Timken Co. v. US, Slip Op. 94-1. No. 91-07-00486.

• Decision Date: 03 January 1994
• Docket Number: Slip Op. 94-1. No. 91-07-00486.
• Citation: 852 F. Supp. 1040,18 CIT 1
• Parties: The TIMKEN COMPANY, Plaintiff, v. UNITED STATES, Defendant, 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

852 F. Supp. 1040

18 CIT 1

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

Slip Op. 94-1. No. 91-07-00486.

United States Court of International Trade.

January 3, 1994.

COPYRIGHT MATERIAL OMITTED

Stewart and Stewart, Eugene L. Stewart, Terence P. Stewart, James R. Cannon, Jr., John M. Breen, Margaret E.O. Edozien, William A. Fennell and Lane S. Hurewitz, Washington, DC (Scott A. Scherff, Managing Atty., The Timken Co., Canton, OH, of counsel), for plaintiff.

Frank W. Hunger, Asst. Atty. Gen.; David M. Cohen, Director, Commercial Litigation Branch, Civ. Div., U.S. Dept. of Justice, Michael S. Kane (Joan L. MacKenzie, Attorney-Advisor, Office of the Chief Counsel for Import Admin., U.S. Dept. of Commerce, Washington, DC, of counsel), for defendant.

Powell, Goldstein, Frazer & Murphy, Peter O. Suchman, Susan P. Strommer, Susan E. Silver, Niall P. Meagher and Elizabeth C. Hafner, Washington, DC, for defendants-intervenors Koyo Seiko Co., Ltd. and Koyo Corp. of U.S.A.

Donohue and Donohue, Joseph F. Donohue, Jr., Kathleen C. Inguaggiato and Daniel W. Dowe, New York City, for defendant-intervenor 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, challenging the Department of Commerce, International Trade Administration's ("ITA") final results in an administrative review of imports of tapered roller bearings ("TRBs") from Japan produced by Koyo Seiko Co., Ltd., Koyo Corporation of U.S.A. ("Koyo"), NSK Ltd. and NSK Corporation ("NSK"). 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"), 56 Fed.Reg. 26,054 (1991), as amended by Tapered Roller Bearings, Four Inches or Less in Outside Diameter, and Certain Components Thereof, From Japan; Amendment to Final Results of Antidumping Finding Administrative Review ("Amended Final Results"), 56 Fed.Reg. 31,113 (1991).

Background

On September 27, 1988, the ITA initiated an administrative review of Koyo and NSK's imports of TRBs from Japan for the period from August 1, 1987 through July 31, 1988. Initiation of Antidumping and Countervailing Duty Administrative Reviews, 53 Fed. Reg. 37,618 (1988).

On December 13, 1990, the ITA published the preliminary results of this administrative review finding a dumping margin of 54.01% for Koyo and a dumping margin of 20.34% 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, 55 Fed.Reg. 51,308, 51,309 (1990).

On June 6, 1991, the ITA published its Final Results for this administrative review finding a 47.63% dumping margin for Koyo and a 18.63% dumping margin for NSK. Final Results, 56 Fed.Reg. at 26,061.

On July 9, 1991, the ITA amended the Final Results to correct a clerical error in regard to NSK's dumping margin which resulted in a final dumping margin for NSK of 18.31%. Amended Final Results, 56 Fed. Reg. 31,113. Timken does not challenge the ITA's correction of this clerical error in regard to NSK.

However, Timken does challenge the following actions by the ITA: (1) the ITA's failure to adequately address plaintiffs arguments regarding discrepancies between the value of U.S. sales reported by respondents and the value of suspended entries reported by the U.S. Customs Service ("Customs"); (2) the ITA's determination to offset interest expenses with interest income when calculating cost of production ("COP") and constructed value; (3) the ITA's determination not to order collection of interest on bonds posted by respondents; and (4) the ITA's allowance of an adjustment to foreign market value ("FMV") for pre-sale inland freight. Memorandum in Support of Plaintiff's Motion for Judgment on the Agency Record ("Timken's Memorandum") at 11-34.

Discussion

The Court's jurisdiction over this matter is derived from 19 U.S.C. § 1516a(a)(2) (1988) and 28 U.S.C. § 1581(c) (1988).

A final determination by the ITA in an administrative proceeding will be sustained unless that determination is "unsupported by substantial evidence on the record, or otherwise not in accordance with law." 19 U.S.C. § 1516a(b)(1)(B) (1988). Substantial evidence is "relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938); Alhambra Foundry Co. v. United States, 12 CIT 343, 345, 685 F.Supp. 1252, 1255 (1988).

1. Alleged Discrepancy Between Reported Sales and Suspended Entries

Timken presented evidence to the ITA "that the quantity of suspended entries of tapered roller bearings from Japan reported by Customs was far lower than the quantity reported by respondent Japanese producers in their public submissions." Timken's Memorandum at 13 (citing Administrative Record Public Document Numbers ("AR Pub.Doc. Nos.") 66, 103).

Timken alleges that public import statistics for the period of review show that Customs suspended $17.3 million worth of TRB imports from Japan while Koyo and NSK reported to the ITA imports worth approximately $34.3 million. Timken relied upon information supplied by the ITA for its estimate of the value of TRB imports suspended by Customs and on the public versions of Koyo and NSK's questionnaire responses for its estimate of the value of their imports. Timken's Memorandum at 13; see also AR Pub.Doc. No. 66.

ITA responded to Timken's allegation by stating:

We continue to instruct Customs on the proper implementation of our instructions to suspend liquidation on entries of TRBs and collect a cash deposit, as appropriate. We are not aware of improperly liquidated entries for this review period.

Final Results, 56 Fed.Reg. at 26,055.

Timken argues that the ITA was obligated to thoroughly investigate its allegation of possible undersuspension of TRB entries as soon as Timken brought its suspicions to the ITA's attention. Timken states that "failure to collect pertinent data or to consider a relevant aspect of an issue, constitutes an abuse of discretion." Timken's Memorandum at 16 (quoting Timken Co. v. United States, 10 CIT 86, 97, 630 F.Supp. 1327, 1337-38 (1986)).

Timken also argues that, unless the alleged undersuspension is remedied, the ITA will be unable to perform its statutory duty to assess antidumping duties on "entries of the merchandise included within the determination." Id. at 18 (quoting 19 U.S.C. § 1675(a)(2) (1988)).

Finally, Timken claims that the ITA cannot delegate its responsibility to investigate and resolve this issue to Customs. Timken argues that the ITA's statutory duty to provide assessment instructions to Customs includes the duty to determine whether all entries of the subject merchandise were correctly suspended. Timken further argues that Customs' duty is merely ministerial in regard to the implementation of the ITA's suspension and assessment instructions. Id. at 18-20.

Defendant argues that Timken does not possess standing to raise this issue before this Court. Defendant states that in order to possess standing a plaintiff must allege an injury that can be remedied by a decision of this Court. Defendant asserts that there is no action this Court could take which would afford Timken the relief it seeks. Defendant's Memorandum in Opposition to Plaintiff's Motion for Judgment Upon the Agency Record ("Defendant's Memorandum") at 9-12.

Specifically, defendant maintains that the ITA is without authority to order reliquidation of entries that Customs may have already liquidated. Defendant states that "although Commerce makes the determination that is the `basis for the assessment of antidumping duties,' 19 U.S.C. § 1675(a), it is Customs that collects these duties. 19 C.F.R. §§ 353.15(a)(3)(ii), 353.21(a)." Defendant's Memorandum at 11. Defendant argues that Timken has pointed to no statutory authority which allows the ITA to order Customs to reliquidate entries, therefore, there is no relief which this Court may grant Timken. Id. at 11-12.

Finally, defendant claims that any undersuspension of entries would result in an undercollection only of cash deposits. As to the assessment and collection of antidumping duties on entries covered by this administrative review, defendant states that pursuant to the ITA's current practice, the amount of unliquidated entries affects the amount of antidumping duty assessed per entry but not the total amount of antidumping duty collected. Therefore, the total amount of antidumping duties due under the statute will be collected. Defendant's Memorandum at 11 n. 9.

Defendant-intervenor NSK agrees with defendant that Timken has no remedy for any entries which may not have been suspended from liquidation because they are already liquidated and there is no statutory authority to order reliquidation. Brief of NSK Ltd. and NSK Corporation, Defendant-Intervenors, in Opposition to Plaintiff's Motion for Judgment Upon the Agency Record ("NSK's Brief") at 13-15.

In addition, NSK argues that nothing in the statute and regulations governing the conduct of administrative reviews by the ITA suggests that the ITA is required to investigate the status of the suspension of liquidation of entries of the subject merchandise. Id. at 9-12.

NSK maintains that if Timken believed that undersuspensions were occurring, its correct remedy would have been to bring an action in mandamus against Customs, the agency statutorily charged with responsibility for suspending liquidation of merchandise subject to an antidumping duty order. Id. at 12-13.

Defendant-intervenor Koyo argues that Timken has failed to present reliable evidence that undersuspensions have occurred because the two...