Timken Co. v. US

• Decision Date: 25 October 1991
• Docket Number: No. 90-06-00313.,90-06-00313.
• Citation: 777 F. Supp. 20
• Parties: The TIMKEN COMPANY, Plaintiff, v. UNITED STATES, Defendant, and Koyo Seiko Co., Ltd. and Koyo Corporation of U.S.A.; NSK Ltd. and NSK Corporation, Defendants-Intervenors.
• Court: U.S. Court of International Trade

777 F. Supp. 20

The TIMKEN COMPANY, Plaintiff, v. UNITED STATES, Defendant, and Koyo Seiko Co., Ltd. and Koyo Corporation of U.S.A.; NSK Ltd. and NSK Corporation, Defendants-Intervenors.

No. 90-06-00313.

United States Court of International Trade.

October 25, 1991.

Stewart and Stewart (Eugene L. Stewart, Terence P. Stewart and James R. Cannon, Jr.), for plaintiff.

Stuart M. Gerson, Asst. Atty. Gen., David M. Cohen, Director, Commercial Litigation Branch, Civ. Div., U.S. Dept. of Justice (Velta A. Melnbrencis), Joan L. Mackenzie, Attorney-Advisor, Office of Chief Counsel for Import Admin., U.S. Dept. of Commerce, of counsel, for defendant.

Powell, Goldstein, Frazer & Murphy (Peter O. Suchman, Richard M. Belanger, Susan P. Strommer, Eric G. Stockel and Robert Torresen, Jr.), for defendants-intervenors Koyo Seiko Co., Ltd. and Koyo Corp. of U.S.A.

Donohue and Donohue (Joseph F. Donohue, Jr., James A. Geraghty and Kathleen C. Inguaggiato), for defendants-intervenors NSK Ltd. and NSK Corp.

OPINION

TSOUCALAS, Judge:

Plaintiff, The Timken Company ("Timken"), brought this action to challenge the final results of an administrative review conducted by the Department of Commerce, International Trade Administration ("Commerce" or "ITA"), of an outstanding affirmative dumping finding dating back to 1976. Tapered Roller Bearings Four Inches or Less in Outside Diameter from Japan; Final Results of Antidumping Duty Administrative Review, 55 Fed.Reg. 22,369 (June 1, 1990). The matter is presently before the Court to determine whether Commerce erred in concluding that importers are not liable for interest on any duties to be assessed on the entries subject to the 1976 finding. The Court heard oral argument on September 11, 1991.

Background

In 1974, the United States Treasury Department ("Treasury"), the agency then responsible for the administration of the antidumping laws, conducted a sales at less than fair value ("LTFV") investigation of 0-4 inch tapered roller bearings ("TRBs") and TRB components from Japan. The investigation resulted in a determination of affirmative dumping for, among other importers, Koyo Seiko Co., Ltd., Koyo Corporation of U.S.A. (collectively "KOYO") and Nippon Seiko K.K., NSK Corporation (collectively "NSK")¹, defendants-intervenors herein. Tapered Roller Bearings From Japan AntiDumping; Determination of Sales at Less Than Fair Value, 39 Fed. Reg. 32,337 (Sept. 3, 1974). Treasury immediately halted appraisement proceedings for all subject entries pending an injury determination by the United States International Trade Commission ("ITC"). The ITC subsequently determined that an industry in the United States was likely to suffer material injury by reason of the LTFV sales and, Treasury issued a "dumping finding" on August 18, 1976. T.D. 76-227. However, for reasons that are somewhat obscure, Treasury never calculated estimated dumping margins. Defendant's Opposition to Plaintiff's Motion for Partial Judgment Upon the Administrative Record at 6. Consequently, importers were not required to make actual cash deposits, "although some of them may have posted bonds pursuant to Customs regulations." Id.

On January 2, 1980, the administration of antidumping laws was transferred from Treasury to the Department of Commerce by virtue of the Trade Agreements Act of 1979 ("the 1979 Act"). Besides transferring the responsibility for enforcement of the dumping laws the 1979 Act provided for the annual review of all unliquidated entries subject to outstanding dumping findings. Accordingly, Commerce commenced conducting annual administrative reviews of all unliquidated TRB entries subject to T.D. 76-227. These reviews were discontinued in 1984, however, when section 751 of the Tariff Act of 1930, codified at 19 U.S.C. § 1675 (1982 & 1984 Supp.), was amended to provide that administrative reviews be conducted upon request only.

As prescribed by the revised 19 U.S.C. § 1675(a), Timken requested a review of all unliquidated entries of 0-4 inch TRBS imported by KOYO and NSK dating back to 1974. Pursuant to Timken's request, Commerce reinitiated the reviews of all entries subject to T.D. 76-227 and issued the final results of its review on June 1, 1990. Finally, some fourteen years after the issue of the original dumping finding, Commerce established dumping margins for the importers: 18.81-35.89% for KOYO and 4.99-23.43% for NSK. 55 Fed.Reg. at 22,382. However, since the review results are being challenged in this court by both the importers and Timken, liquidation has been enjoined pending a final disposition.

Timken filed the instant action challenging certain aspects of Commerce's review results. Among the aspects with which Timken takes issue is Commerce's position regarding the importers' liability for interest on dumping duties to be assessed on their entries dating back to the original withholding of appraisement. Commerce maintains that there is no statutory authority for the imposition of interest in this case because the pertinent interest provision applies only where cash deposits are involved. Since, here, the merchandise was entered upon bonds, interest cannot be imposed pursuant to 19 U.S.C. § 1677g.

Nevertheless, plaintiff argues, on a variety of theories, that Commerce is statutorily required to collect interest from the importers on the dumping duties to be assessed on merchandise encompassed by this review, despite the fact that the duties have not yet been assessed nor their payment required. Commerce's failure to direct Customs to collect interest in this instance, Timken maintains, would amount to an interest-free loan to the importers, thereby compounding the injury to the domestic industry.

Discussion

Jurisdiction

Since defendants-intervenors have challenged the Court's jurisdiction over the issue of interest, it is well to address this matter at the outset. KOYO and NSK maintain the interest issue is not appertain to the underlying dumping determination, but rather is a protestable matter of duty assessment and collection by Customs, and as such is not properly before the Court at this time. Defendants-intervenors cite our appellate court's decision in Nichimen America, Inc. v. United States, 938 F.2d 1286 (Fed.Cir.1991) in support of this contention.

In a case such as this, any discussion of jurisdictional propriety requires an analysis of the statutory scheme for judicial review pursuant to the Antidumping Act of 1921, as well as, the 1979 Act. Under the Antidumping Act of 1921, after Treasury issued a dumping finding, Customs was charged with the determination, assessment and eventual collection of the dumping duties assessed. An interested party could challenge any aspect of these procedures by filing a protest with Customs. 19 U.S.C. § 1514(a)(1976). If the protest was denied, a legal action seeking judicial review of the denial could be commenced in the Customs Court pursuant to 28 U.S.C. § 2632 (1976).

The 1979 Act changed the statutory scheme of antidumping duty law. Title X of the Act, however, specifically provided that outstanding dumping findings issued pursuant to the Antidumping Act of 1921 would remain in effect, subject to review under section 751 of the Tariff Act of 1930.

Section 751 states in pertinent part:

(a) Periodic review of amount of duty

(1) In general

At least once during each 12-month period beginning on the anniversary of the date of publication of a countervailing duty order under this subtitle or under section 1303 of this title, an antidumping duty order under this subtitle or a finding under the Antidumping Act, 1921, or a notice of the suspension of an investigation, the administering authority, if a request for such a review has been received and after publication of notice of such review in the Federal Register, shall—

(A) review and determine the amount of any net subsidy,

(B) review, and determine (in accordance with paragraph (2)), the amount of any antidumping duty, and

....

and shall publish the results of such review, together with notice of any duty to be assessed, estimated duty to be deposited, or investigation to be resumed in the Federal Register.

(2) Determination of antidumping duties

For the purpose of paragraph (1)(B), the administering authority shall determine —

(A) the foreign market value and United States price of each entry of merchandise subject to the antidumping duty order and included within that determination, and

(B) the amount, if any, by which the foreign market value of each such entry exceeds the United States price of the entry.

The administering authority, without revealing confidential information, shall publish notice of the results of the determination of antidumping duties in the Federal Register, and that determination shall be the basis for the assessment of antidumping duties on entries of the merchandise included within the determination and for deposits of estimated duties.

In the event that an interested party disagreed with Commerce's determination issued pursuant to a section 751 review, the final results could be challenged in this court. 19 U.S.C. § 1516a(a)(2) (1988). Any actions undertaken by Customs in the course of implementing Commerce's challengeable determination, however, were made final and conclusive on all parties unless the underlying determination was challenged under section 1516a. 19 U.S.C. § 1514(b) (1988).

At first glance, it seems rudimentary that since a section 751 review of the outstanding finding was effected, and the parties objected to the results embodied in the determination, 19 U.S.C. § 1516a confers jurisdiction upon this court to resolve any challenge stemming from the determination. Defendants-intervenors, however, insist that Nichimen requires a different result. The Court is not persuaded by this argument.

The issue before the court in Nichimen was whether a section 751 review determination could give rise to judicial review of a broad range of issues. The...