Slip Op. 07-116
UNITED STATES COURT OF INTERNATIONAL TRADE
BEFORE: SENIOR JUDGE NICHOLAS TSOUCALAS
________________________________________
:
SKF USA INC., :
:
Plaintiff, :
:
v. :
:
UNITED STATES OF AMERICA, :
UNITED STATES CUSTOMS AND BORDER :
PROTECTION, ROBERT C. BONNER :
(COMMISSIONER, UNITED STATES CUSTOMS : Court No. 05-00542
AND BORDER PROTECTION), UNITED STATES :
INTERNATIONAL TRADE COMMISSION, and :
STEPHEN KOPLAN (CHAIRMAN, UNITED :
STATES INTERNATIONAL TRADE COMMISSION), :
:
Defendants, :
:
and :
:
TIMKEN US CORPORATION, :
:
Defendant-Intervenor. :
________________________________________:
Steptoe & Johnson LLP (Herbert C. Shelley, Alice A. Kipel,
Susan R. Gihring and William G. Isasi) for SKF USA Inc., Plaintiff.
Peter D. Keisler, Assistant Attorney General, Jeanne E.
Davidson, Director, Patricia M. McCarthy, Assistant Director,
Commercial Litigation Branch, Civil Division, United States
Department of Justice (David S. Silverbrand); of counsel: Charles
Steuart, United States Bureau of Customs and Border Protection, for
the United States, Defendant.
James M. Lyons, General Counsel, Neal J. Reynolds, Assistant
General Counsel, Office of the General Counsel, Unites States
International Trade Commission (David A.J. Goldfine) for the United
States International Trade Commission and Stephen Koplan, Chairman,
Defendant.
Court No. 05-00542 Page 2
Stewart and Stewart (Terence P. Stewart, Amy S. Dwyer and J.
Daniel Stirk), for Timken US Corporation, Defendant-Intervenor.
Dated: July 26, 2007
OPINION
I. Jurisdiction
The Court has jurisdiction over this matter pursuant to 28
U.S.C. § 1581(i) (2000).
II. Standard of Review
As set out in the Administrative Procedure Act (“APA”)1 this
Court “will set aside Customs’ denial of offset distribution only
if it is ‘arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.’” Dixon Ticonderoga Co. v.
United States, 486 F.3d 1353, 1354 (Fed. Cir. 2006)(quoting Candle
Corp. of America v. U.S. Int’l Trade Comm’n, 374 F.3d 1087, 1091
(Fed. Cir. 2004)(citing 5 U.S.C. § 706 (2000))).
III. Background
On September 12, 2006, this Court issued an order directing
the United States International Trade Commission (“ITC” or
1
The provisions of subchapter II and chapter seven of
title five of the United States Code were originally enacted on
June 11, 1946, and are popularly known as the Administrative
Procedure Act. It has been amended since. See 5 U.S.C. §§ 551-
559, 701-706.
Court No. 05-00542 Page 3
“Commission”) and the Bureau of Customs and Border Protection
(“Customs”)2, to “re-examine their decision to deny SKF [Continued
Dumping and Subsidy Offset Act of 2000] disbursements for the 2005
fiscal year in accordance with” this Court’s decision in SKF USA
Inc. v. United States (“SKF USA”), ___ CIT ___, 451 F. Supp. 2d
1355 (2006). On December 8, 2006, Customs filed its remand
determination. See Reconsideration of the Fiscal Year 2005 CDSOA
Certification of SKF USA, Inc. (“Customs’ Reconsideration”),
December 8, 2006.3 On December 11, 2006, the ITC filed its remand
determination. See Letter from Patrick V. Gallagher, Jr., ITC, to
the Honorable Tina Potuto Kimble, Clerk of the Court (Dec. 11,
2006) (“ITC Remand Determination”). On January 10, 2007, SKF USA
Inc. (“SKF” or “Plaintiff”) and Defendant-Intervenor, Timken U.S.
Corp. (“Timken”) filed their comments upon the remand results. See
Pl.’s Comments on Remand Determinations Issued By Def. United
States Customs and Border Protection and Defendant United States
2
The Bureau of Customs and Border Protection was renamed
United States Customs and Border Protection, effective March 31,
2007. See Name Change From the Bureau of Immigration and Customs
Enforcement to U.S. Immigration and Customs Enforcement, and the
Bureau of Customs and Border Protection to U.S. Customs and Border
Protection, 72 Fed. Reg. 20,131 (April 23, 2007).
3
Though the ITC issued its remand in the form of a letter
to the Honorable Tina Potuto Kimble, Clerk of the Court, CIT, on
December 11, 2006, the ITC did previously advise Customs of the
results. See Custom’s Remand Determination at 1 (“The ITC has
informed [Customs] that SKF has been added to its list of potential
affected producers for Bearings from Japan . . . for fiscal year
2005.”).
Court No. 05-00542 Page 4
International Trade Commission (“SKF Comm.”) at 10; Defendant-
Intervenor’s Comments on the Remand Results (“Timken Comm.”) at 4.
In its remand, the ITC determined that SKF “did participate in
the original investigation by questionnaire response and the
company is eligible, using the definitions announced in [SKF USA],
to be placed on the list prepared by the [ITC] under the Byrd
Amendment for the order covering ball bearings from Japan.” ITC
Remand Determination at 2. As such, the ITC “revised the Byrd
Amendment list for the antidumping duty order on ball bearings from
Japan to include” SKF. Id. at 2.
In its remand, Customs stated:
In its July 13, 2005, certification, SKF sought a
disbursement in the amount of its total qualifying
expenditures, $115,033,000.00. Including SKF’s
certification, the total qualifying expenditures
submitted by affected domestic producers for Commerce
Case No. A-588-8044 would have been $3,873,340,322.67.
A total of $47,810,802.17 was available for distribution
to affected domestic producers in this Commerce Case. In
accordance with 19 U.S.C. § 1675c(d)(3) and 19 C.F.R. §
159.64(c)(2), affected domestic producers would only be
entitled to receive a pro rata share of the available
4
Commerce determined that there were sales at less-than-
fair value resulting in an antidumping duty order. See Antidumping
Duty Orders for Ball Bearings, Cylindrical Roller Bearings, and
Spherical Plain Bearings, and Parts Thereof From Japan, Inv. No. A-
588-804, 54 Fed. Reg. 20,904 (Dep’t Commerce May 15, 1989).
Following the enactment of the Continued Dumping and Subsidy Offset
Act of 2000 (“CDSOA”), the ITC provided Customs with a list of
entities (i.e. manufacturer, producer, farmer, rancher, or worker
representative) eligible as “affected domestic producers,” on which
SKF was not originally included. See SKF USA, ___ CIT at __, 451
F. Supp. 2d at 1358.
Court No. 05-00542 Page 5
funds because the total qualifying expenditures certified
exceeds the amount available for distribution. SKF’s
certified qualifying expenditures represent 2.9699% of
the total qualifying expenditures for this Commerce Case
No. A-588-804.
If, after all opportunities for rehearing and/or appeal
have been exhausted, [SKF USA] is the final court
decision upon this action, SKF would receive a
distribution for up to $1,419,933.01 in CDSOA funds for
fiscal year 2005, to the extent these funds are either
recoverable from the affected domestic producers who
initially received them or are available . . ..
Custom’s Remand Determination at 1-2.
On January 10, 2007, SKF filed comments to both the ITC Remand
Determination and Customs’ Reconsideration with this Court. See
SKF Comm. at 10. Comments were also submitted by Timken on the
same day. See Timken Comm. at 4. Rebuttal comments were submitted
by the ITC, Customs and Timken on January 30, 2007. See Def. U.S.
International Trade Commission’s Response to Pl.’s Comments on the
Commission’s Remand Determination (“ITC’s Reb.”) at 1-9; Response
to Comments Upon Remand Results (“Customs’ Reb.”) at 16; Rebuttal
Comments of Timken US Corporation to SKF USA’s Comments on the
Remand Results (“Timken’s Reb.”) at 15.
IV. Discussion
A. Contentions of the Parties
1. SKF’s Contentions
SKF agreed with the final results of both Customs’
Reconsideration and the ITC Remand Determination (collectively, the
Court No. 05-00542 Page 6
“Remand Determinations”) to the extent that both Customs and the
ITC (collectively, the “Defendants”) now find that SKF is eligible
to be placed on the list of “affected domestic producers” and is as
such eligible to receive distributions under 19 U.S.C. § 1675c.
See Pl.’s Comm. at 2. SKF, however, objects to the ITC having
“only revised the CDSOA ‘affected domestic producer’ list to
include [SKF] for the antidumping duty order on ball bearings from
Japan.” Id. at 3.
SKF stresses that “the investigation in which the [ITC] noted
that [SKF] participated was not limited to Japan, but covered ball
bearings from nine countries.” Id. at 3. SKF further contends
that this Court’s decision in SKF “with regard to the ITC was
limited only as to fiscal year 2005. It was not limited as to
country.” Id. at 4. Furthermore, SKF contends that a
determination that SKF is eligible for disbursements under all
outstanding ball bearing orders would be consistent with SKF’s last
request for relief, which requested that this Court:
issue an order severing from the antidumping law, those
provisions of 19 U.S.C. 1675c . . . that limit
eligibility for disbursements to only those domestic
producers that support antidumping petitions and
declaring those provisions unconstitutional, null and
void, and issue an order declaring that [SKF] is entitled
to be considered for distribution of a proportionate
share of CDSOA disbursements for fiscal year 2005.
Id. at 5 (citing to Am. Complaint at 17, ¶ 4).
Court No. 05-00542 Page 7
SKF further argues that as Customs relied solely on SKF’s July
13, 2005 certification, Customs thereby failed to consider the
amended certification for Japan, as well as other certifications.
See id. at 6. SKF specifically raises Customs’ refusal to consider
an amended certification for disbursements under the antidumping
order against ball bearings from Japan, as well as certifications
for seven other countries, which SKF filed with Customs on
September 28, 2006. Id. at 6. SKF contends that this “refusal to
use the amended certification to calculate [SKF’s] proportional
share of disbursements is unsupportable.” Id. at 6.
2. ITC’s Contentions
The ITC contends that when “SKF filed its appeal in October
2005, [SKF] made clear that it was challenging only the two
agency’s actions relating to its requests for Byrd Amendment
distributions for the Japanese order.” ITC Reb. at 2; (citing to
Complaint, ¶¶ 7, 15). The ITC stresses that SKF’s claim “reflects
a not particularly subtle attempt to broaden the scope of [SKF’s]
appeal and the nature of the Court’s decision on this matter.” Id.
at 4.
The ITC stresses that the scope of the Court’s review in the
case at bar “‘is confined to the record developed before the
agency[.]’” Id. at 5 (citing to Ammex, Inc. v. United States, __
Court No. 05-00542 Page 8
CIT __, 341 F. Supp.2d 1308, 1311 (2004)). Thus, the ITC argues,
“the decisions subject to this appeal are only the [ITC’s] and
Customs’ denial of [SKF’s] requests to be declared eligible for
Byrd distributions relating to the Japanese ball bearings order for
fiscal year 2005.” Id. at 5. The ITC further stresses that “at no
point in [the] administrative process did [SKF] even suggest that
the [ITC] or Customs had been mistaken in interpreting their
requests as relating only to the Japanese ball bearings order.”
Id. at 6. Additionally, the ITC argues that SKF had previously
made it clear that it was its intent to challenge the actions of
Customs and the ITC in denying its request under the Japanese ball
bearing order, and that SKF only challenged the actions of the
Defendants in connection with the disbursement of funds collected
under an antidumping order on ball bearings from Japan. See id. at
6 (citing to Complaint at ¶ 7). The ITC concludes by contending
that this Court’s opinion in SKF USA did not indicate that the ITC
or Customs “should go beyond the scope of their underlying
determinations and this appeal by making a new set of decisions as
to whether [SKF] was entitled to receive Byrd distributions under
any order than the order covering Japan.” Id. at 7.
3. Timken’s Contentions
Timken initially disagreed with the decision in SKF USA, in
which this Court declared that the Continued Dumping and Subsidy
Court No. 05-00542 Page 9
Offset Act of 2000 (“CDSOA”) violates the Equal Protection Clause.
See Timken Br. at 1-2. Though “Timken disagrees with the Court’s
conclusions and reserves its right to appeal, Timken believes the
determinations of the ITC and [Customs] are consistent with the
opinion of the Court[.]” Timken Br. at 3. Timken, however,
contends that Customs has made a ministerial error by certifying
SKF’s qualifying expenditures to 2.9699%, thereby entitling SKF to
receive $1,419,933.01 of the $47,810,802.17 available for
distribution. See id. at 3. Timken argues that Customs had
previously rounded the allocation percentage to the billionth
decimal place, and not the ten thousandth, as is indicated above.
See id. (citing to FY 2005 CDSOA Annual Disbursement Report).
Timken surmises that SKF’s “correct allocation percentage should be
2.969865553% and the distribution [SKF] would potentially receive
from the total available, $47,810,802.17, would be up to
$1,419,916.54.” Id.
Additionally, Timken contends that SKF’s comments on the
remand determinations are not responsive to the remand results and
should thus be rejected. See Timken’s Reb. at 2. Timken states
that an agency’s “determination ‘will be upheld as long as the
Court can reasonably discern how the agency arrived at the
decision’ as long as it is ‘in accordance with law.’” Id. at 2;
(citing to Cathedral Candle Co. v. United States, 27 CIT __, __,
Court No. 05-00542 Page 10
285 F. Supp.2d 1371, 1375 (2003)).
Timken contends that both Customs and the ITC correctly
limited their determinations on remand to the question of SKF
eligibility for CDSOA distribution with respect to the antidumping
order on ball bearings from Japan alone, as SKF only sought
eligibility for and distribution to the antidumping duty order on
ball bearings from Japan. Id. at 2-3. Timken asserts that in the
case at bar judicial review of agency determinations must be based
on all the documents before the agency at the time of
determination. See id. at 3. Timken further asserts that the full
record of documents used by both Customs and the ITC indicates that
SKF “referred only to the Japan ball bearings order in requesting
agency action.” Id. at 4. As such, Timken assert that both the
ITC and Customs remand determinations were consistent with this
Court’s remand instructions from SKF USA, 30 CIT at __, 451 F.
Supp. 2d at 1367. See id. at 6.
Timken further argues that even if SKF’s “new certification
covering seven additional orders and qualifying expenditures of
$8,164,858,000 could have been considered on remand [Customs] would
not have been required to accept certifications filed over a year
too late on September 28, 2006, contrary to the statutory and
regulatory deadlines governing FY2005 certifications and
distributions.” Id. at 8. Timken stresses that “in order to
Court No. 05-00542 Page 11
receive CDSOA distributions for FY2005, Custom’s regulations
required eligible affected domestic producers to file
certifications . . . by August 1, 2005.” Id. at 9 (citing to 19
C.F.R. § 159.63(a); 70 Fed. Reg. 31,566 (June 1, 2005)). Timken
concludes by contending that in SKF USA this Court stated that it
entrusted Customs to determine how SKF receives its pro rata share
of the FY2005 CDSOA disbursements, and Customs’ action since the
decision have complied with this Court’s instructions. See id. at
15 (citing to SKF USA, ___ CIT at __, 451 F. Supp. 2d at 1366).
4. Customs’ Contentions
Customs begins its contentions by agreeing with Timken’s
argument that SKF’s CDSOA distribution was miscalculated through a
ministerial error. See Customs’ Reb. at 3. Customs asserts that
it initially erred in calculating the allotted SKF distribution at
2.9699%, as opposed to the proper 2.969865553% allocation. See id.
Accordingly, Customs requests that this Court “grant a remand to
Customs for the limited purpose of correcting a ministerial error
in its calculation of the CDSOA distribution SKF will be entitled
to pursuant to [SKF USA], if [SKF USA] remains the final Court
decision after all appeals have been exhausted.” See id. at 4.
Despite the above request for recalculation, Customs asserts
that both Customs and the ITC complied with SKF USA when they
issued their remand results. See id. Customs argues that when
Court No. 05-00542 Page 12
reviewing whether Customs’ or the ITC’s interpretation and
application of the CDSOA are in accordance with law, courts apply
the standard of review set forth in the APA. See id. at 6.
Customs further argues that in the APA context:
an action must meet two requirements to be “final”
pursuant to 5 U.S.C. § 704: (1) “ the action must mark
the ‘consummation’ of the agency’s decision making
process,” Bennet v. Spear, 520 U.S. 154, 177-78 (1997);
and (2) “the action must be one by which ‘rights or
obligations have been determined,’ or from which ‘legal
consequences will flow.’” Id. at 178. Because SKF only
challenged the ITC’s administrative determination not to
add SKF to the ADP list with respect to the ball bearings
from Japan antidumping investigation, the ITC has not
taken any administrative action with respect to other
antidumping or countervailing duty orders. Thus, there
is no other action which is subject to review because
neither of the requirements established in the case law
are met. See Lujan v. National Wildlife Federation, 497
U.S. 871, 882 (1990).
Customs’ Reb. at 7-8. Customs asserts that in the case at bar
there can be no “consummation” of the decision making process as
Customs has not yet made a decision upon whether to apply its
overpayment provision and as there is no decision for this Court to
review. See id. at 14. Customs asserts that a decision not to
take enforcement action is immune from judicial review pursuant to
5 U.S.C. § 701(a)(2). See id.
Customs further contends that it complied with this Court’s
order in SKF USA, and did not err in neglecting to consider SKF’s
September 28, 2006 submission to the ITC in determining SKF’s
entitlement to CDSOA distributions as SKF was untimely in filing
Court No. 05-00542 Page 13
the materials. See id. at 9-11. Customs asserts that “all CDSOA
certifications were due to be filed within 60 days of Customs’ July
3, 2005 publication of Distribution of Continued Dumping and
Subsidy Offset to Affected Domestic Producers, 67 Fed. Reg.
44,722.” Id. at 10-11. Customs then further asserts that if SKF
believed its certification contained incorrect figures, it had ten
days after Customs issued its July 15, 2005 notification denying
SKF certification within which to correct that certification. Id.
at 11 (citing to 19 C.F.R. § 159.63(c)). Based on all the above
arguments, Customs concludes that this Court should maintain its
ruling entrusting Customs “to determine how to ensure SKF receives
its pro rata share of the 2005 CDSOA disbursements as it deems fit,
understanding that Customs has regulatory authority at its disposal
to redistribute the disbursed funds, such as 19 C.F.R. §
159.64(b)(3).” Id. at 15 (citing to SKF USA, ___ CIT at __, 451 F.
Supp. 2d at 1366).
B. Analysis
1. Customs’ Calculation Error in Calculating the
Offset Distribution Amount Is De Minimis in Nature
and Thus Does Not Warrant a Remand.
As stated supra, Timken contends that SKF’s “correct
allocation percentage should be 2.969865553% and the distribution
[SKF] would potentially receive from the total available,
$47,810,802.17, would be up to $1,419,916.54.” Timken’s Comm. at
Court No. 05-00542 Page 14
3. The Government has confirmed that “Customs’ remand
determination contains a ministerial error in the calculation of
the CDSOA distribution SKF would be entitled to receive pursuant to
[SKF USA].” Customs’ Reb. at 3. The Government further requests
that “the Court grant a remand to Customs for the limited purpose
of correcting a ministerial error in its calculation of the CDSOA
distribution SKF will be entitled to pursuant to [SKF USA.]” Id.
at 4.
The remand, however, if granted, would lead to an adjustment
of a mere $16.47. Despite the Government’s admission of an
administrative error on the part of Customs, this Court finds that
the error was de minimis in nature and that a remand would be a
waste of time, effort, and taxpayers’ funds.
2. Customs’ and the ITC’s Remand Determinations Fully
Comply with SKF USA.
In an APA action, such as the case at bar, courts “shall
compel agency action” which is “unlawfully withheld or unreasonably
delayed.” 5 U.S.C. § 706(1)(2000). “[A]gency action includes the
whole or part of an agency rule, order, license, sanction, relief,
or the equivalent or denial thereof, or failure to act.” 5 U.S.C.
551(13)(2000). This Court only possesses jurisdiction to entertain
challenges to administrative actions. See 28 U.S.C. 1581(i)(2000).
In SKF USA, this Court remanded the present matter “to the ITC and
Court No. 05-00542 Page 15
Customs to review their decisions denying SKF CDSOA
disbursements[.]” SKF USA, __ CIT at __, 451 F. Supp. 2d at 1367.
In SKF USA, SKF requested that this Court “issue a permanent
injunction enjoining the Government from making any present or
future disbursements pursuant to the CDSOA with respect to duties
collected from all antidumping orders covering AFBs5, or in the
alternative, just ball bearings from Japan.” SKF USA, __ CIT at
__, 451 F. Supp. 2d at 1363 (emphasis added). As such, SKF further
requested that this Court “order Customs to require repayment of
all CDSOA funds disbursed with respect to all antidumping orders
covering AFBs, or in the alternative, just ball bearings from
Japan[.]” Id. (emphasis added).
Furthermore, in a letter dated July 13, 2005, SKF’s attorneys
requested that Customs distribute CDSOA offsets for Fiscal Year
2005 for offsets “resulting from the antidumping order on ball
bearings from Japan.” Letter to the Assistant Commissioner of
Customs (July 13, 2005). SKF’s Counsel therein attached a
Continued Dumping and Subsidy Offset Certification, which clearly
listed the case name as “Ball Bearings from Japan.” Id. SKF’s
Complaint of October 3, 2005 makes specific references to
5
AFBs are defined as “antifriction bearings, other than
tapered roller bearings and parts thereof” in SKF USA, __ CIT at
__, 451 F. Supp. 2d at 1357.
Court No. 05-00542 Page 16
disbursements “pursuant to the CDSOA of assessed fiscal year 2005
funds pertaining to ball bearings from Japan.” Complaint at p. 16.
SKF additionally raises its “request for disbursement of funds and
Customs’ disbursement of funds collected under the antidumping
order on ball bearings from Japan before December 1, 2005[.]”
Complaint ¶ 15. These assertions were later put forth in SKF’s
amended complaint of January 3, 2006, where SKF states that it
challenges the actions of both the ITC and Customs, pursuant to 19
U.S.C. 1675c, “in connection with the disbursements of funds
collected under an antidumping order on ball bearings from Japan.”
Amended Complaint, ¶ 7. It is thereby clear to this Court that SKF
was initially seeking repayment of all CDSOA funds disbursed with
respect to all antidumping orders covering AFBs, or in the
alternative, just ball bearings from Japan, and only from Japan.
As a result of this Court’s decision in SKF USA, both the ITC
and Customs filed their remand determinations. See Customs’
Reconsideration; ITC Remand Determination. As SKF only challenged
the ITC’s decision not to add SKF to the list of affected domestic
producers list with respect to the ball bearings from Japan
antidumping investigation, the ITC did not take any administrative
action with respect to other antidumping or countervailing duty
orders. See ITC Remand Determination. As such, Customs’ remand
determination dealt solely with the antidumping duty order on ball
Court No. 05-00542 Page 17
bearings from Japan as well. See Customs’ Reconsideration. By
solely referencing the antidumping duty order on ball bearings from
Japan both the ITC and Customs complied with this Court’s decision
in SKF USA.
As stated supra, under 28 U.S.C. § 1581(i) this Court only
possesses jurisdiction to entertain challenges to administrative
actions. This Court remanded “this matter to the ITC and Customs
to review their decision denying SKF CDSOA disbursements in
accordance with” the SKF USA opinion. SKF USA, __ CIT at __, 451
F. Supp. 2d at 1367 (emphasis added). Both the ITC and Customs
properly kept their remands within the scope of “the antidumping
order on ball bearings from Japan.” Letter to the Assistant
Commissioner of Customs (July 13, 2005). Furthermore, this Court
has stated that it “entrusts Customs to determine how to ensure SKF
receives its pro rata share of the 2005 CDSOA disbursements as it
deems fit[.]” SKF USA, __ CIT at __, 451 F. Supp. 2d at 1366.
Nothing in Customs’ remand determination makes the Court regret
such a lawful entrustment. See SKF USA, __ CIT at __, 451 F. Supp.
2d at 1366 (citing to 19 C.F.R. § 159.64(b)(3)).
Court No. 05-00542 Page 18
3. Customs Did Not Err in Refusing to Consider SKF’s
filings of September 28, 2006.
As stated supra, SKF claims that Customs erred in refusing to
consider an amended filing made on September 28, 2006 for
disbursements under the antidumping order against ball bearing from
Japan, which also included certifications for seven other
countries. Pl.’s Comm. at 6.
Pursuant to statute, Customs must publish a notice of intent
to distribute (“Notice of Intent to Distribute”) at least 30 days
before making CDSOA distributions. See 19 U.S.C. §
1675c(d)(2)(2000). After publication of the Notice of Intent to
Distribute, Customs’ regulations state that claimants, such as SKF,
have 60 days in which to file certification to obtain a CDSOA
distribution. See 19 C.F.R. § 159.63(a). The timely filing of
certifications is important as the “distribution of funds from
duties assessed each fiscal year must be distributed not later than
60 days after the end of that fiscal year.” Cathedral Candle Co.
V. United States International Trade Comm’n, 400 F.3d 1352, 1358
(quoting 19 U.S.C. § 1675c(c)).
As per the above analysis, CDSOA certifications in the case at
bar were due to be filed within 60 days of Customs’ July 3, 2005
publication of Distribution of Continued Dumping and Subsidy Offset
to Affected Domestic Producers, 67 Fed. Reg. 44,722. As September
Court No. 05-00542 Page 19
28, 2006 is more than 60 days after July 3, 2005, SKF failed to
timely file its amended certification, and Customs thereby did not
err in its refusal to consider said documentation.
C. Conclusion
Upon review of the record and the arguments presented by the
parties on remand, the Remand Determinations are not arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance
with law.
/s/ Nicholas Tsoucalas
NICHOLAS TSOUCALAS
SENIOR JUDGE
Dated: July 26, 2007
New York, New York
UNITED STATES COURT OF INTERNATIONAL TRADE
BEFORE: SENIOR JUDGE NICHOLAS TSOUCALAS
________________________________________
:
SKF USA INC., :
:
Plaintiff, :
:
v. :
:
UNITED STATES OF AMERICA, :
UNITED STATES CUSTOMS AND BORDER :
PROTECTION, ROBERT C. BONNER :
(COMMISSIONER, UNITED STATES CUSTOMS : Court No. 05-00542
AND BORDER PROTECTION), UNITED STATES :
INTERNATIONAL TRADE COMMISSION, and :
STEPHEN KOPLAN (CHAIRMAN, UNITED :
STATES INTERNATIONAL TRADE COMMISSION), :
:
Defendants, :
:
and :
:
TIMKEN US CORPORATION, :
:
Defendant-Intervenor. :
________________________________________:
JUDGMENT
This Court, having received and reviewed the Bureau of Customs
and Border Protection’s (“Customs”) Reconsideration of the Fiscal
Year 2005 CDSOA Certification of SKF USA, Inc. (“Customs’
Reconsideration”) filed on December 8, 2006, the remand
determination filed by the United States International Trade
Commission (“ITC”) on December 11, 2006 (“ITC Remand
Determination”)(Customs’ Reconsideration and the ITC Remand
Determination, collectively, the “Remand Determinations”), comments
and rebuttal comments of SKF USA Inc., Timken US Corporation,
Customs and the ITC, and all other papers filed herein, holds that
both Customs and the ITC duly complied with this Court’s remand
order in SKF USA Inc. v. United States, ___ CIT ___, 451 F. Supp.
2d 1355 (2006), and it is hereby
ORDERED that the Remand Determinations are affirmed in their
entirety; and it is further
ORDERED that since all other issues have been decided, this
case is dismissed.
/s/ Nicholas Tsoucalas
NICHOLAS TSOUCALAS
SENIOR JUDGE
Dated: July 26, 2007
New York, New York