809 F.Supp. 121 (CIT. 1992), Court 90-10-00548, Timken Co. v. United States

Docket Nº:Court 90-10-00548
Citation:809 F.Supp. 121
Party Name:Timken Co. v. United States
Case Date:November 25, 1992
Court:Court of International Trade
 
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Page 121

809 F.Supp. 121 (CIT. 1992)

The TIMKEN COMPANY, Plaintiff,

v.

UNITED STATES, Defendant,

Koyo Seiko Co., Ltd. and Koyo Corporation of U.S.A.; NSK Ltd. and NSK Corporation, Defendant-Intervenors.

Court No. 90-10-00548.

United States Court of International Trade.

Nov. 25, 1992.

Stewart and Stewart, Eugene L. Stewart, Terence P. Stewart, James R. Cannon, Jr., John M. Breen and Margaret E.O. Edozien; DC, Scott A. Scherff, Managing Atty., The Timken Co., Canton, Ohio, of counsel for plaintiff.

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

Powell, Goldstein, Frazer & Murphy, Peter O. Suchman, Susan P. Strommer and Niall P. Meagher, DC, for defendant-intervenors Koyo Seiko Co., Ltd. and Koyo Corp. of U.S.A.

Donohue and Donohue, Joseph F. Donohue, Jr. and Kathleen C. Inguaggiato, New York City, for defendant-intervenors NSK Ltd. and NSK Corp.

OPINION

TSOUCALAS, Judge:

Plaintiff, The Timken Company ("Timken"), moves pursuant to Rule 56.1 of the Rules of this Court for judgment on the agency record. This motion challenges the final determination of the Department of Commerce, International Trade Administration

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("Commerce" or "ITA"), in Tapered Roller Bearings Four Inches or Less in Outside Diameter and Certain Components Thereof From Japan; Final Results of Antidumping Duty Administrative Review ("Final Results"), 55 Fed.Reg. 38,720 (1990).

BACKGROUND

The determination subject to review in this case covers the period from August 1, 1986 through July 31, 1987 of the antidumping duty order issued by the Department of the Treasury in Tapered Roller Bearings and Certain Components From Japan, 41 Fed.Reg. 34,974 (1976) (T.D. 76-227). This administrative review was commenced on September 21, 1987. Initiation of Antidumping and Countervailing Duty Administrative Reviews; France et al., 52 Fed.Reg. 35,466-67 (1987). The preliminary results of the administrative review were published on August 16, 1989 and Commerce determined margins of 67.40% for Koyo Seiko and 33.62% for NSK. Tapered Roller Bearings Four Inches or Less in Outside Diameter and Certain Components Thereof From Japan; Preliminary Results of Antidumping Duty Administrative Review, 54 Fed.Reg. 33,749 (1989). Koyo's margin was subsequently changed to 33.66% because the Department changed its computer program. See Administrative Record ("AR") (Pub.) Doc. 303. On September 20, 1990, Commerce published the final results in this administrative review, establishing a dumping margin of 52.17% for Koyo Seiko and 35.00% for NSK. Final Results, 55 Fed.Reg. at 38,729.

Discussion

In reviewing a final ITA determination, this Court must uphold that determination unless it is "unsupported by substantial evidence on the record, or otherwise not in accordance with law." 19 U.S.C. § 1516a(b)(1)(B) (1988 & 1992 Supp.). Substantial evidence has been defined as being "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. NLRB, 340 U.S. 474, 477, 71 S.Ct. 456, 459, 95 L.Ed. 456 (1951) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938)).

I. Collection of Interest on Estimated Duty Deposits

Plaintiff's first contention is that Commerce improperly failed to collect interest on bonds which were posted by NSK and Koyo to cover estimated antidumping duties on the tapered roller bearings at issue. In its determination, Commerce determined that bond posting would not require collection of any interest from Koyo and NSK. Final Results, 55 Fed.Reg. at 38,726.

Pursuant to 19 U.S.C. § 1677g(a) (1992 Supp.), interest is collectable on "overpayments and underpayments of amounts deposited on merchandise entered, or withdrawn from warehouse...." The issue of interest collection was raised before this Court in The Timken Co. v. United States ("Timken I"), 15 CIT 526, 777 F.Supp. 20 (1991). In Timken I, this Court held that the statute requires interest only upon underpayments and overpayments of actual cash deposits against dumping duties found to be due, and not in a case in which importers posted a bond. Id.

Plaintiff, however, urges the Court to reconsider this issue. It claims that the entries covered in Timken I were nearly all made prior to 1980 at a time when the statute did not require the collection of interest. It further claims that the entries covered by this action were made during 1986-87, subsequent to the enactment and amendment of the interest provision, 19 U.S.C. § 1677g.

Regardless of plaintiff's contentions, the statutory language is clear on its face that interest is collectable only on deposits and not on bonds. In Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), the Supreme Court stated that when evaluating an agency's statutory interpretation, the question is "whether Congress

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has directly spoken to the precise question at issue." Id. at 842, 104 S.Ct. at 2781. The Court further stated that if "the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." Id. at 842-43, 104 S.Ct. at 2781. Furthermore, the statutory law is replete with references to "amounts deposited." See 19 U.S.C. §§ 1677g, 1673f(b) and 1675(a) (1988 & 1992 Supp.). There is no mention in any of these sections of amounts subject to a bond.

On other occasions, Congress has linked deposits and bonds together. See 19 U.S.C. §§ 1673b(d)(2) and 1673d(c)(1)(B) (1988 & 1992 Supp.). The references in these sections to "cash deposit, bond, or other security," in the provisions are evidence that Congress knew how to specify bonds and other security when it wished to do so. Furthermore, plaintiff has not presented any new argument that would contradict Commerce's determination that "amounts deposited" do not include posted bonds. Thus, the ITA's determination on this issue was reasonable, supported by substantial evidence and in accordance with law and, therefore, is affirmed.

II. Cost of Production Adjustment

Plaintiff also challenges the ITA's use of Koyo's responses in determining Cost of Production ("COP")....

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