JTEKT Corp. v. United States

JTEKT CORP., Plaintiff, v. UNITED STATES, Defendant,andTHE TIMKEN CO., Defendant-Intervenor.

Slip Op. 14-13 Consol. Court No. 06-00250

UNITED STATES COURT OF INTERNATIONAL TRADE

Dated: February 10, 2014

Before: Timothy C. Stanceu, Judge

OPINION AND ORDER

[Granting partial relief from a prior order issued in litigation contesting a determination that concluded administrative reviews of antidumping duty orders on ball bearings and parts thereof]

Neil R. Ellis and Dave M. Wharwood, Sidley Austin, LLP, of Washington, D.C., for plaintiffs JTEKT Corporation and Koyo Corporation of U.S.A.

Diane A. MacDonald, Kevin M. O'Brien, Christine M. Streatfeild, and Sonal Majmudar, Baker & McKenzie, LLP, of Chicago, IL, for plaintiffs FYH Bearing Units USA, Inc. and Nippon Pillow Block Company Ltd.

Diane A. MacDonald, Kevin M. O'Brien, and Christine M. Streatfeild, Baker & McKenzie, LLP, of Chicago, IL, for plaintiffs and defendant-intervenor, American NTN Bearing Manufacturing Corporation, NTN Bearing Corporation of America, NTN-Bower Corporation, NTN Corporation, NTN Driveshaft, Inc., and NTN-BCA Corporation.

Greyson L. Bryan and Nausheen Hassan, O'Melveny & Myers, LLP, of Washington D.C., for plaintiffs Nachi Technology, Inc., Nachi-Fujikoshi Corporation, and Nachi America, Inc.

Robert A. Lipstein and Alexander H. Schaefer, Crowell & Moring, LLP for plaintiffs NSK Corporation, NSK Ltd., and NSK Precision America, Inc. L. Misha Preheim, Trial Attorney, Civil Division, Commercial Litigation Branch and Claudia Burke, Assistant Director, U.S. Department of Justice, for defendant. With them on the brief were Tony West, Assistant Attorney General, and Jeanne E. Davidson, Director. Of counsel on the brief were Deborah R. King and Shana Ann Hofstetter, Office of Chief Counsel for Import Administration, U.S. Department of Commerce.

Geert M. De Prest and Terence P. Stewart, Stewart and Stewart, of Washington D.C., for plaintiff and defendant-intervenor, The Timken Company. With them on the brief was Lane S. Hurewitz.

Stanceu, Judge: Before the court are two motions which seek, inter alia, partial relief from the July 29, 2011 Opinion and Order (the "Second Remand Order") issued in JTEKT Corp. v. United States, 35 CIT __, 780 F. Supp. 2d 1357 (2011) ("JTEKT II"). Def.'s Mot. for Expedited Recons. or Relief from J. 7 (Aug. 12, 2011), ECF No. 173 ("Def.'s Mot."); The Timken Co.'s Mot. for Recons. or Relief from J. 5 (Aug. 10, 2011), ECF No. 171 ("Timken's Mot."). The court grants these motions in part. Also before the court is a motion seeking deconsolidation, dismissal of various claims, and entry of a scheduling order, which the court grants in part. The Timken Co.'s Mot. for Deconsolidation & Dismissal & for Entry of Scheduling Order, ECF No. 196 ("Timken's Mot. for Dismissal").

I. BACKGROUND

In this consolidated case,¹ several plaintiffs contested a final antidumping determination (the "Final Results") issued by the International Trade Administration, U.S. Department of Commerce ("Commerce" or the "Department") to conclude the sixteenth administrative reviews of antidumping duty orders on ball bearings and parts thereof ("subject merchandise") from France, Germany, Italy, Japan, and the United Kingdom. See JTEKT Corp. v. United States,33 CIT 1797, 1798-1799, 675 F. Supp. 2d 1206, 1213 (2009) ("JTEKT I"); Ball Bearings & Parts Thereof from France, Germany, Italy, Japan, & the United Kingdom: Final Results of Antidumping Duty Admin. Reviews, 71 Fed. Reg. 40,064, 40,065 (July 14, 2006) ("Final Results"). The sixteenth administrative reviews cover entries of subject merchandise made from May 1, 2004 through April 30, 2005. Final Results, 71 Fed. Reg. at 40,064.

Plaintiffs in this consolidated case are JTEKT Corporation and Koyo Corporation of U.S.A. (collectively, "JTEKT"); FYH Bearing Units USA, Inc. and Nippon Pillow Block Company Ltd. (collectively, "NPB"); NSK Corporation, NSK Ltd., and NSK Precision America, Inc. (collectively, "NSK"); Nachi Technology, Inc., Nachi-Fujikoshi Corporation, and Nachi America, Inc. (collectively, "Nachi"); and American NTN Bearing Manufacturing Corporation, NTN Bearing Corporation of America, NTN Bower Corporation, NTN Corporation, NTN Driveshaft, Inc., and NTN-BCA Corporation (collectively, "NTN"), which is both a plaintiff and a defendant-intervenor, as is the Timken Company ("Timken").²

The court's prior opinions provide detailed background information concerning this case, which concerns the review of the antidumping duty order on ball bearings and parts thereof from Japan. See JTEKT I, 33 CIT at 1799-1805, 1864-65, 675 F. Supp. 2d at 1213-18, 1263-64; JTEKT II, 35 CIT at __, 780 F. Supp. 2d at 1361; Stay Order 1 (June 4, 2012), ECF No. 185.

Plaintiffs JTEKT, NTN, NPB, and Nachi, challenged, inter alia, the Department's use of the "zeroing" methodology in calculating antidumping margins in the sixteenth administrative reviews. According to this methodology, Commerce assigns to U.S. sales made above normalvalue a dumping margin of zero, rather than a negative margin, when calculating weighted-average dumping margins. JTEKT II, 35 CIT at __, 780 F. Supp. 2d at 1360. Those plaintiffs argued generally that zeroing violates domestic antidumping laws and is inconsistent with international obligations of the United States. JTEKT I, 33 CIT at 1801-02, 675 F. Supp. 2d at 1214-15.

In JTEKT I, the court ordered Commerce to reconsider various aspects of the Final Results but, according to the law governing at that time, affirmed the Department's use of zeroing in the sixteenth administrative reviews. Id., 33 CIT at 1864-65, 675 F. Supp. 2d at 1263-64. After Commerce submitted, in response to JTEKT I, its first remand redetermination and after plaintiffs filed their comments thereon, plaintiff NTN moved to stay this action, citing the Department's plans to modify the method for calculating weighted-average dumping margins to eliminate the future use of zeroing. Pl.'s Mot. to Stay Further Proceedings Pending the Finality of New Antidumping Margin Methodology or, in the Alt., Mot. to Allow Further Briefing 2, 5-9 (Jan. 28, 2011), ECF No. 159 (citing Antidumping Proceedings: Calculation of the Weighted Average Dumping Margin & Assessment Rate in Certain Antidumping Duty Proceedings, 75 Fed. Reg. 81,533, 81,534-35 (Dec. 28, 2010)). In the alternative, NTN requested an opportunity to submit additional briefing on the zeroing issue. Id. at 2.

In JTEKT II, the court construed NTN's motion for a stay as a motion for reconsideration of the court's decision in JTEKT I to uphold the Department's use of zeroing in the Final Results when determining the margins for NTN, JTEKT, Nachi, and NPB. JTEKT II, 35 CIT at __, 780 F. Supp. 2d at 1363. In the Second Remand Order, the court sustained in part and remanded in part the Department's first remand redetermination, finding that the redetermination complied in part with the court's order in JTEKT I and with the applicable law. Id., 35 CIT at __,780 F. Supp. 2d at 1371. The court directed Commerce to reconsider the use of zeroing in light of two intervening decisions of the Court of Appeals for the Federal Circuit ("Court of Appeals") that called into question the Department's use of zeroing in administrative reviews.³ Id. The court also instructed Commerce on remand to "set forth an explanation of how the language of 19 U.S.C. § 1677(35) as applied to the zeroing issue permissibly may be construed in one way with respect to investigations and the opposite way with respect to administrative reviews." Id. Finally, the court ordered Commerce to reconsider the Department's decision to reject NTN's proposal that Commerce incorporate additional design type categories into the "model-match" methodology. Id. at __, 780 F. Supp. 2d at 1363.

Timken and defendant each filed a motion, on August 10, 2011 and August 12, 2011, respectively, requesting that the court uphold the Department's use of zeroing in the sixteenth administrative reviews and either reconsider or grant relief from the court's Second Remand Order as it pertains to zeroing. Timken's Mot. 4-5; Def.'s Mot. 7. Defendant also requested an extension of time to file the second remand redetermination after the court decides the motions for reconsideration or relief. Def.'s Mot. for Enlargement of Time to File Remand Redetermination (Sept. 21, 2011), ECF No. 177 ("Def.'s Extension of Time Mot.").

Before the court responded to the motions for reconsideration or relief, several plaintiffs moved to stay this action pending the final disposition of Union Steel v. United States, CAFC Ct. No. 2012-1248, a case then pending before the Court of Appeals that involved the permissibility of the Department's use of zeroing in an administrative review despite the Department's havingdiscontinued the methodology in antidumping investigations. See Joint Mot. for Stay of Proceedings Pending Appeal in Union Steel v. United States (May 4, 2012), ECF No. 182 ("Pls.' Mot. to Stay Pending Union Steel"). On June 4, 2012, the court stayed further proceedings in this action until thirty days after the final resolution of all appellate proceedings in Union Steel. See Stay Order 1. The Court of Appeals issued its opinion on April 16, 2013, Union Steel v. United States, 713 F.3d 1101 (Fed. Cir. 2013) ("Union Steel"), and issued its mandate on June 10, 2013. The parties' time for filing a petition for writ of certiorari expired on July 15, 2013. By the court's order, the stay in this action expired on August 14, 2013.

After the stay pending Union Steel expired, several plaintiffs and defendant each filed status reports on August 8, 2013 and August 9, 2013, respectively. Pls.' Status Report, ECF No. 191 ("Pls.' Status Report"); Def.'s Status Report & Notice of Supplemental Authority 2, ECF No. 192 ("Def.'s Status Report"). On January 31, 2014, Timken filed an additional motion requesting deconsolidation, a scheduling order for the remand proceeding addressing...