NTN Corp. v. United States, 121710 USCIT, 10-00286

Docket Nº:10-00286
Opinion Judge:Timothy C. Stanceu, Judge
Party Name:NTN CORPORATION, et al., Plaintiffs, v. UNITED STATES, Defendant, and JTEKT CORPORATION and KOYO CORPORATION OF U.S.A., Plaintiff-Intervenors, and THE TIMKEN COMPANY, Defendant-Intervenor. Slip Op. 10-136
Attorney:Baker & McKenzie LLP (Donald J. Unger, Kevin M. O'Brien, Kevin J. Sullivan, and Diane A. MacDonald) for plaintiffs, NTN Corporation, NTN Bearing Corporation of America, NTN-Bower Corporation, American NTN Bearing Manufacturing Corporation, NTN-BCA Corporation, and NTN Driveshaft, Inc. Sidley Aust...
Judge Panel:Before: Timothy C. Stanceu, Judge
Case Date:December 17, 2010
Court:Court of International Trade
 
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NTN CORPORATION, et al., Plaintiffs,

and

JTEKT CORPORATION and KOYO CORPORATION OF U.S.A., Plaintiff-Intervenors,

v.

UNITED STATES, Defendant,

and

THE TIMKEN COMPANY, Defendant-Intervenor.

No. 10-00286

Slip Op. 10-136

United States Court of International Trade

December 17, 2010

Denying plaintiff-intervenors' motion for preliminary injunction without prejudice.

Baker & McKenzie LLP (Donald J. Unger, Kevin M. O'Brien, Kevin J. Sullivan, and Diane A. MacDonald) for plaintiffs, NTN Corporation, NTN Bearing Corporation of America, NTN-Bower Corporation, American NTN Bearing Manufacturing Corporation, NTN-BCA Corporation, and NTN Driveshaft, Inc.

Sidley Austin LLP (Neil R. Ellis, Jill Caiazzo, Lawrence R. Walders, and Rajib Pal) for plaintiff-intervenors JTEKT Corporation and Koyo Corporation of U.S.A.

Tony West, Assistant Attorney General, Jeanne E. Davidson, Director, Patricia M. McCarthy, Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice (L. Misha Preheim); Deborah R. King, Office of the 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) for defendant-intervenor.

Before: Timothy C. Stanceu, Judge

OPINION AND ORDER

Timothy C. Stanceu, Judge

Plaintiffs NTN Corporation, NTN Bearing Corporation of America, NTN-Bower Corporation, American NTN Bearing Manufacturing Corporation, NTN-BCA Corporation, and NTN Driveshaft, Inc. (collectively, "NTN") contest the final determination ("Final Results") issued by the International Trade Administration, U.S. Department of Commerce ("Commerce" or the "Department"), in periodic administrative reviews of antidumping duty orders on imports of ball bearings and parts thereof (the "subject merchandise") from France, Germany, Italy, Japan, and the United Kingdom for the period from May 1, 2008 through April 30, 2009 (the "period of review"). See Ball Bearings and Parts Thereof From France, Germany, Italy, Japan, and the United Kingdom: Final Results of Antidumping Duty Admin. Reviews, Final Results of Changed-Circumstances Review, and Revocation of an Order in Part, 75 Fed. Reg. 53, 661 (Sept. 1, 2010) ("Final Results"). NTN brings three claims. First, NTN challenges Commerce's use of its "zeroing" practice to calculate their dumping margin in the review of the order pertaining to Japan, under which practice Commerce deems sales of subject merchandise made in the United States at prices above normal value to have individual dumping margins of zero rather than negative margins. Compl. ¶¶ 19-26 ("Count One"). Second, NTN contests the application in the review of the Department's policy of issuing duty assessment and liquidation instructions to United States Customs and Border Protection ("Customs" or "CBP") fifteen days after the publication of the final results of the administrative reviews ("fifteen-day policy"). Compl. ¶¶ 27-32 ("Count Two"). Third, NTN asserts that Commerce "may have made other programming, clerical, or methodological errors, including errors that can only be determined by reference to the confidential administrative record." Compl. ¶ 34 (Count Three).

Before the court is the motion of plaintiff-intervenors JTEKT Corporation and Koyo Corporation of U.S.A. (collectively, "JTEKT") for a preliminary injunction to prohibit Customs from liquidating entries of subject merchandise produced by or on behalf of JTEKT that were made during the period of review. Mot. of Pl.-Intervenors JTEKT Corp. and Koyo Corp. of U.S.A. for Prelim. Inj. ("Pl.-Intervenors' Mot."). Defendant United States and defendant-intervenor the Timken Company ("Timken"), oppose plaintiff-intervenors' motion for a preliminary injunction. Def.'s Opp'n to JTEKT Corp. and Koyo Corp. of U.S.A.'s Mot. for Prelim. Inj. ("Def.'s Opp'n"); Timken's Opp'n to JTEKT's Mot. for Prelim. Inj ("Timken's Opp'n").

The court concludes that JTEKT has failed to demonstrate any likelihood that plaintiffs will succeed on the merits of the claims in Counts One and Three of the complaint. Plaintiff-intervenors have not intervened with respect to Count Two, which challenges the Department's fifteen-day policy. The court, therefore, must deny plaintiff-intervenors' motion for an injunction against liquidation.

I. Background

Pursuant to 19 U.S.C. § 1675(a) (2006), Commerce initiated the administrative reviews of the orders on the subject merchandise. Initiation of Antidumping & Countervailing Duty Admin. Reviews and Requests for Revocation in Part, 74 Fed. Reg. 30, 052 (June 24, 2009). On April 28, 2010, the Department published its preliminary results. Ball...

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