NTN Bearing Corp. of Am. v. United States

46 F.Supp.3d 1375

NTN BEARING CORPORATION OF AMERICA, et al., PlaintiffsandJTEKT Corporation, et al., Plaintiff–Intervenors

v. UNITED STATES, DefendantandThe Timken Company, Defendant-intervenor.

Court No. 10–00286.

Slip Op. 15–12.

United States Court of International Trade.

Feb. 3, 2015.

Diane A. MacDonald, Baker & McKenzie, LLP, of Chicago, IL, for plaintiffs NTN Bearing Corp. of America, NTN Corp., NTN Bower Corp., American NTN Bearing Manufacturing Corp., NTN–BCA Corp., and NTN Driveshaft, Inc. With her on the brief was Kevin M. O'Brien.

Neil R. Ellis and Dave M. Wharwood, Sidley Austin LLP, of Washington, DC, for plaintiff-intervenors JTEKT Corp. and Koyo Corp. of U.S.A.

L. Misha Preheim, Trial Attorney, and Claudia Burke, Assistant Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, for defendant United States. With them on the brief were Stuart F. Delery, Assistant Attorney General, Jeanne E. Davidson, Director, and Patricia M. McCarthy, Assistant Director. Of counsel on the brief were Shana Hofstetter and 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, for defendant-intervenor The Timken Company. With him on the briefings were Terence P. Stewart and Lane S. Hurewitz.

OPINION AND ORDER

STANCEU, Chief Judge:

Plaintiffs (collectively, “NTN”)¹ contest the final determination (“Final Results”) issued by the International Trade Administration, U.S. Department of Commerce (“Commerce” or the “Department”), to conclude a set of administrative reviews of antidumping duty orders on ball bearings and parts thereof (“subject merchandise”) from France, Germany, Italy, Japan, and the United Kingdom. Am. Compl. ¶ 1 (Oct. 17, 2011), ECF No. 66 (“Am. Compl.”). See Ball Bearings and Parts Thereof From France, Germany, Italy, Japan, and the United Kingdom: Final Results of Antidumping Duty Administrative Reviews, Final Results of Changed–Circumstances Review, and Revocation of an Order in Part,

75 Fed.Reg. 53,661 (Int'l Trade Admin. Sept. 1, 2010) (“Final Results ”). The twentieth administrative reviews cover entries of subject merchandise made during the period of May 1, 2008 through April 30, 2009 (“period of review” or “POR”). Id. at 53,661.

Plaintiffs assert claims stemming from the antidumping duty order on subject merchandise from Japan. In Count I, they challenge the Department's use of “zeroing” methodology in the twentieth administrative reviews, according to which Commerce assigned to U.S. sales made above normal value a dumping margin of zero, instead of a negative margin, when calculating weighted-average dumping margins. Am. Compl. ¶¶ 19–26. In Count II, they challenge the Department's practice of issuing liquidation instructions to U.S. Customs and Border Protection (“Customs” or “CBP”) fifteen days after publication of the final results of an administrative review (the “fifteen-day rule”). Am. Compl. ¶¶ 27–32. Count III alleges that Commerce made clerical and other methodological errors when calculating NTN's credit expenses by failing to use updated data from NTN's supplemental questionnaire. Am. Compl. ¶¶ 33–35. Plaintiff-intervenor JTEKT Corp., a Japanese producer and exporter of ball bearings, and its affiliated importer, Koyo Corp. of U.S.A., (collectively, “JTEKT”) join in the “zeroing” claim alleged in Count I of the complaint. Mot. of Pl.-Intervenors JTEKT Corp. & Koyo Corp. of U.S.A. for J. on the Agency R. 1 (Dec. 16, 2011), ECF No. 70 (“JTEKT's Mot.”).

Before the court are NTN's and JTEKT's motions for judgment on the agency record. Pls.' Mot. for J. on the Agency R. (Dec. 16, 2011), ECF No. 69 (“NTN's Mot.”); JTEKT's Mot. Also before the court is a request by defendant United States for a partial remand of this case to allow Commerce to correct errors relating to NTN's credit expenses, which are the subject of Count III of the complaint. Def.'s Opp'n to Pls.' & Pl.-Intervenors' Mots. for J. Upon the Agency R. 30 (Mar. 16, 2012), ECF No. 76 (“Def.'s Opp'n”). As discussed herein, the court affirms the Department's use of zeroing, grants defendant's request for a voluntary remand, and concludes that the fifteen-day rule is unlawful as applied to NTN in this case.

I. Background

The court's prior opinions provide background, which is supplemented herein. See NTN Corp. v. United States, 34 CIT ––––, 744 F.Supp.2d 1370 (2010) (“NTN I ”) (denying JTEKT's motion for a preliminary injunction); NTN Corp. v. United States, 35 CIT ––––, Slip Op. 11–129, 2011 WL 4910427 (Oct. 17, 2011) (“NTN II ”) (granting plaintiffs' motion for leave to amend the complaint); NTN Corp. v. United States, 36 CIT ––––, Slip Op. 12–75, 2012 WL 1999645 (June 4, 2012) (“NTN III ”) (staying case).

1. The Twentieth Administrative Reviews of the Orders

Commerce first published the antidumping duty order on ball bearings and parts thereof from Japan (the “Order”) in 1989. Antidumping Duty Orders: Ball Bearings, Cylindrical Roller Bearings, and Spherical Plain Bearings, and Parts Thereof From Japan, 54 Fed.Reg. 20,904 (Int'l Trade Admin. May 15, 1989). On June 24, 2009, Commerce initiated the twentieth periodic administrative reviews of the orders on subject merchandise from various countries, which included a review of the Order on subject merchandise from Japan that is at issue in this case. Initiation of Antidumping and Countervailing Duty Administrative Reviews and Requests for Revocation In Part,

74 Fed.Reg. 30,052 (Int'l Trade Admin. June 24, 2009). On April 28, 2010, Commerce published its preliminary determination. Ball Bearings and Parts Thereof From France, Germany, Italy, Japan, and the United Kingdom: Preliminary Results of Antidumping Duty Administrative Reviews, Preliminary Results of Changed–Circumstances Review, Rescission of Antidumping Duty Administrative Reviews in Part, and Intent To Revoke Order In Part, 75 Fed.Reg. 22,384 (Int'l Trade Admin. Apr. 28, 2010). Commerce selected only two Japanese exporter/producers for individual examination, NTN Corp. and NSK Ltd. Id. at 22,385. JTEKT Corp. was one of the respondents not selected for individual examination. Calculation of the Margin for Respondents Not Selected for Individual Examination 1 n. 1 (Aug. 26, 2010) (Japan Public Admin.R.Doc. No. 145).

On September 1, 2010, Commerce published the Final Results, assigning a 13.46% dumping margin to NTN Corp., an 8.48% margin to NSK Ltd., and a simple average of those two margins, 10.97%, to companies not selected for individual examination, including JTEKT Corp. Final Results, 75 Fed.Reg. at 53,662 ; see also Issues & Decision Mem. for the Antidumping Duty Admin. Reviews of Ball Bearings & Parts Thereof from France, Germany, Italy, Japan, & the United Kingdom for the Period of Review May 1, 2008, through April 30, 2009, A–100–001, ARP 04–09 (Aug. 26, 2010) (Various Countries Public Admin.R.Doc. No. 31), available at http://enforcement.trade.gov/frn/summary/MULTIPLE/2010–21839–1. pdf (last visited Jan. 28, 2015) (“Decision Mem. ”). In the Final Results, Commerce also stated its intention to issue implementing liquidation instructions to Customs fifteen days after the publication date of the Final Results. Final Results , 75 Fed.Reg. at 53,663.

2. Proceedings Before the Court

NTN commenced this action by filing a summons and a complaint on September 16, 2010. Summons, ECF No. 1; Compl., ECF No. 2 (first complaint). On October 5, 2010, the court granted a consent motion by The Timken Company (“Timken”) to intervene as a defendant in this case. Order, ECF No. 24. On October 12, 2010, the court granted a consent motion by JTEKT Corp. and Koyo Corp. of U.S.A. to intervene as plaintiffs. Order, ECF No. 34.

On November 22, 2010, defendant moved to dismiss Counts I and III of the complaint for failure to state a claim upon which relief can be granted and Count II of the complaint on the ground that NTN lacked standing to challenge the Department's fifteen-day liquidation rule. Def.'s Mot. to Dismiss 1, 3–10, ECF No. 39. On October 17, 2011, the court granted NTN's motion to amend its complaint and denied as moot defendant's motion to dismiss. NTN II, 35 CIT at ––––, Slip Op. 11–129 at 4. See Mot. for Leave to File an Am. Compl. (Feb. 1, 2011), ECF No. 54. The court deemed as filed an amended complaint that NTN had filed along with its motion to amend its complaint. NTN II, 35 CIT at ––––, Slip Op. 11–129 at 4. See also Am. Compl. Defendant and defendant-intervenor filed answers to the amended complaint. Def.'s Answer (Oct. 28, 2011), ECF No. 67; Answer to Am. Compl. (Nov. 7, 2011), ECF No. 68.

On December 16, 2011, NTN and JTEKT submitted their motions for judgment on the agency record. NTN's Mot. 1; Pl.'s Br. in Supp. of its Mot. for J. on the Agency R., ECF No. 69–1 (“NTN's Br.”); JTEKT's Mot. 1; Mem. of P. & A. in Supp. of Mot. of Pl.-Intervenors JTEKT Corp. & Koyo Corp. of U.S.A. for J. on the Agency R., ECF No. 70 (“JTEKT's Br.”).

On March 16, 2012, the United States and Timken submitted responses opposing the motions for judgment on the agency record. Def.'s Opp'n 1; Resp. Br. of the Timken Co. Opposing the Rule 56.2 Mots. of NTN & JTEKT, ECF No. 78 (“Timken's Opp'n”).

On June 4, 2012, the court stayed this action pending final resolution of all appellate proceedings in Union Steel v. United States, CAFC Court No. 2012–1248, which involved a claim similar to the claim challenging zeroing that is presented in this action.NTN III, 36 CIT at ––––, Slip Op. 12–75 at 3–4. On April 16, 2013, the Court of Appeals for the Federal Circuit (“Court of Appeals”) issued a decision in Union Steel v. United States, 713 F.3d 1101, 1103 (Fed.Cir.2013) (“Union Steel II ”), in which it affirmed the use of zeroing in an antidumping administrative review. After the stay was lifted, the court issued, on June 5, 2014, an opinion denying as moot a motion by plaintiffs and plaintiff-intervenors...