780 F.Supp.2d 1357 (CIT 2011), 06-00250, JTEKT Corp. v. United States

Docket Nº:Court 06-00250.
Citation:780 F.Supp.2d 1357
Opinion Judge:STANCEU, Judge:
Party Name:JTEKT CORPORATION and Koyo Corporation of U.S.A., Plaintiffs, v. UNITED STATES, Defendant, and The Timken Company, Defendant-Intervenor. Slip Op. 11-92.
Attorney:Sidley Austin, LLP (Neil R. Ellis and Jill Caiazzo), Washington, District of Columbia, for plaintiffs JTEKT Corporation and Koyo Corporation of U.S.A. Baker & McKenzie, LLP (Washington, District of Columbia and Chicago, Illinois) (Kevin M. O'Brien, Kevin J. Sullivan, Diane A. MacDonald, Christine...
Case Date:July 29, 2011
Court:Court of International Trade
 
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Page 1357

780 F.Supp.2d 1357 (CIT 2011)

JTEKT CORPORATION and Koyo Corporation of U.S.A., Plaintiffs,

v.

UNITED STATES, Defendant,

and

The Timken Company, Defendant-Intervenor.

Slip Op. 11-92.

Court No. 06-00250.

United States Court of International Trade.

July 29, 2011

Page 1358

[Copyrighted Material Omitted]

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Sidley Austin, LLP (Neil R. Ellis and Jill Caiazzo), Washington, District of Columbia, for plaintiffs JTEKT Corporation and Koyo Corporation of U.S.A.

Baker & McKenzie, LLP (Washington, District of Columbia and Chicago, Illinois) (Kevin M. O'Brien, Kevin J. Sullivan, Diane A. MacDonald, Christine M. Streatfeild, and Sonal Majmudar) for plaintiffs FYH Bearing Units USA, Inc. and Nippon Pillow Block Company Ltd.

Crowell & Moring, LLP (Matthew P. Jaffe, Alexander H. Schaefer, Washington, District of Columbia, Nicole M. Jenkins, and Robert A. Lipstein, Washington, District of Columbia) for plaintiffs NSK Corporation, NSK Ltd., and NSK Precision America, Inc.

Baker & McKenzie, LLP (Washington, District of Columbia and Chicago, Illinois) (Kevin M. O'Brien, Christine Streatfeild, and Diane A. MacDonald) for plaintiffs American NTN Bearing Manufacturing Corp., NTN Bearing Corporation of America, NTN Bower Corporation, NTN Corporation, NTN Driveshaft, Inc., and NTN-BCA Corporation.

O'Melveny & Myers, LLP (Greyson L. Bryan, Los Angeles, California, and Nausheen Hassan, Washington, District of Columbia) for plaintiffs Nachi Technology, Inc., Nachi-Fujikoshi Corporation, and Nachi America, Inc.

Tony West, Assistant Attorney General, Jeanne E. Davidson, Director, Patricia M. McCarthy, Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, District of Columbia, (Claudia Burke); Jennifer I. Johnson, Hardeep Josan, Natasha Robinson, Sapna Sharma, Mykhaylo Gryzlov, Jonathan Zielinksi, and Deborah R. King, Office of Chief Counsel for Import Administration, United States Department of Commerce, of counsel, for defendant.

Stewart and Stewart (Geert M. De Prest, Terence P. Stewart, William A. Fennell, and Lane S. Hurewitz), Washington, District of Columbia, for plaintiff and defendant-intervenor The Timken Company.

OPINION AND ORDER

STANCEU, Judge:

Before the court is the redetermination (" Remand Redetermination" ) issued by the United States Department of Commerce (" Commerce," or the " Department" ) pursuant to the court's remand order in JTEKT Corp. v. United States, 33 CIT __, 675 F.Supp.2d 1206 (2009) (" JTEKT " ). Final Results of Redetermination (" Remand Redetermination" ). In JTEKT, the court ordered reconsideration of certain decisions in the Department's published determination (" Final Results" ) concluding the sixteenth administrative reviews (" AFBs 16" ) of antidumping duty orders on ball bearings and parts thereof (" subject merchandise" ) from France, Germany, Italy, Japan, and the United Kingdom. See

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JTEKT, 33 CIT at __, 675 F.Supp.2d at 1263-64; Ball Bearings & Parts Thereof from France, Germany, Italy, Japan, & the United Kingdom: Final Results of Antidumping Duty Admin. Reviews, 71 Fed.Reg. 40,064 (July 14, 2006) (" Final Results " ). The reviews applied to entries of subject merchandise made during the period of May 1, 2004 through April 30, 2005 (" period of review" or " POR" ). Final Results, 71 Fed.Reg. at 40,064. This action concerns the review of the antidumping order pertaining to subject merchandise from Japan, in which Commerce assigned weighted-average dumping margins to Japanese respondents JTEKT Corporation (" JTEKT" ), Nachi-Fujikoshi Corporation (" Nachi" ), Nippon Pillow Block Company, Ltd. (" NPB" ), NSK Ltd. (" NSK" ), and NTN Corporation (" NTN" ), all of which are plaintiffs in this case. Id. at 40,066. Because the Remand Redetermination complies only in part with the remand order in JTEKT and with applicable law, the court affirms the Remand Redetermination in part and issues a second remand order.

In the Remand Redetermination, Commerce addressed the five issues the court identified in its remand order in JTEKT, 33 CIT at __, 675 F.Supp.2d at 1263-64. Remand Redetermination 1. On three of those issues, Commerce did not change its positions but provided additional explanation. Those issues arose from NPB's proposal during the review to expand the choice of months for sampled transactions, NTN's proposal to incorporate additional bearing design types in the Department's model match methodology, and the claim of petitioner The Timken Company (" Timken" ), a plaintiff and defendant-intervenor in this consolidated action, that Commerce should have used U.S. interest rates, not Japanese interest rates, to calculate a portion of certain respondents' inventory carrying costs. Id. On the remaining two issues, Commerce made changes to the Final Results in response to the court's remand order. Id. at 26-31. Commerce redetermined the weighted-average antidumping duty margin for NTN after recalculating NTN's freight expense to base the expense on rate rather than value, and it redetermined the margin for Nachi upon limiting its previous application of facts otherwise available and adverse inferences to instances of errors in certain reporting occurring during the review. Id.

Challenging the Remand Redetermination are NPB and NTN. Pls. Nippon Pillow Block Co. Ltd. and FYH Bearing Units USA, Inc.'s Comments on the Final Results of Redetermination (" NPB Comments" ); Comments of NTN Corp., NTN Bearing Corp. of America, American NTN Bearing Mfg. Corp., NTN-BCA Corp., NTN-Bower Corp., and NTN Driveshaft, Inc. on Final Results of Redetermination (" NTN Comments" ).

Also before the court is NTN's motion for a stay pending further administrative action on, or alternatively for further briefing on, the issue of whether or not it was lawful for Commerce to apply its " zeroing" procedure in the calculation of a weighted-average dumping margin, under which Commerce assigned to U.S. sales made above normal value a dumping margin of zero, instead of a negative margin, when calculating weighted-average dumping margins. Pl.'s Mot. to Stay Further Proceedings Pending the Finality of New Antidumping Margin Methodology or, in the Alternative, Mot. to Allow Further Briefing (" NTN Mot. to Stay" ). The court construes NTN's motion as a motion for reconsideration of the court's decision in JTEKT affirming the Department's use of the zeroing procedure in the Final Results. Defendant and defendant-intervenor oppose NTN's motion. Def.'s Opp'n to Mot. to Stay; The Timken Co.'s Opp'n to NTN's Mot. for Stay, or, Alternatively,

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Further Briefing. NTN filed a motion to reply to defendant's and defendant-intervenor's opposition. Pl.'s Unopposed Mot. for Leave to File a Reply to Def.'s Opp'n to the Mot. to Stay (" NTN Mot. to Reply" ).

The court affirms the decisions made in the Remand Redetermination to reject NPB's proposal to expand the choice of months for sampled transactions, to use U.S. rather than Japanese interest rates in calculating the inventory carrying costs, to recalculate NTN's freight expenses based on weight rather than value, and to limit the application of facts otherwise available and adverse inferences to instances in which Nachi made errors in reporting. The court remands the Remand Redetermination for reconsideration of the Department's decisions to reject NTN's proposal on additional bearing design types and to apply zeroing in determining the margins for JTEKT, Nachi, NPB, and NTN. Due to its ordered reconsideration of the zeroing decision, the court declines to order a stay or additional briefing on that issue.

I. BACKGROUND

In JTEKT, the court remanded the Final Results, directing Commerce to address the five issues previously identified. JTEKT, 33 at CIT __, 675 F.Supp.2d at 1263-64. The court's opinion and order associated with the remand provides detailed background information. See id. at __, 675 F.Supp.2d at 1213-14. Commerce issued a draft version of the Remand Redetermination (" Draft Remand Results" ) on March 22, 2010, upon which NPB, NTN, and Timken commented. Remand Redetermination 2. Commerce submitted the Remand Redetermination to the court on May 17, 2010.

On January 28, 2011, NTN filed its motion for a stay pending further administrative action on, or for further briefing on, the zeroing issue, which defendant and defendant-intervenor oppose. NTN Mot. to Stay; Def.'s Opp'n to Mot. to Stay; The Timken Co.'s Opp'n to NTN's Mot. for Stay, or, Alternatively, Further Briefing. On February 18, 2011, NTN filed its motion for leave to reply to Timken's and defendant's opposition to its motion to stay or for further briefing. NTN Mot. to Reply.

II. DISCUSSION

The court will affirm the Remand Redetermination if it complies with the remand order, rests on findings supported by substantial record evidence, and is otherwise in accordance with law. See Tariff Act of 1930 (" Tariff Act" or the " Act" ), § 516A(b)(1)(B)(i), 19 U.S.C. § 1516a(b)(1)(B)(i) (2006); Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938) (substantial evidence is " such relevant evidence as a reasonable mind might accept as adequate to support a conclusion" ); JTEKT, 33 CIT at __, 675 F.Supp.2d at 1263-64.

A. Challenges to the Application of the Department's Zeroing Methodology

Commerce applied its " zeroing" methodology in AFBs 16, under which it assigned to U.S. sales made above normal value a dumping margin of zero, instead of a negative margin, when calculating weighted-average dumping margins. Issues & Decision Mem. for the Antidumping Duty Admin. Reviews of Ball Bearings & Parts Thereof from France, Germany,...

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