HQ 224623 - Applications for further review of protests ##2704-92-100232 through 2704-92-100235 concerning the assessment of antidumping duties (ADD) and interest and deemed liquidation; Section 751(a) of the Tariff Act of 1930, as amended by section 611(a)(2)(A) of the Tariff and Trade Act of 1984; 19 U.S.C. 1504(d); Kern-Liebers USA, Inc. v. United States, CIT slip op. 95-50 (March 23, 1995); ABC International Traders v. United States, CIT Slip. Op. 95-97 (May 23, 1995). - United States International Trade Commision Rulings

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HQ 224623

HQ 224624
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September 22, 1995

LIQ-4-01 R:C:E 224623-26 TLS

CATEGORY: ENTRY

District Director
U.S. Customs Service
300 South Ferry Street
Terminal Island
San Pedro, California 90731

RE: Applications for further review of protests ##2704-92-100232 through 2704-92-100235 concerning the assessment of antidumping duties (ADD) and interest and deemed liquidation; Section 751(a) of the Tariff Act of 1930, as amended by section 611(a)(2)(A) of the Tariff and Trade Act of 1984; 19 U.S.C. 1504(d); Kern-Liebers USA, Inc. v. United States, CIT slip op. 95-50 (March 23, 1995); ABC International Traders v. United States, CIT Slip. Op. 95-97 (May 23, 1995).

Dear Sir:

This office has received the above-referenced applications for further review (AFR) of the protests as provided for under Customs regulations. We have considered the protests and have made the following decision. As these protests involve the same protestant, arise from the same set of transactions, and are identical in every way except for the individual entry numbers, we have consolidated our response to them into one ruling.

FACTS:

Entries were made between September 14, 1987 and July 26, 1988 on television sets from Japan. At the time of entry, the merchandise at issue was subject to a notice of final results of an administrative review, dated June 10, 1985 (50 Fed. Reg. 24278). That review determined that a cash deposit should be made upon any shipment of the subject merchandise made after February 28, 1987. The protestant did not participate in that review. The cash deposit was not collected at the time of the entries because the dumping margin for the manufacturer was 0.28 percent and the Department of Commerce treats such margins as de minimis for collection of estimated duty purposes. The protestant contends that it is not subject to the administrative review because it is not specifically listed among the firms subject to the final results of that review. You state that while the protestant is not listed, the sets are manufactured by a firm listed in the review and antidumping duty was assessed as a result.

The protestant also argues that if antidumping duty does apply, no interest should be assessed because no cash deposits were demanded or tendered on these entries.

ISSUES:

Whether the assessment of antidumping duties applicable to televisions made by Victor should be applied to entries of those televisions by the protestant.

Whether the protestant is liable for interest where the collection of the estimated duty deposit was waived.

LAW AND ANALYSIS:

The subject entries were liquidated on October 18 and October 25, 1991, with antidumping duties and interest being assessed. These protests were timely filed within 90 days of the liquidation dates on January 13, 1992.

An dumping finding was made on March 10, 1971, which involved the subject merchandise. Final results of an administrative review of that finding was published on June 10, 1985 (50 Fed. Reg. 24278). Commerce issued instructions to Customs on July 22 or 23, 1991 to liquidate the entries.

On the issue of applicability of antidumping duties to the protestant, the protestant claims that it is not subject to the published results because it is not specifically listed among the firms named in the results. The protestant adds that the manufacturer of the subject merchandise, Victor, was not a party to the sale or exportation of the television sets and therefore should not be linked to the protestant's entries.

The appropriate proceeding in which to determine whether dumping duties are applicable is the administrative review under section 751(a) of the Tariff Act of 1930. See also Customs ruling HQ 224710 (August 16, 1993). The fact that the protestant chose not to avail itself of this process does not give it the right to circumvent the process later through protest. Protestant challenges the assessment of antidumping duties on its entries at the rates determined for the manufacturer of the televisions, rather than at the deposit rate in effect at the time of entry. According to protestant, its entries should have been liquidated as entered, because no review was requested of the resellers from whom it purchased the subject merchandise.

It is longstanding Commerce practice to look at the prices charged by the manufacturer, as opposed to the trading company, where the manufacturer knows the destination of the merchandise. Chrome-Plated Lug Nuts From Taiwan; Final Determination of Sales at Less Than Fair Value, 56 Fed. Reg. 36130 (July 31, 1991). If Commerce determines during a review that the manufacturer had such knowledge, then Commerce "conclude[s] that the [manufacturers] are effectively acting as exporters, and [uses] their pricing structure to measure dumping activity." Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof From France; et. al.; Final Results of Antidumping Duty Administrative Reviews, 57 Fed. Reg. 28360, 28428 (June 24, 1992)(Comment 18)("AFB's from France"). In such a situation, Commerce "cannot conduct an administrative review" for the trading company. Id. Rather, the trading company's importer is required to post cash deposits at the manufacturer's rate, and Commerce will instruct Customs to liquidate at the manufacturer's rate as calculated during the administrative review. Id. Automatic assessment under 19 C.F.R. §353.22(e)(1994) would be appropriate only if no review was requested for the manufacturer. Id.

If, on the other hand, Commerce finds that the manufacturer did not know the destination of the merchandise, then Commerce will use the reseller's sales to calculate the dumping margin that will apply to that reseller's entries. Accordingly, if no review was requested for that reseller, than automatic assessment under 19 C.F.R. §322.22(e) would be correct.

As the foregoing makes clear, the appropriateness of the relief ABC seeks turns on the question of whether JVC knew the destination of its merchandise when it sold the TV's to the resellers who sold to protestant. If JVC knew the merchandise was destined for the United States, then Commerce would have treated those sales as sales by JVC, and assessment at JVC's rates would have been correct. Similarly, if the manufacturers lacked such knowledge, then Commerce would have treated the sales as sales by the reseller and, no review being requested, automatic assessment would have been appropriate.

Commerce conducted reviews of JVC entries that are the subject of this protest. Had it so chosen, protestant as a United States importer of the subject merchandise, could have participated in those reviews and asked Commerce to determine whether JVC knew the destination of the subject merchandise. 19 C.F.R. § 353.22(a)(3). If Commerce determined that JVC did have knowledge, then protestant could have challenged that determination pursuant to 28 U.S.C. § 1581(c). If a Court overturned Commerce's determination, and no review had been requested for protestant's resellers, than protestant's entries would have been liquidated as entered in accordance with 19 C.F.R. § 353.22(e).

As a practical matter, protestant's failure to participate in the administrative review means it lacks standing to bring a protest. As the Federal Circuit has noted, however, protestant "may not circumvent the proper jurisdictional statute by asserting that [its] decision not to proceed under the proper Congressional mechanism renders [its] available remedies manifestly inadequate." National Corn Growers Ass'n v. Baker, 840 F. 2d 1547(Fed. Cir. 1988). As the Court further noted:

[W]here Congress has prescribed in great detail a particular track for a claimant to follow, in administrative or judicial proceedings, and particularly where the claim is against the United States or its officials in their official capacity, the remedy will be construed as exclusive without a specific statement to that effect. The claimant will not be allowed to sail past carefully constructed limitations simply by invoking other and more general legislation. This is so even when the general legislation might have been construed to cover the case if the specific legislation had not been enacted.

Id. At 1558. Having failed to participate in the administrative reviews of JVC, protestant may not in this action try to determine whether JVC knew the destination of the televisions when they were sold to the resellers that sold to protestant. By doing so in this action, protestant is seeking to "sail past [the] carefully constructed" administrative review process, and the "particular track" that Congress has prescribed for challenging Commerce determinations, section 1581(c). Because its remedy under section 751 of the Tariff Act of 1930 was the appropriate place for Commerce to examine that issue, protestant cannot now try to have those facts determined in a protest action. See ABC International Traders v. U.S., CIT Slip. Op. 95-97 (May 23, 1995).

The protestant argues that the assessment of interest on the difference between the estimated duties and the final antidumping duties assessed is contrary to the decision in Timken Co. V. U.S., 15 CIT 526 (1991). The protestant, in effect, argues that the liquidation instructions to Customs are in error. That the collection of interest was required in the liquidation instructions is not in dispute.

The reliance on Timken is misplaced. In Timken, the entries were filed before the dumping margin was established by Commerce. Here, the entries were filed after the margin was established. The estimated duties were not collected because the margin was considered to be de minimis by Commerce. In Timken, Commerce instructed Customs not to collect interest on the entries involved; here, Commerce instructed Customs to collect interest on the entries.

In any event, the issue whether Commerce was correct in instructing Customs to collect interest is not a matter subject to protest. The issue of whether to assess interest falls within the scope of an investigation and subsequent determination pursuant to the Trade Agreements Act of 1979, as amended, lies largely in the International Trade Administration's discretion. See, e.g., Mitsubishi Electric Corp. V. United States, 898 F.2d. 1577, 1583(Fed. Cir. 1990); Kern-Liebers USA, Inc. V. United States, CIT Slip. Op. 95-50(March 23, 1995). This discretion is used to "define and clarify" the scope of an antidumping investigation "in a manner which reflects the intent of the petition." Kern-Liebers USA, supra; Minebea Co. V. United States, 16 CIT 20, 22, 782 F. Supp. 117, 120 (1992). In addition, section 353.24(c) of the Regulations, 19 CFR 353.24(c), states the following:

The Secretary [of Commerce] will instruct the Customs Service to calculate interest for each entry from the date that a cash deposit is required to be deposited for the entry through the date of liquidation of the entry.

Therefore, this protest is not the appropriate procedure in which to determine the proper scope of an dumping assessment or whether interest to be applied.

HOLDING:

Protests ##2704-92-100232 through 2704-92-100235 should be DENIED.

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

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