Skf Usa Inc. v. U.S.

Decision Date17 April 2009
Docket NumberCourt No. 06-00270.,Slip Op. 09-32.
Citation611 F.Supp.2d 1351
PartiesSKF USA INC., SKF France S.A., SKF Aerospace France S.A.S., SKF GmbH, and SKF Industrie S.p.A., Plaintiffs, v. UNITED STATES, Defendant, and The Timken Company, Defendant-Intervenor.
CourtU.S. Court of International Trade

Steptoe & Johnson LLP, Washington, DC (Herbert C. Shelley, Alice A. Kipel, and Susan R. Gihring) for plaintiffs.

Michael F. Hertz, Deputy Assistant Attorney General, Jeanne E. Davidson, Director, Patricia M. McCarthy, Assistant Director, Commercial Litigation Branch Civil Division, United States Department of Justice (Claudia Burke); Mykhaylo Gryzlov, Jennifer I. Johnson, and Sapna Sharma, Office of the Chief Counsel for Import Administration, United States Department of Commerce, of counsel, for defendant.

Stewart and Stewart, Washington, DC (Geert M. De Prest, Terence P. Stewart, William A. Fennell, and Lane S. Hurewitz) for defendant-intervenor.

OPINION

STANCEU, Judge.

Plaintiffs SKF USA Inc., SKF France S.A., SKF Aerospace France S.A.S., SKF GmbH, and SKF Industrie S.p.A. (collectively, "plaintiffs" or "SKF") contest the final results ("Final Results") that the United States Department of Commerce ("Commerce" or the "Department") issued in an administrative review of an antidumping duty order on ball bearings and parts thereof from France, Germany, Italy, Japan, and the United Kingdom. Plaintiffs contend that Commerce, pursuant to a practice known as "zeroing," unlawfully assigned them a weighted-average dumping margin that deemed the sales that plaintiffs made in the United States at prices above normal value to have individual dumping margins of "zero" rather than negative margins. Plaintiffs move under USCIT Rule 56.2 for judgment upon the agency record, requesting that the court remand the final results to Commerce with the directive to redetermine plaintiffs' weighted-average dumping margin without the use of zeroing. In addition, plaintiffs challenge the Department's policy of issuing liquidation instructions to United States Customs and Border Protection ("Customs" or "CBP") within fifteen days of the publication of the final results of an administrative review ("fifteen-day policy"), arguing that the antidumping statute requires Commerce to wait at least sixty days before issuing such instructions.

The court affirms the Final Results in the use of the zeroing methodology. The court rejects plaintiffs' argument that the antidumping statute requires Commerce to wait at least sixty days before issuing liquidation instructions to Customs to implement the results of an administrative review, but the court nevertheless concludes that the fifteen-day policy is unlawful on an alternate ground.

I. BACKGROUND

Commerce issued the Final Results pursuant to 19 U.S.C. § 1675(a) (2000) in the Department's administrative reviews of antidumping duty orders on ball bearings and parts thereof from France, Germany, Italy, Japan, and the United Kingdom for the period May 1, 2004 through April 30, 2005. See Ball Bearings and Parts Thereof from France, Germany, Italy, Japan, and the United Kingdom: Final Results of Antidumping Duty Admin. Reviews, 71 Fed.Reg. 40,064, 40,064 (July 14, 2006) ("Final Results"). Plaintiffs initially advanced three claims, including a claim challenging the "model-matching" methodology that Commerce applied in determining normal value. Compl. ¶¶ 4-15; Am. Compl. ¶¶ 6-7. At oral argument, upon plaintiffs' motion and in the absence of any objection by the opposing parties, the court allowed plaintiffs to withdraw their claim challenging the Department's modelmatching methodology. Tr. 5, Sept. 11, 2008. The court, therefore, addresses plaintiffs' two remaining claims.

Plaintiffs' first remaining claim is that Commerce violated the antidumping statute when, in calculating a weighted-average dumping margin, Commerce regarded the sales that plaintiffs made in the United States at prices above normal value to have dumping margins of "zero." See Pls.' Rule 56.2 Mot. for J. upon the Agency R. 2 ("Pls.' Mot."). Specifically, in calculating a weighted-average dumping margin for plaintiffs, Commerce compared the prices at which plaintiffs made individual sales of subject merchandise in the United States (the "export price" or "EP") to the normal value of the merchandise. In doing so, Commerce assigned a margin of zero, rather than a "negative" margin, to any sales in which the export price exceeded normal value and gave full mathematical effect to those sales for which the export price was less than normal value by assigning a "positive" margin. Issues and Decision Mem. for the Antidumping Duty Admin. Reviews of Ball Bearings and Parts Thereof from France, Germany, Italy, Japan, and the United Kingdom for the Period of Review May 1, 2004, through April 30, 2005, Comment 1, at 11-12 (July 14, 2006) ("Decision Mem."). SKF contested the application of the zeroing methodology during the administrative review, submitting briefing on the issue in response to the Department's preliminary results. Id., Comment 1, at 5-9. Commerce noted SKF's objections, defended the Department's position, and ultimately decided to continue to rely on its zeroing methodology. Id., Comment 1, at 5-9, 11-12; see Final Results, 71 Fed.Reg. at 40,065.

Plaintiffs sought the court's leave to amend their complaint to add the second remaining claim, which challenges the Department's policy of issuing liquidation instructions within fifteen days of the publication of the final results of an administrative review and the Department's actual issuance of those instructions in this administrative review. Mot. for Leave to File an Am. Summons and Am. Compl. 2; Pls.' Mot. 2; Br. in Supp. of SKF's Rule 56.2 Mot. for J. upon the Agency R. 2 ("Pls.' Br."). The court granted SKF's motion over defendant's objection that plaintiffs would lack standing to bring the claim they proposed to add to their complaint. SKF USA Inc. v. United States, 31 CIT ___, ___, 2007 WL 867308, *1 (Mar. 23, 2007) ("SKF I").

In announcing its fifteen-day policy in 2002, Commerce stated that it intended to issue liquidation instructions to Customs, pursuant to administrative reviews conducted under 19 U.S.C. § 1675(a)(1) and (a)(2), "within 15 days of publication of the final results of review in the Federal Register or any amendments thereto."1 Announcement Concerning Issuance of Liquidation Instructions Reflecting Results of Admin. Reviews, Aug. 9, 2002, http://ia. ita.doc.gov/download/liquidation-announcement.html (updated Aug. 14, 2002) (last visited Apr. 15, 2009) ("Announcement"); see Pls.' Br., Attach. 11. Thereafter, in the notice setting forth the Final Results, published on July 14, 2006, Commerce announced that it "intend[ed] to issue appropriate assessment instructions directly to CBP within 15 days of publication of these final results of reviews." Final Results, 71 Fed.Reg. at 40,066. Commerce issued liquidation instructions to Customs on July 31, 2006 for Italy and on August 1, 2006 for France and Germany, the seventeenth and eighteenth days after publication of the Final Results. Def.'s Resp. in Opp'n to Pls.' Mot. for J. upon the Agency R. 10 ("Def.'s Resp."); Letter from Att'y, Office of the Chief Counsel for Import Admin., U.S. Dep't of Commerce, to Clerk of the Ct., U.S.Ct. of Int'l Trade (Sept. 16, 2008) (submitting the liquidation instructions issued for France, Germany, and Italy by Commerce to Customs) ("Dep't's Liquidation Instructions"). Customs forwarded those instructions to its port directors on August 10, 2006. Pls.' Br., Attachs. 12-14 (setting forth the liquidation instructions issued by Customs to its port directors for France, Germany, and Italy in attachments 12, 13, and 14, respectively) ("Customs' Liquidation Instructions").

In commencing this action on August 14, 2006, plaintiffs moved concurrently for a temporary restraining order ("TRO") and for a preliminary injunction to prevent Customs from liquidating entries of subject merchandise produced by or on behalf of plaintiffs that were made during the period of review, May 1, 2004 to April 30, 2005. SKF's Mot. for a Temporary Restraining Order; SKF's Mot. for a Prelim. Inj. to Enjoin Liquidation of Entries. On the date of the filing of the summons and complaint, the court granted plaintiffs' motion for a TRO prohibiting liquidation and, two days later, granted plaintiffs' motion for a preliminary injunction, to which defendant had consented. Order, Aug. 14, 2006; Order, Aug. 16, 2006. Under the preliminary injunction order, the liquidation of entries of plaintiffs' merchandise will remain enjoined during the pendency of this litigation, including all remands and appeals. Order 1, Aug. 16, 2006.

II. DISCUSSION

The court has jurisdiction under 28 U.S.C. § 1581(c) (2000) to adjudicate plaintiffs' claim challenging the use of zeroing in determining plaintiffs' weighted-average dumping margin. 28 U.S.C. § 1581(c). Pursuant to 28 U.S.C. § 1581(c), the court has jurisdiction to review actions commenced under 19 U.S.C. § 1516a (2000), including an action contesting the final results issued by Commerce under 19 U.S.C. § 1675(a). See id. The court will uphold the Department's determination unless it is unsupported by substantial evidence on the record or otherwise not in accordance with law. See 19 U.S.C. § 1516a(b)(1)(B)(i).

The court has subject matter jurisdiction under 28 U.S.C. § 1581(i) to hear plaintiffs' claim challenging the Department's fifteen-day policy. See 28 U.S.C. § 1581(i); SKF I, 31 CIT at ___, 2007 WL 867308, **4-5 (citing Shinyei Corp. of Am. v. United States, 355 F.3d 1297, 1304-05 (Fed.Cir.2004), and Consol. Bearings Co. v. United States, 348 F.3d 997, 1002-03 (Fed.Cir.2003)).2 The court reviews the fifteen-day policy as provided in 5 U.S.C. § 706 (2000). 28 U.S.C. § 2640(e) (2000). Under 5 U.S.C. § 706, the court must "hold unlawful and set aside agency action...

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