Jtekt Corp.. v. United States

768 F.Supp.2d 1333

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

v.UNITED STATES, Defendant,andThe Timken Company, Defendant–Intervenor.

Slip Op. 11–52.Court No. 07–00377.

United States Court of International Trade.

May 5, 2011.

Sidley Austin, LLP (Neil R. Ellis and Jill Caiazzo) for plaintiffs JTEKT Corporation and Koyo Corporation of U.S.A.Baker & McKenzie, LLP (Washington, District of Columbia) (Kevin J. Sullivan and Kevin M. O'Brien) for plaintiffs FYH Bearing Units USA, Inc. and Nippon Pillow Block Company Ltd.Crowell & Moring, LLP (Matthew P. Jaffe) for plaintiffs NSK Corporation, NSK Ltd., and NSK Precision America, Inc.Baker & McKenzie, LLP (Kevin M. O'Brien, Christine M. Streatfeild, Diane A. MacDonald, and Joseph W. LaFramboise) for plaintiffs American NTN Bearing Manufacturing Corp., NTN Bearing Corporation of America, NTN Bower Corporation, NTN Corporation, NTN Driveshaft, Inc., and NTN–BCA Corporation.Crowell & Moring, LLP (Daniel J. Cannistra and Alexander H. Schaefer) for plaintiffs Aisin Seiki Company, Ltd. and Aisin Holdings of America, Inc.Riggle & Craven (David A. Riggle and Shitao Zhu) for plaintiff Asahi Seiko Co., Ltd.O'Melveny & Myers, LLP (Nausheen Hassan and Greyson L. Bryan) 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 (Loren M. Preheim and Claudia Burke); Joanna Theiss, Aaron Kleiner, Thomas Beline, Brian Soiset, 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) for plaintiffs and defendant-intervenor The Timken Company.

OPINION AND ORDER

STANCEU, Judge.

JTEKT Corporation, formerly Koyo Seiko Company, Ltd.,¹ and Koyo Corporation of U.S.A. (collectively, “JTEKT”) brought an action under section 201 of the Customs Court Act of 1980, 28 U.S.C. § 1581(c) (2006), to contest the final determination of the United States Department of Commerce (“Commerce” or the “Department”) in the seventeenth administrative reviews (“AFBs 17 reviews” or “AFBs 17”) of antidumping duty orders on ball bearings and parts thereof (“subject merchandise”) from France, Germany, Italy, Japan, Singapore, and the United Kingdom. Summons 1; Ball Bearings & Parts Thereof from France, Germany, Italy, Japan, Singapore, & the United Kingdom: Final Results of Antidumping Duty Admin. Reviews & Rescission of Review in Part, 72 Fed.Reg. 58,053, 58,053 (Oct. 12, 2007) (“ Final Results ”); Issues & Decision Mem. for the Antidumping Duty Admin. Reviews of Ball Bearings & Parts Thereof from France, Germany, Italy, Japan, Singapore, & the United Kingdom for the Period of Review May 1, 2005, through April 30, 2006, at 2 (Oct. 4, 2007) (“ Decision Mem.”). The reviews applied to imports of subject merchandise made during the period of May 1, 2005 through April 30, 2006 (“period of review” or “POR”). Final Results, 72 Fed.Reg. at 58,053.

Upon the motion of defendant-intervenor The Timken Company (“Timken”) to consolidate, the court consolidated JTEKT's action with six other cases. Timken U.S. Corporation's Mot. to Consolidate 1 (“Mot. to Consolidate”). The six other groups of plaintiffs in the consolidated cases (referred to in this Opinion and Order collectively with their affiliates) are Asahi Seiko Co., Ltd. (“Asahi”); Aisin Seiki Company, Ltd. and Aisin Holdings of America, Inc. (collectively “Aisin”); Nachi Technology, Inc., Nachi–Fujikoshi Corporation, and Nachi America, Inc. (collectively “Nachi”); FYH Bearing Units USA, Inc. and Nippon Pillow Block Company Ltd. (collectively, “NPB”); American NTN Bearing Manufacturing Corp., NTN Bearing Corporation of America, NTN Bower Corporation, NTN Corporation, NTN Driveshaft, Inc., and NTN–BCA Corporation (collectively, “NTN”); and NSK Corporation, NSK Ltd., and NSK Precision America, Inc. (collectively, “NSK”).

Before the court are the motions of each of the seven plaintiffs for judgment on the agency record, submitted under USCIT Rule 56.2. Also before the court are three other motions. Defendant-intervenor moves to vacate the preliminary injunction against the liquidation of entries with respect to Nachi. Timken's Mot. to Vacate Prelim. Inj. with respect to Nachi (“Timken Mot.”). NTN filed a motion for a stay pending further administrative action on, or alternatively for further briefing on, the zeroing issue, which motion is opposed by defendant and defendant-intervenor. 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”). NTN filed a motion to reply to defendant's and defendant-intervenor's opposition. Pl.'s Am. Unopposed Mot. for Leave to File a Reply to Def.'s Opp'n to the Mot. to Stay (“NTN Mot. to Reply”).

Aisin, Asahi, JTEKT, Nachi, NPB, NSK, and NTN (collectively, “plaintiffs”) assert claims contesting various decisions and determinations in the Final Results that affect the antidumping duty order involving Japan. The court addresses these claims in the respective sections of Part II of this Opinion and Order, as follows: (A) claims of JTEKT, NPB, NTN, Aisin, and Nachi challenging the application of Commerce's “zeroing” methodology to non-dumped sales; (B) claims challenging the Department's revised model-match methodology, the adoption of which JTEKT, NPB, NSK, and NTN oppose generally and the specific application of which JTEKT, NPB, NSK, NTN, and Asahi challenge in certain respects; (C) NSK's claim that Commerce unlawfully deducted certain benefit expenses when determining the constructed export price of NSK's subject merchandise; and (D) the resolution by Commerce in a redetermination upon voluntary remand (“First Remand Redetermination”) of an issue affecting the constructed export price (“CEP”) for certain U.S. sales of Aisin's merchandise. Defendant and defendant-intervenor oppose plaintiffs' Rule 56.2 motions on various grounds.

The court remands the Final Results for reconsideration in response to the claims of the five plaintiffs who challenge the Department's use of the zeroing methodology. The court also directs that Commerce reconsider the determinations challenged in certain claims by JTEKT, NPB and NTN. The court affirms the decision made in the First Remand Redetermination pertaining to the CEP for certain U.S. sales of Aisin's merchandise. The court denies Timken's motion to vacate the preliminary injunction with respect to Nachi.

I. Background

The court sets forth below the procedural history of the administrative and judicial proceedings in general terms common to all plaintiffs. Additional background information specific to the individual claims is presented in Part II of this Opinion and Order.

A. Administrative Proceedings

On May 15, 1989, Commerce issued antidumping duty orders on imports of ball bearings from France, Germany, Italy, Japan, and the United Kingdom. ² On July 3, 2006, Commerce initiated the seventeenth set of administrative reviews of these orders. Initiation of Antidumping & Countervailing Duty Admin. Reviews, 71 Fed.Reg. 37,892, 37,900 (July 3, 2006); Decision Mem. 2. Commerce issued the preliminary results of the administrative reviews (“Preliminary Results”) on June 6, 2007. Ball Bearings & Parts Thereof from France, Germany, Italy, Japan, Singapore, & the United Kingdom: Prelim. Results of Antidumping Duty Admin. Reviews & Intent to Rescind Review in Part, 72 Fed.Reg. 31,271 (June 6, 2007) (“ Prelim.Results ”). On October 12, 2007, Commerce issued the Final Results and incorporated by reference therein an internal issues and decision memorandum (“Decision Memorandum”) containing the Department's analysis of issues raised by interested parties. Final Results, 72 Fed.Reg. at 58,054–55; Decision Mem. In the Final Results, Commerce assigned plaintiffs the following dumping margins: Aisin, 6.15%; Asahi, 1.28%, JTEKT, 15.01%; Nachi, 11.46%; NPB, 26.89%; NSK, 3.66%; and NTN, 7.76%. Final Results, 72 Fed.Reg. at 58,054.

B. Judicial Review in the Consolidated Actions

JTEKT commenced this action on October 12, 2007. Summons; Compl. On November 7, 2007, the court granted the consent motion of Timken to intervene on behalf of defendant. Order, Nov. 7, 2007. Upon defendant-intervenor's motion, the court ordered consolidation under Consolidated Court No. 07–00377 of JTEKT Corp. v. United States, No. 07–00377, NSK Ltd. v. United States, No. 07–00387, Aisin Seiki Co. v. United States, No. 07–00392, NTN Corp. v. United States, No. 07–00395, Nippon Pillow Block Co. v. United States, No. 07–00398, Asahi Seiko Co. v. United States, No. 07–00409, and Nachi–Fujikoshi Corp. v. United States, No. 07–00412. Order, July 29, 2008; Mot. to Consolidate 1. JTEKT, NPB, NSK, NTN, Nachi, and Asahi each filed a motion for judgment upon the agency record in November 2008, which motions defendant and defendant-intervenor oppose in the entirety.³

The court held an in-camera oral argument on August 20, 2009. On September 3, 2009, upon a consent motion for voluntary remand filed by defendant, the court ordered Commerce to reconsider the methodology it used to calculate the constructed export price for Aisin. Order, Sept. 3, 2009 (“Aisin Remand Order”). Commerce submitted the First Remand Redetermination on December 16, 2009, as to which Aisin raised no objection and defendant-intervenor took no position. Redetermination Pursuant to Remand (“First Remand Redetermination”); Aisin's Comments on the Dec. 16, 2009 U.S. Dep't of Commerce Remand Determination 1 (“Aisin Comments”); The Timken Co.'s Comments on the Dec. 16, 2009 U.S. Dep't of Commerce Remand Redetermination 1 (“Timken Comments”)...