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).
FACTS:
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
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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".
ISSUE:
Whether the subject deposited antidumping duties may be
refunded pursuant to 19 U.S.C. 1520(a)(4).
LAW AND ANALYSIS:
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
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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
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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.
HOLDING:
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.
Sincerely,
John Durant, Director
Commercial Rulings Division