Timken Co. v. U.S.

• Decision Date: 27 September 1994
• Docket Number: 93-1455,Nos. 93-1312,s. 93-1312
• Citation: 37 F.3d 1470
• Parties: The TIMKEN COMPANY, Plaintiff-Appellant, v. The UNITED STATES, Koyo Seiko Co., Ltd., Koyo Corporation of U.S.A., Inc., NSK, Ltd. and NSK Corporation, Defendants-Appellees.
• Court: U.S. Court of Appeals — Federal Circuit

Page 1470

37 F.3d 1470

16 ITRD 1801

The TIMKEN COMPANY, Plaintiff-Appellant, v. The UNITED STATES, Koyo Seiko Co., Ltd., Koyo Corporation of

U.S.A., Inc., NSK, Ltd. and NSK Corporation,

Defendants-Appellees.

Nos. 93-1312, 93-1455.

United States Court of Appeals, Federal Circuit.

Sept. 27, 1994.

Terence P. Stewart, Stewart & Stewart, Washington, DC, argued, for plaintiff-appellant. With him on the brief were Eugene L. Stewart, James R. Cannon, Jr., John M. Breen and Vincent J. Branson.

Velta A. Melnbrencis, Asst. Director, Commercial Litigation Branch, Dept. of Justice, Washington, DC, argued, for defendant-appellee. With her on the brief were Frank W. Hunger, Asst. Atty. Gen. and David M. Cohen, Director. Also on the brief were Stephen J. Powell, Chief Counsel, Berniece A. Browne, Sr. Counsel, and Joan L. MacKenzie, Attorney-Advisor, Office of the Chief Counsel for Import Admin., U.S. Dept. of Commerce, of counsel.

James A. Geraghty, Donohue & Donohue, of New York City, argued, for defendants-appellees, NSK, Ltd. and NSK Corp., Joseph F. Donohue, Jr., and Kathleen C. Inguaggiato, of Donohue & Donohue were on the brief for defendants-appellees.

Peter O. Suchman, Susan P. Strommer, Robert Torresen, Jr., and Robert A. Calaff, Powell, Goldstein, Frazer & Murphy, Washington, DC, were on the brief, for defendants-appellees, Koyo Seiko Co., Ltd. and KOYO Corp. of U.S.A., Inc.

Before ARCHER, Chief Judge ^*, FRIEDMAN, Senior Circuit Judge, and RADER, Circuit Judge.

RADER, Circuit Judge.

The United States Court of International Trade affirmed the International Trade Administration's (ITA) imposition of dumping duties on tapered roller bearings four inches or less in diameter (TRBs) imported by NSK, Limited (NSK) from April 1, 1974 through July 31, 1980, and by Koyo Seiko Company, Limited (Koyo Seiko) from April 1, 1974 through March 31, 1979 (1974-80 entries, collectively). Koyo Seiko Co. v. United States, 819 F.Supp. 1093 (Ct.Int'l Trade 1993) (affirming ITA's ultimate calculations of duties and dismissing all appeals related to the 1974-80 entries), aff'd in part, rev'd in part, and remanded, 20 F.3d 1160, --- Fed.Cir. (T) ---- (Fed.Cir.1994). The trial court also affirmed ITA's imposition of duties on TRBs imported by NSK and Koyo Seiko from August 1, 1986 through July 31, 1987 (1986-87 entries). Timken Co. v. United States, 809 F.Supp. 121 (Ct.Int'l Trade 1992). In both cases, the Court of International Trade upheld ITA's denial of interest payments under 19 U.S.C. Sec. 1677g(a) (1988) on underpayments of antidumping duties. For the 1974-80 entries, the trial court also upheld ITA's decision to exclude United States subsidiary profits from calculation of exporter's sales price (ESP) under 19 U.S.C. Sec. 1677a(e)(1) (1988). Because ITA correctly applied sections 1677g and 1677a(e)(1), this court affirms.

BACKGROUND

On October 31, 1973, the Timken Company (Timken) petitioned the Department of Treasury to impose antidumping duties on TRBs manufactured in Japan. Tapered Roller Bearings From Japan; Antidumping Proceeding Notice, 38 Fed.Reg. 33,408 (Dep't Treas.1973). Under the Antidumping Act of 1921, 19 U.S.C. Secs. 160-173 (1970) (repealed 1980) (the 1921 Act), then in effect, Treasury initiated an investigation and found that TRBs were being, or were likely to be, sold at less than fair value. Tapered Roller Bearings From Japan; Antidumping Determination of Sales at Less Than Fair Value, 39 Fed.Reg. 32,337 (Dep't Treas.1974). On January 29, 1975, the International Trade Commission (ITC) published its determination that the domestic industry was likely to be injured by sales of TRBs imported from Japan. Tapered Roller Bearings and Certain Components Thereof From Japan; Determination In 1980, the Department of Commerce replaced the Department of Treasury as the administering authority of the antidumping law. Exec. Order No. 12,188, 3 C.F.R. 131, 133 (1981), reprinted in 19 U.S.C. Sec. 2171 note (1988). Also, the Trade Agreements Act of 1979, Pub.L. No. 96-39, 93 Stat. 144 (1979) (codified as amended in scattered sections of 19 U.S.C.) (1979 Act), repealed the 1921 Act and established new administrative procedures for administration of antidumping law. The 1979 Act subjected Treasury dumping findings made under the 1921 Act to annual administrative review by the ITA, an agency within Commerce. The 1979 Act, sec. 101, Sec. 751(a), 93 Stat. 175 (1979) (current version at 19 U.S.C. Sec. 1675(a) (1988)). Under this statutory mandate, ITA undertook review of the 1976 dumping finding. Administrative Review of Antidumping Determinations, 45 Fed.Reg. 20,511 (Dep't Comm.1980). Annual administrative reviews proceeded until a 1984 amendment to 19 U.S.C. Sec. 1675(a) made administrative review available only upon request. Trade and Tariff Act of 1984, Pub.L. 98-573, Sec. 611(a)(2)(A), 98 Stat. 2948, 3031 (amending 19 U.S.C. Sec. 1675(a)(1) (1982)). Timken requested such reviews for the entries at issue in this appeal.

of Likelihood of Injury, 40 Fed.Reg. 4,366 (Int'l Trade Comm'n 1975). Treasury then issued its dumping finding on August 18, 1976. Tapered Roller Bearings and Certain Components From Japan, 41 Fed.Reg. 34,974 (Dep't Treas.1976). Treasury issued master lists which set bonding rates for NSK and Koyo Seiko. The bonding rates varied from 0% to 12%. Treasury did not calculate an estimated dumping margin. NSK and Koyo Seiko were consequently not required to make cash deposits of estimated dumping duties. Instead, NSK and Koyo Seiko TRBs were entered under bond. The bonds guaranteed payment of the margins to be set by a final determination. These entries were never liquidated.

I. The 1974-80 entries

After a lengthy administrative process, ITA published its final determinations covering the 1974-80 entries on June 1, 1990. Tapered Roller Bearings Four Inches or Less in Outside Diameter From Japan; Final Results of Antidumping Duty Administrative Review, 55 Fed.Reg. 22,369 (Dep't Comm.1990) (Final Results for 1974-80 Entries). ITA set the dumping margins at 4.99% to 23.43% for NSK, and 18.81% to 35.89% for Koyo Seiko. Id. at 22,382. ITA required no interest payments under 19 U.S.C. Sec. 1677g(a) (1988) on unpaid duties owed by NSK and Koyo Seiko. Final Results for 1974-80 Entries, 55 Fed.Reg. at 22,370. Section 1677g(a) demands interest on "overpayments and underpayments of amounts deposited on merchandise entered." ITA determined that "amounts deposited" in section 1677g(a) refers only to cash deposits of estimated antidumping duties, and not to securities such as posted bonds. Final Results for 1974-80 Entries, 55 Fed.Reg. at 22,370.

ITA also declined to deduct the profits earned by the importers' United States subsidiaries from ESP under 19 U.S.C. Sec. 1677a(e)(1) (1988). Final Results for 1974-80 Entries, 55 Fed.Reg. at 22,371. ITA refused to extend section 1677a(e)(1), which provides for reductions to ESP for "commissions for selling in the United States the particular merchandise under consideration," to encompass such profits. Final Results for 1974-80 Entries, 55 Fed.Reg. at 22,370. In addition, ITA remarked that "a deduction from United States price for profit without a corresponding adjustment to foreign market value would lead to unfair comparisons of prices." Id.

Timken appealed various aspects of ITA's Final Results for the 1974-80 Entries twice to the Court of International Trade. In its first appeal, Timken challenged ITA's decision not to impose interest under section 1677g(a) for duties owed on the 1974-80 entries. Timken Co. v. United States, 777 F.Supp. 20 (Ct.Int'l Trade 1991) (Timken I ). The Court of International Trade upheld the agency's interpretation of "amounts deposited" in section 1677g(a). Id. at 27. In support of this decision, the court noted that "the provision requiring cash deposits of estimated duties [19 U.S.C. Sec. 1673e(a)(3) (1988) ] and the interest provision [section 1677g(a) ] were intended to operate simultaneously."

                Id. at 26.   Noting the deference afforded ITA's interpretation of the antidumping statute, the court affirmed ITA's determination that section 1677g(a) applies only to cash deposits of estimated duties.  Id. at 27.   The court also declined to impose interest under 19 U.S.C. Sec. 580 (1988) or in equity.  Id
                

In the second appeal to the Court of International Trade, Timken challenged, inter alia, ITA's refusal to deduct the profits of the Japanese exporters' domestic subsidiaries from ESP calculations. Timken Co. v. United States, 795 F.Supp. 438, 440 (Ct.Int'l Trade 1992) (Timken II ). Relying on previous Court of International Trade decisions rejecting Timken's interpretation of the term "commissions" in section 1677a(e)(1) as including profits, the court agreed with ITA's interpretation. Id. at 445. The court affirmed ITA's determinations, remanding for recalculation of the dumping margins for other reasons. Id. at 448-49. The Court of International Trade affirmed the remand results on March 4, 1993 and dismissed the appeals relating to the 1974-80 entries. Koyo Seiko Co., 819 F.Supp. at 1096. Timken appealed to this court.

II. The 1986-87 entries

In 1990, ITA published the final results for the 1986-87 entries. Tapered Roller Bearings Four Inches or Less in Outside Diameter and Certain Components Thereof From Japan; Final Results of Antidumping Duty Admin. Review, 55 Fed.Reg. 38,720 (1990) (Final Results for 1986-87 Entries). ITA set dumping margins at 52.17% for Koyo Seiko and 35.00% for NSK. Id. at 38,729. ITA again exempted the importers from interest payments under section 1677g(a). Id. at 38,726-27.

On November 25, 1992, the Court of International Trade affirmed ITA's interpretation of section 1677g(a) for the 1986-87 entries. Timken Co. v. United States, 809 F.Supp. 121, 122-23 (Ct.Int'l Trade 1992) (Timken III ). The trial court relied in part on its earlier disposition of this issue in Timken I to reject Timken's interpretation of ...