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HQ 226030

LIQ-1-R:C:E 226030 AJS


District Director of Customs
1 East Bay Street
Savannah, Georgia 31401-1289

RE: Internal Advice; 19 U.S.C. 1520(a)(4); Refund of antidumping duties prior to liquidation; HQ 225466.

Dear Sir:

This is in reply to your request for Internal Advice dated February 22, 1995, filed pursuant to 19 CFR 177.11(b)(2), under your file APP-2 SV:A:C:JCP, concerning the refund of anti- dumping duties prior to liquidation in instances in which a clerical error is involved.


In preparing a duty paid withdrawal for a warehouse entry, a filer included an antidumping duty deposit ten times the amount actually due. The deposit was paid at a rate of 63.3%, instead of at the correct rate of 6.3%. The filer later requested an administrative refund. Your request states that there is no dispute that an antidumping duty cash deposit was required nor that a clerical error occurred.

Subsequent information submitted to this office indicates that the entry date for the subject merchandise (i.e., antifriction bearings (AFBs)) is June 9, 1992, and the importer is the NSK Corporation. An e-mail message states that on July 11, 1991, the Department of Commerce (DOC) published the final results of its review of the antidumping duty order for AFBs. The rate for NSK, case number A-588-201-008, is specified as 6.33% for AFBs entered or withdrawn, for consumption on or after July 11, 1991. This rate remained in effect until June 24, 1992.


Whether the subject incorrect antidumping duty deposit may be refunded pursuant to 19 U.S.C. 1520(a)(4).


In HQ 225466 (July 5, 1995)(copy attached), Customs addressed a similar issue. In that case, the essential issue was whether Customs possessed the authority under section 1520(a)(4) to refund antidumping duties prior to liquidation. The DOC published initial antidumping duty deposit margins and the protestant deposited duties based on these margins. The DOC subsequently revised these margins due to certain ministerial or clerical errors committed in the calculation of the initial antidumping margins. Prior to liquidation, the protestant sought a refund pursuant to section 1520(a)(4) for the difference between the initial deposit margins and the revised margins. This office stated that on entries involving antidumping duties, the Secretary of the Treasury has limited authority. We further stated that under 19 U.S.C. 1677(1), the Secretary of Commerce is responsible for administration of antidumping laws. We concluded that under those laws, the Secretary of Commerce alone was authorized to establish procedures to correct clerical or ministerial errors under the antidumping laws. We also concluded the under the authority given to the Secretary of Commerce over administration of the antidumping laws, it would be inappropriate to interpret 19 U.S.C. 1520(a)(4) in a manner to expand on any corrective action taken by the DOC without specific instructions from that Department.

Your internal advice request, however, is factually distinguishable from HQ 225466. This request simply involves a clerical error in the deposit of antidumping duties committed by the entry filer. As was the case in HQ 225466, no clerical error was committed which involves the authority of the DOC to set dumping margins. A refund in this instance would simply fall within the authority of Customs to correctly collect the amount of cash deposit equal to the estimated weighted-average dumping margin as instructed by the DOC under such regulations as 19 CFR 353.15(a)(3)(ii), 353.20(a)(3)(ii), and 353.21(b). Therefore, the subject incorrect antidumping duty deposit may be refunded pursuant to section 1520(a)(4).

We note that subsequent to the issuance of HQ 225466, the DOC asserted in a court case involving NSK and AFBs "that, although 19 U.S.C. 1520(a)(4) does not require, it does authorize, the refund of excess cash deposits of antidumping duties which were collected due to clerical errors." NSK Ltd and NSK Corp., v. United States, No. 92-07-00470, slip. op. [95-138] at 36 (CAFC 8/1/95).


The subject incorrect antidumping duty deposit may be refunded pursuant to 19 U.S.C. 1520(a)(4) under the narrow circumstances described above.

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, Freedom of Information Act and other public access channels.


John Durant, director
Commercial Rulings Division

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