TKS Asks Court to Stop New Dumping Review

By: Jim Rosenberg The U.S. Department of Commerce said Tuesday that it will start a changed-circumstances review of its 2002 revocation of the antidumping duty order applied to Japanese press maker Tokyo Kikai Seisakusho Ltd.

In response, TKS filed a complaint Wednesday with the U.S. Court of International Trade, arguing that the Commerce Department "has no legal authority" for such a review of large newspaper press sales by TKS, because no antidumping duty is in effect with respect to the presses. It asks the court to permanently enjoin the department from pursuing the review.

TKS called the allegations in the department's notice the same that Goss International "brought to the attention of Commerce in July 2004. It added that the notice failed to explain why the department "waited until now to act."

Last summer Goss asked the department to re-open consideration of dumping by TKS (E&P Online, July 14, 2004). A Goss spokesman had no immediate comment on the TKS complaint.

That complaint alleges that the Commerce Department's regulations allow it to conduct a changed-circumstances review only "if a producer or exporter is currently subject to a relevant antidumping order." Because the order was revoked, says TKS, no large newspaper press producer or exporter is subject to the duty order. One month after revocation with respect to its own business, says TKS, the order was revoked for "all imports of the merchandise ... because the petitioner was no longer a domestic producer and therefore had no interest in continuing the order."

The antidumping duty order on two German and two Japanese press makers dates from September 1996. The Commerce Dept. revoked the order with respect to TKS in January of 2002 upon finding no dumping during the periods covered by three consecutive administrative reviews.

Upon filing its complaint with the trade court, TKS said the Commerce Department action is "based upon statements in an opinion that was issued nearly one year ago in a lawsuit that Goss International filed against TKS suggesting that TKS provided misleading information to Commerce in the antidumping proceeding." (See 'E&P,' April 1, 2004; Dec. 15, 2003.)

A U.S. district court jury awarded millions in damages in Goss' federal antidumping lawsuit against TKS, which appealed the case. The 8th U.S. Circuit Court of Appeals heard oral arguments two months ago. TKS attorney Peter J. Toren, of the New York firm Sidley Austin Brown & Wood, said he is optimistic about the outcome but has no idea when the appeals court may announce its decision.

Meanwhile, added Toren, TKS agreed that in the event the appeals court affirms the district court's damages, it will wait two weeks before suing Goss in Japan under "clawback" provisions of legislation responding to the United States' failure to repeal the law under which Goss brought suit. The World Trade Organization ruled that the law, the Anti-dumping Act of 1916, contravened U.S. trade treaty obligations. The European Commission permitted similar retailiatory/compensatory legislation.

MAN Roland, Koenig & Bauer AG, and Mitsubishi Heavy Industries reached separate undisclosed settlements with Goss before the trial began.

A Commerce Department decision several years ago to undertake a changed-circumstances review was prompted by the two German press makers, which cited the closure of Goss' plant in Cedar Rapids, Iowa. Soon after, Goss withdrew from participating in administrative review of press sales. Press maker KBA also argued that since the Goss plant closed, KBA's North American subsidiary accounted for "substantially all" U.S. production of large newspaper presses, leaving Goss no interest in continuing the anti-dumping order.

Goss argued that it still did some manufacturing in the United States, Its president, Richard Sutis, later acknowledged that upon complete shutdown in Cedar Rapids, "Goss will lose its status as a domestic producer and be forced to withdraw from the Commerce case."