UPDATE: Press-Dumping Decision Returns to Trade Court

By: Jim Rosenberg Tokyo Kikai Seisakusho Ltd. and TKS (U.S.A.) filed suit this week against the U.S. Department of Commerce in the U.S. Court of International Trade, where they challenge the final determination of the department's reconsideration of the sunset review of antidumping duties levied on TKS.

Last month, the department determined that antidumping duties on large TKS presses sold in this country should be restored, pending an appropriate finding by the U.S. International Trade Commission (E&P Online, Nov. 20).

The Japanese press maker and its U.S. subsidiary seek a declaratory judgment that the Commerce Department had no authority to reconsider the sunset review, that the department's final determination be vacated, and that the department be permanently barred from reconsidering the original review.

That Commerce Department's latest determination was made possible only after a federal appeals court reversed a ruling last year by the Court of International Trade, which said the department had no authority to reopen the sunset review of the originally imposed antidumping duties.

TKS argues that the department's decision to reopen the review "is unsupported by substantial evidence and is contrary to law" because such review requires an existing antidumping order and that the department had revoked that order when Goss -- the only domestic manufacturer in the matter - ended production in this country and withdrew its participation in the original sunset review.

The complaint goes on to say that the Commerce Department "refused to determine" if there had been "any causal link" between Goss' withdrawal and TKS's alleged misconduct, and instead "referred the issue to the International Trade Commission.

Apparently referring to information that, after its discovery in the course of Goss' separate antidumping lawsuit against TKS, formed the basis of the request for a changed-circumstances review by the Commerce Department, TKS adds: "It is not the responsibility of the Commission to determine whether the alleged submission of false information to another agency affected the outcome of a proceeding that was conducted by that agency."

Evidence on the record, says TKS, "conclusively establishes that there is no causal relationship" between TKS's alleged misconduct and the decision of then-Goss Graphic Systems to close its U.S. plant and withdraw from the review.

In another count, TKS argues that the department's finding that Goss could participate in reconsideration of the sunset review ran counter to the evidence and law. The department ended the original sunset review, says TKS, because it found that Goss' "withdrawal from participation constituted a failure to respond to the notice of initiation of the review" - a finding Goss did not appeal. The failure-to-respond decision "is final and binding on all parties," says TKS.

Last, TKS says that after Goss closed what was then its only U.S. plant for relevant products, the Commerce Department erred in recognizing Goss as a domestic producer during the sunset review period.