citing certain "ministerial or clerical errors" in their calculations. The DOC detailed their delay in correcting these errors as resulting from lack of permission from the Court of International Trade due to challenges to the review filed by various respondents in the case, including AKC. In issuing their revised margins, the DOC explained the reasons for each change. In the case of AKC, the DOC stated "[f]or Koyo, we
corrected the failure to apply the intended best information available for U.S. sales for which Koyo failed to provide cost of production data for matching home-market sales".

Entry 331-xxxx651-4 dated November 18, 1987, involves a shipment of tapered roller bearings over 4 inches in outside diameter and subject to antidumping case number A588-604-001. Antidumping duties at the rate of 70.44% were deposited on the shipment in accordance with the Federal Register notice of October 6, 1987, and CIE N-70/87, dated September 1, 1987. As was the case in the other entry, the DOC subsequently revised the deposit margins to correct errors in their calculations. In these instances, the "clerical errors" corrected by the amendment involved corrections to the DOC computer program to include such things as "adjustments for research and development and interest expenditures in calculating certain constructed values"; changes "to use the ESP offset as part of the calculation of constructed value of imported parts" and "to properly allocate profit between the imported components and value added".


Whether the subject deposited antidumping duties may be refunded pursuant to 19 U.S.C. 1520(a)(4).


19 U.S.C. 1520(a)(4) states that the Secretary of the Treasury is authorized to refund duties or other receipts prior to the liquidation of an entry, whenever it is ascertained that excess duties, fees, charges, or exactions have been deposited or paid by reason of clerical error. 19 CFR 173.4a provides that pursuant to section 520(a)(4), Tariff Act of 1930, as amended (19 U.S.C. 1520(a)(4)), the district director may prior to liquidation of an entry, take appropriate action to correct a clerical error that resulted in the deposit or payment of excess duties, fees, charges, or exactions.

A "clerical error" has been stated by the courts to be "a mistake made by a clerk or other subordinate, upon whom devolves no duty to exercise judgement, in writing or copying the figures or in exercising his intention." See PPG Industries, Inc. v. United States, 7 CIT 118, 124 (1984), and cases cited therein. In addition, Treasury Decision (T.D.) 54848 provides, "[c]lerical error occurs when a person intends to do one thing but does something else . . . It includes mistakes in arithmetic and the failure to associate all the papers in a record under consideration." In Ruth F. Sturm's, Customs Law & Administration (3rd ed.), it is stated that "[c]lerical error has been found where
mistakes were made in copying or typing figures or where figures have been transposed", and a number of Customs Court decisions are cited for this proposition (section 9.4, at pages 5 and 6). Your request states that the subject errors involve complex calculations which are made by highly trained and skilled technicians in the DOC. However, these errors are nevertheless mistakes in arithmetic which are clerical errors.

Section 1520(a)(4) permits the refund of excess "duties" deposited by reason of clerical error. The subject clerical errors apparently resulted in the deposit of excess monies. The courts have acknowledged that estimated antidumping duty deposits are refundable prior to liquidation when such duties have been deposited due to a clerical error. See NTN Bearing Corp. v. United States, 8 Fed. Cir. (T) 26, 29 (1989); Federal-Mogul Corp. v. United States, Slip Op. 92-177 at 8 (October 14, 1992). Therefore, the antidumping duties in question are "duties".

However, there are two considerations which must be explored. The statute itself does not disclose the official who must make the ascertainment that (1) the deposit was excessive, and (2) that it was caused by clerical error. The congressional reports on the language do not provide assistance. See H. Rep. No. 98-1015, 98th Cong. 71 (1984), reprinted in 1984 U.S. Code Congressional and Administrative News 4910, 5030. The testimony of the National Customs Brokers & Forwarders Association of America on the language that later was enacted indicates that the purpose was to provide pre-liquidation refunds where Customs made the determination that the equities required a refund. Hearings Before the Subcommittee on Trade on H.R. 5418, 98th Cong. 662 (1984). Thus, it would appear that 19 U.S.C. 1520(a)(4) is properly employed where the Secretary of the Treasury has authority to act.

On entries involving antidumping duties, the Secretary of the Treasury has limited authority. Under 19 U.S.C. 1677(1), the Secretary of Commerce is responsible for administration of antidumping laws.

We note that the antidumping laws expressly provide for the correction of ministerial errors in final determinations. Under 19 U.S.C. 1673d(e), the Secretary of Commerce is responsible for establishing procedures for the correction of ministerial errors in final determinations. That provision defines ministerial errors to include clerical errors. The provision expressly requires that any such procedure allow for interested parties to present their views regarding such errors. That authority clearly includes the correction of mathematical or clerical errors. The provision was added by the Omnibus Trade and Competitiveness Act of 1988 (Act of August 23, 1988, 102 Stat 1107, Pub.L. 100-418, Sec. 1333). The

Conference Report on Section 1333 indicates that the correction of such errors would be a Commerce function. Cong. Rec., House No. 22, pg H2041 (April 20, 1988). The DOC has promulgated regulations on those procedures in 19 CFR 353.28.

The Federal Register notice with respect to the correction of the errors was effective as to merchandise entered or withdrawn on or after the date of publication, December 14, 1992. These entries predate that notice.

No instructions have been received from the DOC with respect to these entries.

The legislative history of 19 U.S.C. 1520(a)(4) indicates that the authority is to be exercised when Customs is satisfied that a refund is warranted. In this situation, the only evidence that a requisite overdeposit by reason of clerical error occurred is a determination by the DOC pursuant to the antidumping laws. Under those laws, the Secretary of Commerce alone was authorized to establish procedures to correct clerical or ministerial errors. The notice indicates that the DOC did take corrective action, although perhaps not to the extent desired by AKC. Under the authority given to the Secretary of Commerce over the administration of the antidumping laws, it would be inappropriate to interpret 19 U.S.C. 1520(a)(4) in a manner to expand on the corrective action taken by the DOC without specific instructions from that Department.


With respect to the administration of the antidumping laws, it is inappropriate to act under 19 U.S.C. 1520(a)(4) without specific instructions from the Department of Commerce.

This decision should be mailed by your office to the internal advice requestor no later than 60 days from the date of this letter. On that date 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.


John Durant, Director
Commercial Rulings Division

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