Slip Op. 14-64
UNITED STATES COURT OF INTERNATIONAL TRADE
JTEKT CORPORATION, et al.,
Plaintiffs,
v.
UNITED STATES, Before: Timothy C. Stanceu, Judge Defendant, Consol. Court No. 08-00324 and
THE TIMKEN COMPANY,
Defendant-intervenor.
OPINION
[Denying as moot plaintiffs’ motion to stay and affirming the final determination issued by the U.S. Department of Commerce in the eighteenth administrative reviews of antidumping duty orders on ball bearings and parts thereof from France, Germany, Italy, Japan, and the United Kingdom]
Dated: June 11, 2014
Neil R. Ellis, Sidley Austin LLP, of Washington, DC, argued for plaintiffs JTEKT Corp. and Koyo Corp. of U.S.A. With him on the brief was Dave M. Wharwood.
Diane A. MacDonald, Baker & McKenzie, LLP, of Chicago, IL, argued for plaintiffs American NTN Bearing Manufacturing Corp., NTN Bearing Corp. of America, NTN-Bower Corp., NTN Corp., NTN Driveshaft, Inc., and NTN-BCA Corp. With her on the brief was Kevin M. O’Brien.
Daniel J. Cannistra, Crowell & Moring, LLP, of Washington, DC, for plaintiffs Aisin Seiki Co., Ltd. and Aisin Holdings America, Inc.
Loren Misha Preheim, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, argued for defendant United States. With her on the brief were Stuart F. Delery, Assistant Attorney General, Jeanne E. Davidson, Director, and Claudia Burke, Assistant Director. Of counsel on the brief were Shana Hofstetter and Consol. Court No. 08-00324 Page 2
Daniel J. Calhoun, Attorneys, Office of the Chief Counsel for Import Administration, U.S. Department of Commerce.
Geert M. De Prest, Stewart and Stewart, of Washington, DC, argued for defendant- intervenor the Timken Company. With him on the brief were Terence P. Stewart and Lane S. Hurewitz.
Stanceu, Judge: In this consolidated action, plaintiffs challenged various aspects of the
final determination (“Final Results”) issued by the U.S. Department of Commerce (“Commerce”
or the “Department”) to conclude the eighteenth administrative reviews of antidumping duty
orders (the “Orders”) on ball bearings and parts thereof (“subject merchandise”) from France,
Germany, Italy, Japan, and the United Kingdom. Am. Compl. ¶ 2 (Jan. 14, 2009), ECF No. 30;
Ball Bearings & Parts Thereof From France, Germany, Italy, Japan, & the United Kingdom:
Final Results of Antidumping Duty Admin. Reviews & Rescission of Reviews in Part, 73 Fed.
Reg. 52,823 (Sept. 11, 2008) (“Final Results”).
Before the court is the determination on remand (“Remand Redetermination”) that
Commerce submitted in response to the court’s opinion and order in JTEKT Corp. v. United
States, 35 CIT __, Slip. Op. 11-158 (Dec. 15, 2011) (“JTEKT III”). Final Results of
Determination Pursuant to Remand (Feb. 27, 2012), ECF No. 90 (“Remand Redetermination”).
Also before the court is plaintiffs’ motion to stay this case. Pls.’ Mot. to Extend Stay
(Aug. 9, 2013), ECF No. 104 (“Stay Mot.”). The court denies as moot the motion to stay and for
the reasons discussed herein enters a judgment affirming the Remand Redetermination.
I. BACKGROUND
JTEKT Corporation and Koyo Corporation of U.S.A. (collectively, “JTEKT”) brought an
action pursuant to Section 516A of the Tariff Act of 1930, 19 U.S.C. § 1516a, to contest certain
determinations made by Commerce in the Final Results of the eighteenth administrative reviews.
Am. Compl. ¶ 2. These reviews cover entries of subject merchandise made from May 1, 2006 Consol. Court No. 08-00324 Page 3
through April 30, 2007 (“period of review” or “POR”).1 Final Results, 73 Fed. Reg. at 52,823.
The court consolidated JTEKT’s challenge with other cases contesting the Final Results brought
by plaintiffs American NTN Bearing Manufacturing Corp., NTN Bearing Corp. of America,
NTN-Bower Corp., NTN Corp., NTN Driveshaft, Inc., and NTN-BCA Corp. (collectively,
“NTN”) and Aisin Seiki Company, Ltd. and Aisin Holdings America, Inc. (collectively,
“Aisin”).2 Order (Feb. 18, 2009), ECF No. 32 (consolidating cases). The Timken Company
(“Timken”) is the defendant-intervenor in the consolidated case. Order (Oct. 10, 2008), ECF
No. 20.
In JTEKT Corp. v. United States, 34 CIT __, 717 F. Supp. 2d 1322 (2010) (“JTEKT I”),
the court affirmed the Final Results. In JTEKT Corp. v. United States, 642 F.3d 1378 (Fed.
Cir. 2011) (“JTEKT II”), the U.S. Court of Appeals for the Federal Circuit (“Court of Appeals”)
affirmed in part, and vacated and remanded in part, the judgment issued in JTEKT I. The Court
of Appeals vacated and remanded the judgment concerning one issue, the court’s affirmance of
the Department’s decision to apply the “zeroing” methodology, described herein, in the Final
Results. Id. at 1385. In JTEKT III, 35 CIT at __, Slip. Op. 11-158 at 2, 7-8, the court, in
compliance with the mandate issued by the Court of Appeals, issued an opinion and order
remanding the Final Results to Commerce. The background of this litigation is summarized in
these prior opinions.
On February 27, 2012, Commerce submitted the Remand Redetermination, and Timken
and NTN each submitted comments on January 24, 2012 and March 28, 2012, respectively.
1 All statutory citations herein are to the 2006 edition of the United States Code. 2 The court consolidated court numbers 08-00329 and 08-00370 under court number 08-00324. Order (Feb. 18, 2009), ECF No. 32 (consolidating cases). Consol. Court No. 08-00324 Page 4
Timken’s Comments on the Remand Determination, ECF No. 92-4; Plaintiffs’ Comments on the
Dep’t of Commerce’s Remand Determination, ECF No. 94. In response to a consent motion
brought by NTN, the court, before reviewing the Remand Redetermination, stayed this case until
thirty days after the final resolution of all appellate review proceedings in Union Steel v. United
States, CAFC Case No. 2012-1248. Order (Apr. 17, 2012) (staying case). On April 16, 2013,
the Court of Appeals issued an opinion in Union Steel v. United States, 713 F.3d 1101, 1109
(Fed. Cir. 2013) (“Union Steel”), affirming a decision of the U.S. Court of International Trade
that held that Commerce had provided a reasonable explanation for its simultaneous use of the
zeroing methodology in administrative reviews while eliminating the methodology in
antidumping investigations. See Union Steel v. United States, 36 CIT __, 823 F. Supp. 2d 1346
(2012), aff’d, 713 F.3d 1101 (Fed. Cir. 2013). The Court of Appeals issued its mandate on
June 10, 2013, and the time for filing a petition for writ of certiorari with the U.S. Supreme Court
expired on July 15, 2013. Sup. Ct. R. 13.
On August 9, 2013, plaintiffs filed a motion to extend the stay of further proceedings in
this case pending the resolution of all appeals in NSK Corp. v. U.S. Int’l Trade Comm’n,
716 F.3d 1352 (Fed. Cir. 2013) (“NSK”), a case involving the second sunset reviews of the
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Slip Op. 14-64
UNITED STATES COURT OF INTERNATIONAL TRADE
JTEKT CORPORATION, et al.,
Plaintiffs,
v.
UNITED STATES, Before: Timothy C. Stanceu, Judge Defendant, Consol. Court No. 08-00324 and
THE TIMKEN COMPANY,
Defendant-intervenor.
OPINION
[Denying as moot plaintiffs’ motion to stay and affirming the final determination issued by the U.S. Department of Commerce in the eighteenth administrative reviews of antidumping duty orders on ball bearings and parts thereof from France, Germany, Italy, Japan, and the United Kingdom]
Dated: June 11, 2014
Neil R. Ellis, Sidley Austin LLP, of Washington, DC, argued for plaintiffs JTEKT Corp. and Koyo Corp. of U.S.A. With him on the brief was Dave M. Wharwood.
Diane A. MacDonald, Baker & McKenzie, LLP, of Chicago, IL, argued for plaintiffs American NTN Bearing Manufacturing Corp., NTN Bearing Corp. of America, NTN-Bower Corp., NTN Corp., NTN Driveshaft, Inc., and NTN-BCA Corp. With her on the brief was Kevin M. O’Brien.
Daniel J. Cannistra, Crowell & Moring, LLP, of Washington, DC, for plaintiffs Aisin Seiki Co., Ltd. and Aisin Holdings America, Inc.
Loren Misha Preheim, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, argued for defendant United States. With her on the brief were Stuart F. Delery, Assistant Attorney General, Jeanne E. Davidson, Director, and Claudia Burke, Assistant Director. Of counsel on the brief were Shana Hofstetter and Consol. Court No. 08-00324 Page 2
Daniel J. Calhoun, Attorneys, Office of the Chief Counsel for Import Administration, U.S. Department of Commerce.
Geert M. De Prest, Stewart and Stewart, of Washington, DC, argued for defendant- intervenor the Timken Company. With him on the brief were Terence P. Stewart and Lane S. Hurewitz.
Stanceu, Judge: In this consolidated action, plaintiffs challenged various aspects of the
final determination (“Final Results”) issued by the U.S. Department of Commerce (“Commerce”
or the “Department”) to conclude the eighteenth administrative reviews of antidumping duty
orders (the “Orders”) on ball bearings and parts thereof (“subject merchandise”) from France,
Germany, Italy, Japan, and the United Kingdom. Am. Compl. ¶ 2 (Jan. 14, 2009), ECF No. 30;
Ball Bearings & Parts Thereof From France, Germany, Italy, Japan, & the United Kingdom:
Final Results of Antidumping Duty Admin. Reviews & Rescission of Reviews in Part, 73 Fed.
Reg. 52,823 (Sept. 11, 2008) (“Final Results”).
Before the court is the determination on remand (“Remand Redetermination”) that
Commerce submitted in response to the court’s opinion and order in JTEKT Corp. v. United
States, 35 CIT __, Slip. Op. 11-158 (Dec. 15, 2011) (“JTEKT III”). Final Results of
Determination Pursuant to Remand (Feb. 27, 2012), ECF No. 90 (“Remand Redetermination”).
Also before the court is plaintiffs’ motion to stay this case. Pls.’ Mot. to Extend Stay
(Aug. 9, 2013), ECF No. 104 (“Stay Mot.”). The court denies as moot the motion to stay and for
the reasons discussed herein enters a judgment affirming the Remand Redetermination.
I. BACKGROUND
JTEKT Corporation and Koyo Corporation of U.S.A. (collectively, “JTEKT”) brought an
action pursuant to Section 516A of the Tariff Act of 1930, 19 U.S.C. § 1516a, to contest certain
determinations made by Commerce in the Final Results of the eighteenth administrative reviews.
Am. Compl. ¶ 2. These reviews cover entries of subject merchandise made from May 1, 2006 Consol. Court No. 08-00324 Page 3
through April 30, 2007 (“period of review” or “POR”).1 Final Results, 73 Fed. Reg. at 52,823.
The court consolidated JTEKT’s challenge with other cases contesting the Final Results brought
by plaintiffs American NTN Bearing Manufacturing Corp., NTN Bearing Corp. of America,
NTN-Bower Corp., NTN Corp., NTN Driveshaft, Inc., and NTN-BCA Corp. (collectively,
“NTN”) and Aisin Seiki Company, Ltd. and Aisin Holdings America, Inc. (collectively,
“Aisin”).2 Order (Feb. 18, 2009), ECF No. 32 (consolidating cases). The Timken Company
(“Timken”) is the defendant-intervenor in the consolidated case. Order (Oct. 10, 2008), ECF
No. 20.
In JTEKT Corp. v. United States, 34 CIT __, 717 F. Supp. 2d 1322 (2010) (“JTEKT I”),
the court affirmed the Final Results. In JTEKT Corp. v. United States, 642 F.3d 1378 (Fed.
Cir. 2011) (“JTEKT II”), the U.S. Court of Appeals for the Federal Circuit (“Court of Appeals”)
affirmed in part, and vacated and remanded in part, the judgment issued in JTEKT I. The Court
of Appeals vacated and remanded the judgment concerning one issue, the court’s affirmance of
the Department’s decision to apply the “zeroing” methodology, described herein, in the Final
Results. Id. at 1385. In JTEKT III, 35 CIT at __, Slip. Op. 11-158 at 2, 7-8, the court, in
compliance with the mandate issued by the Court of Appeals, issued an opinion and order
remanding the Final Results to Commerce. The background of this litigation is summarized in
these prior opinions.
On February 27, 2012, Commerce submitted the Remand Redetermination, and Timken
and NTN each submitted comments on January 24, 2012 and March 28, 2012, respectively.
1 All statutory citations herein are to the 2006 edition of the United States Code. 2 The court consolidated court numbers 08-00329 and 08-00370 under court number 08-00324. Order (Feb. 18, 2009), ECF No. 32 (consolidating cases). Consol. Court No. 08-00324 Page 4
Timken’s Comments on the Remand Determination, ECF No. 92-4; Plaintiffs’ Comments on the
Dep’t of Commerce’s Remand Determination, ECF No. 94. In response to a consent motion
brought by NTN, the court, before reviewing the Remand Redetermination, stayed this case until
thirty days after the final resolution of all appellate review proceedings in Union Steel v. United
States, CAFC Case No. 2012-1248. Order (Apr. 17, 2012) (staying case). On April 16, 2013,
the Court of Appeals issued an opinion in Union Steel v. United States, 713 F.3d 1101, 1109
(Fed. Cir. 2013) (“Union Steel”), affirming a decision of the U.S. Court of International Trade
that held that Commerce had provided a reasonable explanation for its simultaneous use of the
zeroing methodology in administrative reviews while eliminating the methodology in
antidumping investigations. See Union Steel v. United States, 36 CIT __, 823 F. Supp. 2d 1346
(2012), aff’d, 713 F.3d 1101 (Fed. Cir. 2013). The Court of Appeals issued its mandate on
June 10, 2013, and the time for filing a petition for writ of certiorari with the U.S. Supreme Court
expired on July 15, 2013. Sup. Ct. R. 13.
On August 9, 2013, plaintiffs filed a motion to extend the stay of further proceedings in
this case pending the resolution of all appeals in NSK Corp. v. U.S. Int’l Trade Comm’n,
716 F.3d 1352 (Fed. Cir. 2013) (“NSK”), a case involving the second sunset reviews of the
Orders underlying the administrative reviews at issue in this litigation. Stay Mot. 1-3.
Defendant United States opposes a stay, Def.’s Opp’n to Pls.’ Mot. to Extend Stay
(Aug. 27, 2013), ECF No. 106, and defendant-intervenor Timken takes no position, Timken Co.
Does Not Take a Position on JTEKT, NTN, NSK, & AISIN’s Joint Mot. to Stay Proceedings
(Aug. 28, 2013), ECF No. 107. Consol. Court No. 08-00324 Page 5
II. DISCUSSION
Section 201 of the Customs Courts Act of 1980 grants this court subject matter
jurisdiction over this action. 28 U.S.C. § 1581(c). The court is directed to “hold unlawful any
determination, finding, or conclusion found . . . to be unsupported by substantial evidence on the
record, or otherwise not in accordance with law.” See Tariff Act of 1930 (“Tariff Act”) § 516A,
19 U.S.C. § 1516a(b)(1).
A. The Department’s Application of Zeroing in the Remand Redetermination is Sustained
In an administrative review, Commerce determines both the normal value and the export
price (“EP”), or, if the EP cannot be determined, the constructed export price (“CEP”), for the
subject merchandise under review. Tariff Act § 751, 19 U.S.C. § 1675(a)(2)(A)(i). Commerce
then determines an antidumping duty margin by calculating the amount by which the normal
value exceeds the EP or CEP. Id. §§ 1675(a)(2)(A)(ii), 1677(35)(A). When Commerce
determined an antidumping duty margin according to the zeroing methodology, as it did in the
eighteenth administrative reviews, it assigned a value of zero, rather than a negative margin,
where the normal value is less than the EP or CEP. Union Steel, 713 F.3d at 1104. Commerce
then aggregated these margins to calculate a weighted-average dumping margin. 19 U.S.C.
§ 1677(35)(B).
In JTEKT III, the court instructed Commerce to either reconsider its use of zeroing in
calculating the weighted-average dumping margins or “explain how the language of 19 U.S.C.
§ 1677(35) permissibly may be construed in one way with respect to the use of the zeroing
methodology in antidumping investigations and the opposite way with respect to the use of that
methodology in antidumping administrative reviews.” JTEKT III, 35 CIT at __, Slip. Op. 11-158
at 8. The court also directed Commerce to redetermine NTN’s antidumping duty margin if Consol. Court No. 08-00324 Page 6
Commerce chose on remand to modify the decision to apply zeroing.3 Id. In the Remand
Redetermination, Commerce did not modify its decision to apply zeroing and did not recalculate
NTN’s margin. Remand Redetermination 2, 5. Commerce, however, provided an explanation
for its continuing to apply zeroing in administrative reviews even though it had ceased using
zeroing in antidumping investigations. Id. at 5-17. In Union Steel, the Court of Appeals
affirmed the Department’s use of zeroing in circumstances analogous to those presented by this
case. Union Steel, 713 F.3d at 1103. Upon considering the Department’s explanation for its use
of zeroing and the opinion of the Court of Appeals in Union Steel, the court concludes that Union
Steel is dispositive of the zeroing claim remaining at issue in this action and sustains the
Department’s use of zeroing in the Remand Redetermination.
B. The Court Denies as Moot Plaintiffs’ Motion to Stay this Case
Plaintiffs seek a stay pending the resolutions of both a petition for rehearing by the Court
of Appeals and any later petition for a writ of certiorari to the U.S. Supreme Court in NSK
Corp. v. U.S. Int’l Trade Comm’n, 716 F.3d 1352 (Fed. Cir. 2013) (“NSK”). Stay Mot. 1-2. On
October 25, 2013, the Court of Appeals issued a decision denying the NSK plaintiffs’ combined
petition for panel rehearing and rehearing en banc, NSK Corp. v. U.S. Int’l Trade Comm’n,
542 F. App’x 950 (Fed. Cir. 2013), and on November 6, 2013, the Court of Appeals issued its
mandate. On February 21, 2014, the NSK plaintiffs filed a petition for a writ of certiorari, which
the U.S. Supreme Court denied on June 2, 2014. See Pet. for Writ of Certiorari, U.S. Sup. Ct.
3 Only American NTN Bearing Manufacturing Corp., NTN Bearing Corp. of America, NTN-Bower Corp., NTN Corp., NTN Driveshaft, Inc., and NTN-BCA Corp. appealed the court’s determination in JTEKT Corp. v. United States, 34 CIT __, 717 F. Supp. 2d 1322 (2010) (“JTEKT I”) concerning zeroing. See JTEKT Corp. v. United States, 642 F.3d 1378, 1383-1385 (Fed. Cir. 2011) (“JTEKT II”). Consol. Court No. 08-00324 Page 7
Docket No. 13-1014. Based on these developments, the court denies as moot plaintiff’s request
for a stay of these proceedings.
III. CONCLUSION
For the reasons discussed herein, the court will deny plaintiffs’ request for relief on the
claim challenging the use of zeroing in the Remand Redetermination and the motion for a stay.
The court will enter a judgment affirming the Remand Redetermination.
/s/Timothy C. Stanceu Timothy C. Stanceu Judge
Dated: June 11, 2014 New York, New York