JTEKT Corp. and Koyo Corp. of U.S.A v. United States , 37 F. Supp. 3d 1326 ( 2014 )

Slip Op.
UNITED STATES COURT OF INTERNATIONAL TRADE
JTEKT CORPORATION and KOYO
CORPORATION OF U.S.A.,
Plaintiffs,
v. Before: Timothy C. Stanceu, Chief Judge
UNITED STATES, Consol. Court No. 07-00377
Defendant,
and
THE TIMKEN COMPANY,
Defendant-intervenor.
OPINION
[Affirming a remand redetermination issued by the International Trade Administration, U.S.
Department of Commerce, in litigation arising from administrative reviews of antidumping duty
orders on ball bearings and parts thereof]
Dated:'HFHPEHU
Neil R. Ellis and Dave M. Wharwood, Sidley Austin, LLP, of Washington, D.C., for
plaintiffs JTEKT Corp and Koyo Corp of U.S.A.
Diane A. MacDonald, Baker & McKenzie, LLP, of Chicago, IL, for plaintiffs NTN
Bower Corporation, NTN Corp., NTN Bearing Corp. of America, NTN-BCA Corp., NTN
Driveshaft, Inc., and American NTN Bearing Manufacturing Corp. With her on the brief were
Kevin M. O’Brien and Christine M. Streatfeild.
David A. Riggle, W.L. Gore & Associates, of Newark, DE, for plaintiff Asahi Seiko
Co., Ltd.
Kevin M. O’Brien, Baker & McKenzie, LLP, of Washington, D.C., for plaintiffs Nippon
Pillow Block Co. Ltd. and FYH Bearing Units USA, Inc.
Alexander H. Schaefer, Crowell & Moring, LLP, of Washington, D.C., for plaintiffs NSK
Ltd., NSK Corp., and NSK Precision America.
Consol. Court No. 07-00377 Page 2
Alexander H. Schaefer and Daniel Cannistra, Crowell & Moring, LLP, of Washington,
D.C., for plaintiffs Aisin Seiki Co., Ltd. and Aisin Holdings of America, Inc.
Greyson L. Bryan, O’Melveny & Myers, LLP, of Washington, D.C., for plaintiffs Nachi
America, Inc., Nachi Fujikoshi Corp., and Nachi Technology, Inc.
Claudia Burke, Assistant Director, L. Misha Preheim, Senior Trial Counsel, Civil
Division, Commercial Litigation Branch, U.S. Department of Justice, of Washington, D.C., for
defendant United States. With them on the brief were Jeanne E. Davidson, Director, Stuart F.
Delery, Assistant Attorney General. Of counsel on the brief were Shana Hofstetter, Attorney,
and Daniel J. Calhoun, Attorney, Office of the Chief Counsel for Import Administration, U.S.
Department of Commerce.
Geert De Prest, Lane S. Hurewitz, and Terence P. Stewart, Stewart and Stewart, of
Washington, D.C., for plaintiff and defendant-intervenor the Timken Company.
Stanceu, Chief Judge: In this consolidated action,1 several plaintiffs contested various
aspects of a determination (“Final Results”) issued by the International Trade Administration,
U.S. Department of Commerce (“Commerce” or the “Department”) to conclude the seventeenth
administrative reviews of antidumping duty orders on ball bearings and parts thereof from
France, Germany, Italy, Japan, Singapore, and the United Kingdom (“subject merchandise”).
See Ball Bearings and Parts Thereof from France, Germany, Italy, Japan, Singapore, and the
United Kingdom: Final Results of Antidumping Duty Admin. Reviews and Rescission of Review
in Part, 72 Fed. Reg. 58,053 (Int’l Trade Admin. Oct. 12, 2007) (“Final Results”).
Before the court is the second redetermination upon remand (“Second Remand
Redetermination”) that Commerce submitted in response to the court’s opinion and order in
JTEKT Corp. v. United States, 35 CIT __, 768 F. Supp. 2d 1333 (2011) (“JTEKT I”). Final
Second Remand Determination (Sept. 19, 2011), ECF No. 147 (“Second Remand
1
Seven actions are consolidated under Consolidated Court Number 07-00377: NSK
Ltd. v. United States (Ct. No. 07-00387); Aisin Seiki Co., Ltd. v. United States (Ct.
No. 07-00392); NTN Bearing Corp. of America v. United States (Ct. No. 07-00395); Nippon
Pillow Block Co. Ltd. v. United States (Ct. No. 07-00398); Asahi Seiko Co., Ltd. v. United
States (Ct. No. 07-00409); Nachi Fujikoshi Corp. v. United States (Ct. No. 07-00412). Order
(July 29, 2008), ECF No. 26 (consolidating cases).
Consol. Court No. 07-00377 Page 3
Redetermination”). For the reasons presented herein, the court affirms the Second Remand
Redetermination.
I. BACKGROUND
When described together with their affiliates, there are seven plaintiffs in this
consolidated action, all of which contested various aspects of the Final Results involving the
antidumping duty order on ball bearings and parts from Japan (the “Order”). The seven plaintiffs
are: (1) Asahi Seiko Co., Ltd. (“Asahi”); (2) Aisin Seiki Co., Ltd. and Aisin Holdings of
America, Inc. (collectively, “Aisin”); (3) JTEKT Corp. and Koyo Corp. of U.S.A. (collectively,
“JTEKT”); (4) Nachi Technology, Inc., Nachi-Fujikoshi Corp., and Nachi America, Inc.
(collectively, “Nachi”); (5) FYH Bearing Units USA, Inc. and Nippon Pillow Block Co. Ltd.
(collectively, “NPB”); (6) 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 (7) NSK Corp., NSK Ltd., and NSK Precision America, Inc.
(collectively, “NSK”). JTEKT I, 35 CIT __, 768 F. Supp. 2d at 1338-39. The seventeenth
administrative review of the Order covers entries of subject merchandise made during the period
of May 1, 2005 through April 30, 2006 (“POR” or “period of review”). Final Results, 72 Fed.
Reg. at 58,053.
The detailed background of plaintiffs’ various challenges in this case is provided in the
court’s prior opinions and is supplemented herein. See Order 1-3 (Sept. 3, 2009), ECF No. 100
(first remand order); JTEKT I, 35 CIT __, 768 F. Supp. 2d at 1339-41 (second remand order);
JTEKT Corp. v. United States, 35 CIT __, Slip Op. 11-86 (July 20, 2011) (denying
reconsideration) (“JTEKT II”); JTEKT Corp. v. United States, 36 CIT __, Slip Op. 12-73
(June 4, 2012) (stay order) (“JTEKT III”).
Consol. Court No. 07-00377 Page 4
On October 12, 2007, Commerce issued the Final Results and an accompanying decision
memorandum (“Decision Memorandum”). Final Results, 72 Fed. Reg. at 58,054–55; 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 (Oct. 12, 2007), available at
http://enforcement.trade.gov/frn/summary/MULTIPLE/E7-20151-1.pdf (“Decision Mem.”) (last
visited Dec. 18, 2014). The Final Results assigned the following antidumping duty margins to
plaintiffs: 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.
A. The First Redetermination in Response to a Remand Order on a Claim by Aisin
On September 3, 2009, upon defendant’s consent motion for a voluntary remand to
address a claim by Aisin, the court issued a narrow first remand order requiring Commerce to
reconsider the methodology it used in the Final Results to calculate constructed export price
(“CEP”) for sales of Aisin’s merchandise. Order 1-3, ECF No. 100 (“first remand order”).
Commerce filed the results of this remand order (“First Remand Redetermination”) on
December 16, 2009, in which it changed its methodology for determining CEP and revised
Aisin’s margin from 6.15% to 1.13%. Redetermination Pursuant to Remand 1, ECF No. 105. In
JTEKT I, issued on May 5, 2011, the court affirmed the Department’s resolution of Aisin’s claim
concerning CEP, to which no party had objected. JTEKT I, 35 CIT at __, 768 F. Supp. 2d
at 1363-64.
B. The Court’s Second Remand Order
The court’s opinion and order in JTEKT I also addressed various challenges not
adjudicated in the limited first remand order, as discussed below.
Consol. Court No. 07-00377 Page 5
1. The Order to Reconsider the Use of the “Zeroing” Methodology
The court’s opinion and order in JTEKT I included, inter alia, a second remand order on
the Department’s decision in the Final Results to apply the “zeroing” methodology, under 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. Id. at __, 768 F.
Supp. 2d at 1364. The court considered a remand on the zeroing question necessary because of
an intervening decision of the Court of Appeals for the Federal Circuit (“Court of Appeals”),
Dongbu Steel Co. v. United States, 635 F.3d 1363 (Fed. Cir. 2011). Id. at __, 768 F. Supp. 2d
at 1342-43. The court ordered Commerce to modify its decision to apply the zeroing
methodology or, alternatively, to provide an explanation of the Department’s inconsistent
interpretation of 19 U.S.C. § 1677(35) with respect to antidumping duty investigations and
administrative reviews.2 Id. at __, 768 F. Supp. 2d at 1343. The court subsequently denied a
motion by defendant for reconsideration of the court’s directive in JTEKT I concerning zeroing.
JTEKT II, 35 CIT at __, Slip Op. 11-86 at 4.
2. Rejection of Claims Challenging the Use of a Revised Model-Match Methodology
Commerce uses a “model-match” methodology to identify identical and similar
merchandise for the purpose of conducting comparisons between the U.S. price of subject
merchandise and the price of comparable merchandise in the comparison market. See JTEKT I,
35 CIT at __, 768 F. Supp. 2d at 1343-44 (citing 19 U.S.C. §§ 1677b, 1677(16)(A)-(C)). In
JTEKT I, the court considered claims by JTEKT, Nachi, NBP, NSK, and NTN that challenged
the Department’s use of a ball bearing model-match methodology in the seventeenth
2
Unless otherwise indicated, all statutory citations herein are to the 2006 edition of the
U.S. Code and all regulatory citations herein are to the 2007 edition of the Code of Federal
Regulations.
Consol. Court No. 07-00377 Page 6
administrative reviews that differed from the methodology Commerce used in the first fourteen
administrative reviews of the ball bearing antidumping duty orders. Id. at __, 768 F. Supp. 2d
at 1345. The court rejected these claims, finding lawful the Department’s decision to adopt the
particular model-match methodology used in the seventeenth administrative reviews.3 Id. at __,
768 F. Supp. 2d at 1345-50.
3. The Court’s Consideration of Claims Challenging Individual Model Matches
The court in JTEKT I also considered claims of JTEKT, NPB, NSK, and Asahi that the
Department’s model-match methodology produced certain individual matches that did not satisfy
the statutory criteria for similar merchandise as set forth in 19 U.S.C. § 1677(16). Id. at __,
768 F. Supp. 2d at 1350. The court rejected these claims other than one claim made by JTEKT,
as discussed below.
a. The Order Concerning an Individual Match Challenged by JTEKT
JTEKT identified fourteen ball bearing matches it claimed to be impermissible under the
statute. Id. In JTEKT I, the court denied relief on all but one of the fourteen claims. Id at __,
768 F. Supp. 2d at 1351-53. The court issued a remand with respect to one match (JTEKT’s
“third match”), noting that Commerce had rejected as untimely certain information that raised a
factual issue as to whether that match resulted from a misapplication of the model-match
3
The court reasoned that the Court of Appeals for the Federal Circuit (“Court of
Appeals”) had previously rejected arguments similar to those that plaintiffs advanced in this
case, noting that 19 U.S.C. § 1677(16) “‘is silent with respect to the methodology that
Commerce must use to match a U.S. product with a suitable home-market product.’” JTEKT
Corp. v. United States, 35 CIT __, __, 768 F. Supp. 2d 1333, 1346 (2011) (“JTEKT I”) (citing
SKF USA, Inc. v. United States, 537 F.3d 1373, 1379 (Fed. Cir. 2008) (quoting Koyo Seiko Co. v.
United States, 66 F.3d 1204, 1209 (Fed. Cir. 1995)). After the court issued JTEKT I, the Court
of Appeals sustained the Department’s application of the revised model-match methodology in
the eighteenth administrative reviews of the antidumping duty orders on ball bearings, stating
that “Commerce has provided ample justification for the use of this method and it is therefore
reasonable.” JTEKT Corp. v. United States, 642 F.3d 1378, 1381 (Fed. Cir. 2011).
Consol. Court No. 07-00377 Page 7
methodology and ordering Commerce to reconsider that information. Id at __, 768 F. Supp. 2d
at 1352-53, 1364.
b. Rejection of Claims by NPB, NSK, and Asahi that Individual Matches Were Unlawful
NPB claimed that Commerce impermissibly matched housed bearings to unhoused
bearings and bearings with collars to bearings without collars. JTEKT I, 35 CIT at __,
768 F. Supp. 2d at 1353-55. The court dismissed these claims in JTEKT I for failure to exhaust
administrative remedies, noting that NPB had not raised the issue of these matches in the case
brief it filed during the review. Id.In JTEKT I, the court also rejected a claim by NSK that the Department’s application of
the model-match methodology impermissibly produced egregiously dissimilar matches. Id.at __, 768 F. Supp. 2d at 1355-56. The court concluded that NSK had not substantiated its claim
with specific record evidence that such objectionable matches of its merchandise actually
occurred. Id. The court reasoned that “NSK’s argument reduces to a contention that the new
model-match methodology theoretically could result in matching models under the new
methodology that would have been rejected under the old methodology,” id. at __,
768 F. Supp. 2d at 1356, a contention the court found insufficient as a basis for overturning the
Department’s decisions, id.Asahi claimed that the Department’s matching of its “standard bearings” sold in the
United States with its “high temperature bearings” sold in Japan was inconsistent with 19 U.S.C.
§ 1677(16)(B). Id. The court denied relief on this claim on the basis that the Department’s
model-match methodology has a mechanism for adjusting for differences in the variable cost of
manufacturing and for rejecting matches in which that adjustment would be too large. Id. at __,
768 F. Supp. 2d at 1356-57. Noting that Asahi had proposed in its case brief to Commerce that
Consol. Court No. 07-00377 Page 8
the model-match methodology should be modified to address specifically the differences
between standard and high-temperature bearings, the court decided that Commerce did not
exceed its discretion in rejecting Asahi’s proposal because the proposal was made at a late stage
of the review proceeding. Id at __, 768 F. Supp. 2d at 1357.
4. The Order for Consideration of NPB’s Proposed Changes to the Model-Match Methodology
During the review, NPB proposed substantive changes to the model-match methodology
suggesting that Commerce incorporate the existence of various physical characteristics of ball
bearings that the methodology did not address specifically. Id. Commerce rejected this proposal
for the same reason it rejected the proposal by Asahi: it considered the proposal to have been
made in the case brief and, therefore, too late in the review to merit consideration. Id at __,
768 F. Supp. 2d at 1357-58. In JTEKT I, the court determined that the record contradicted the
Department’s finding that NBP had first made the proposal in a case brief. Id. at __,
768 F. Supp. 2d at 1358. The court noted record evidence showing that NPB made the proposal
in a response to a supplemental questionnaire, six months prior to publication of the preliminary
results of the review. Id. The court also observed that “Commerce never made a specific finding
that it could not consider the merits of NPB’s proposal for additional physical
characteristics . . . due to the date on which the supplemental questionnaire response was filed.”
Id. The court, therefore, ordered Commerce to reconsider the decision to reject NPB’s proposal.
Id at __, 768 F. Supp. 2d at 1358, 1364.
5. The Order on Bearings Claimed by NTN to Fall Within More than One Design Type
As discussed later in this Opinion, the model-match methodology matches bearings
according to various characteristics, including specified “design types” of ball bearings. In
considering various claims by NTN that the model-match methodology should consider
Consol. Court No. 07-00377 Page 9
incorporating additional design types, the court concluded that Commerce had not addressed one
of the issues raised by NTN, specifically, how the model-match methodology resolved the
problem of bearings that could be classified within more than one of the specified design types.
Id. at __, 768 F. Supp. 2d at 1360. The court directed Commerce to resolve this issue upon
remand. Id at __, 768 F. Supp. 2d at 1360, 1364.
6. Rejection of NSK’s Claim Pertaining to Certain Employee Benefit Expenses
NSK claimed that Commerce, when calculating the constructed export price of its
merchandise, improperly deducted certain employee benefit expenses that NSK incurred in the
United States on behalf of employees who are Japanese nationals. Id. at __, 768 F. Supp. 2d
at 1360-62. Denying relief on this claim, the court affirmed the Department’s findings that the
employees received the benefits and were supporting the U.S. sales to unaffiliated purchasers; it
also affirmed the Department’s conclusion that the expenses qualified for deduction as
“‘expenses associated with commercial activities in the United States that relate to the sale to an
unaffiliated purchaser’” within the meaning of the Department’s regulation. Id. at __,
768 F. Supp. 2d at 1361 (citing 19 C.F.R. § 351.402(b)).
C. The Department’s Second Remand Redetermination
Commerce filed the Second Remand Redetermination on September 19, 2011, Second
Remand Redetermination 1, and NPB, JTEKT, and NTN each filed comments thereon on
October 19, 2011, Pls.’ Nippon Pillow Block Co. Ltd. & FYH Bearing Units USA, Inc.
Comments on Second Remand Determination, ECF No. 153 (“NPB’s Comments”); Comments
of Pls. JTEKT Corp. & Koyo Corp. of U.S.A. on Second Remand Determination, ECF No. 154
(“JTEKT’s Comments”); Pls.’ Comments on the Dep’t of Commerce’s Second Remand
Determination, ECF No. 155 (“NTN’s Comments”). Timken filed rebuttal comments on
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December 14, 2011, Timken’s Rebuttal Comments in Support of Commerce’s Remand
Determination, ECF No. 160 (“Timken’s Comments”), and defendant filed a reply on
December 22, 2011, Def.’s Reply to Pls.’ Comments upon the Second Remand Redetermination,
ECF No. 165 (“Def.’s Reply”). In the Second Remand Redetermination, Commerce did not
recalculate the margins for any respondent. Second Remand Redetermination 2.
D. The Court’s Order Staying these Proceedings
Before reviewing the Second Remand Redetermination, the court, upon a motion by
several plaintiffs, stayed this case until thirty days after the final resolution of all appellate
review proceedings in Union Steel v. United States, CAFC Court No. 2012-1248, which
addressed the question of whether it was permissible for Commerce to use its zeroing
methodology in administrative reviews of antidumping duty orders. See JTEKT III, 36 CIT
at __, Slip Op. 12-73 at 7. The Court of Appeals issued an opinion in Union Steel v. United
States, 713 F.3d 1101 (Fed. Cir. 2013) (“Union Steel”), on April 16, 2013 and a mandate on
June 10, 2013.
On August 15, 2013, several plaintiffs asked the court to stay further proceedings in this
case until the resolution of all appellate proceedings in NSK Corp. v. U.S. Int’l Trade Comm’n,
716 F.3d 1352 (Fed. Cir. 2013), a request the court later denied as moot. Order (June 5, 2014),
ECF No. 182.
II. DISCUSSION
The court exercises subject matter jurisdiction over this action pursuant to section 201 of
the Customs Courts Act of 1980, 28 U.S.C. § 1581(c). The court must “hold unlawful any
determination, finding, or conclusion found . . . to be unsupported by substantial evidence on the
Consol. Court No. 07-00377 Page 11
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 Court Affirms the Department’s Application of the Zeroing Methodology
In an administrative review of an antidumping duty order, Commerce determines both the
normal value and the export price (“EP”), or, if the EP cannot be determined, 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 determines an antidumping duty margin according to the
zeroing methodology, as it did in the seventeenth administrative reviews, it assigns 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 aggregates these margins to calculate a
weighted-average dumping margin. 19 U.S.C. § 1677(35)(B).
JTEKT, NPB, NTN, Aisin, and Nachi challenged the Department’s use of zeroing in the
seventeenth administrative reviews. JTEKT I, 35 CIT at __, 768 F. Supp. 2d at 1341-43. As
discussed previously, JTEKT I instructed Commerce to either reconsider the use of zeroing in
calculating the weighted-average dumping margins or “provide an explanation for its express or
implied construing of 19 U.S.C. § 1677(35) inconsistently with respect to antidumping duty
investigations and administrative reviews.” Id. at __, 768 F. Supp. 2d at 1364. On remand,
Commerce did not modify its decision to apply zeroing and did not recalculate the antidumping
margins for those plaintiffs challenging zeroing. Second Remand Redetermination 2. Commerce
provided an explanation for its continued application of zeroing in administrative reviews while
ceasing to apply zeroing in antidumping investigations. Id. at 4-14. In comments on the Second
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Remand Redetermination, various parties found fault with the Department’s explanation for the
continued application of zeroing in administrative reviews. See JTEKT Comments 9-11; NTN
Comments 3-7; NPB’s Comments 5-6.
After the parties to this action submitted comments on the Second Remand
Redetermination, the Court of Appeals issued its decision in Union Steel. In Union Steel, the
Court of Appeals affirmed the Department’s use of zeroing in circumstances that the court
considers analogous to those presented by this case. See 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 claims
at issue in this action and sustains the Department’s use of zeroing in the Second Remand
Redetermination.
B. Remaining Claims Involving Application of the Model-Match Methodology
To determine an antidumping margin, Commerce compares the U.S. price of the subject
merchandise with the price of comparable merchandise (the “foreign like product”) in the
“home” market (i.e., the actual home market or another comparison market). 19 U.S.C. § 1677b.
In identifying a foreign like product, Commerce attempts to match U.S. sales of the subject
merchandise with home market sales of identical merchandise. 19 U.S.C. § 1677(16)(A).
Where Commerce is unable to identify home market sales of identical merchandise, Commerce
attempts to match a U.S. sale of subject merchandise with a home market sale of similar
merchandise. See id. § 1677(16)(B)-(C).
Consol. Court No. 07-00377 Page 13
Commerce first applied its revised model-match methodology in the fifteenth
administrative reviews of the ball bearing antidumping duty orders.4 JTEKT I, 35 CIT at __,
768 F. Supp. 2d at 1344. Under the revised methodology, Commerce matches a ball bearing
model sold in the United States, i.e., a “subject” ball bearing, with one sold in the home market
only if the two bearings are identical with respect to the following four physical characteristics:
(1) load direction, (2) number of rows of rolling elements, (3) precision rating, and (4) ball
bearing “design type.” Id. As applied in the seventeenth reviews, the model-match methodology
recognized the following ball bearing design types: angular contact, self-aligning, deep groove,
integral shaft, thrust ball, housed, and insert. Id. For pairs of bearings that are identical with
respect to all four physical characteristics, Commerce examines four quantitative characteristics:
(1) load rating, (2) outer diameter, (3) inner diameter, and (4) width. Id. Commerce makes the
match only if the sum of the individual deviations for these four quantitative characteristics does
not exceed forty percent. Id. Commerce also applies a “difference-in-merchandise adjustment”
(“DIFMER” adjustment), under which Commerce makes a price adjustment to account for any
difference in the variable cost of manufacturing, up to twenty percent. Id. Commerce does not
make the match if the DIFMER adjustment would exceed twenty percent. Id.
1. The Court Affirms the Department’s Rejection of NPB’s Proposal to Incorporate Additional
Physical Characteristics Into the Model-Match Methodology
As discussed previously, NBP proposed a modification to the model-match methodology
that Commerce rejected, erroneously, on the ground that NPB first made the proposal in a case
4
In the first fourteen administrative reviews of the antidumping duty orders, the U.S.
Department of Commerce (“Commerce” or the “Department”) identified similar merchandise
using what was termed the “family” model-match methodology, according to which Commerce
grouped ball bearings based on exact matches of eight specific characteristics. JTEKT I,
35 CIT at __, 768 F. Supp. 2d at 1344.
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brief. JTEKT I, 35 CIT at __, 768 F. Supp. 2d at 1357. NPB’s proposal was that “at a
minimum” Commerce should incorporate into the methodology certain additional physical
characteristics, namely, types of seals (e.g., standard or heat-proof), types of grease (e.g.,
standard or heat-proof), ceramic versus non-ceramic, and diameters of a second inner dimension,
second outer dimension, second width dimension, and third width dimension. Id. Before the
court, NPB argued that the Department’s decision not to incorporate the additional physical
characteristics resulted in the mismatch of standard bearings that NPB sold in the United States
to high temperature bearings and other specialized bearings that NPB sold in the home market of
Japan. Id.On remand, Commerce acknowledged that it made a factual error as to the timing of
NPB’s proposal but nevertheless maintained that it acted appropriately in declining to consider
that proposal during the review. Second Remand Redetermination 30. Commerce explained that
“the timing of NPB’s proposal,” id., which was five months into the review, “still presents
difficulty,” id., and that “we did not have the time to give reasonable consideration to NPB’s
proposal when it made the proposal in its response to our supplemental questionnaire,” id. at 35.
Commerce noted that in the final results of the prior administrative review it had instructed
parties that proposals for modifications to the model-match methodology, including proposals to
incorporate additional physical characteristics, must be made at the beginning of the
administrative review period. Id. at 30 (citing 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, 2004, through April 30, 2005, at 23-24
(July 14, 2006), available at http://enforcement.trade.gov/frn/summary/MULTIPLE/E6-11123-
1.pdf (“Decision Mem. AR 16”) (last visited Dec. 18, 2014). Commerce recounted in the Second
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Remand Redetermination that NPB submitted its proposal in December 2006, more than five
months after Commerce initiated the administrative review in July 2006 and after Commerce
first issued questionnaires on July 10, 2006. Id. Commerce maintained that adopting NPB’s
proposal would have affected the methodology applied to other respondents, requiring
Commerce to collect data concerning the additional characteristics from all respondents “by
incorporating them into our questionnaire.” Id. at 31. Because these data were never collected,
Commerce concluded that the record lacked the data from the other respondents that would be
needed for implementation of NPB’s proposed physical characteristics. Id. at 32.
On the reasoning Commerce has put forth, the court affirms the Department’s decision
not to adopt NPB’s proposal to incorporate additional physical characteristics into the
model-match methodology. The court is guided by two considerations. First, regarding
procedure, while the notice of a deadline provided in a prior review cannot suffice for purposes
of the current review, the court does not view the failure of Commerce to provide notice of the
deadline at the initiation of the seventeenth review as a sufficient reason to overturn the
Department’s decision to reject NPB’s proposal. When viewed solely in the context of the
seventeenth review, that decision did not violate any procedural requirement in the statute or the
Department’s regulations.5 Second, Commerce acted reasonably in light of the time constraints
5
The Department’s regulations, at 19 C.F.R. § 351.301(b)(2), require the submission of
new factual information for the final results of an administrative review by “140 days after the
last day of the anniversary month, except that factual information requested by the verifying
officials from a person normally will be due no later than seven days after the date on which the
verification of that person is completed . . . .” Nevertheless, a proposal to modify the existing
model-match methodology requires more than a submission of new factual information: a party
must request a methodological change as well as submit any new factual information on which
that party relies in support of its proposal.
Consol. Court No. 07-00377 Page 16
under which it must conduct a review6 and the obligations to ensure both consistency and
procedural fairness with respect to all parties to the review. Here, the need for consistency
supported the Department’s reasoning that it could not adopt changes to the physical
characteristics used in the methodology unless it were practicable to apply those changes to the
ball bearings of all respondents in the review. The record lacked the data with which Commerce
could have accomplished this task because NPB made its proposal at a time that did not allow
Commerce to distribute to the various respondents initial questionnaires that would solicit the
necessary information to adopt NPB’s proposal. Additionally, the Department’s obligation to
ensure procedural fairness required that all interested parties have the opportunity to consider
and comment on a proposal for a fundamental change to the methodology.
The court is not persuaded by the objections to the Department’s decision that NPB offers
in comments on the Second Remand Redetermination. NPB argues that Commerce failed to
explain why it did not have sufficient time to consider the proposal, especially in light of the
various supplemental questionnaires that Commerce issued after NPB had already submitted the
proposal for additional physical characteristics. NPB’s Comments 4-5. The court disagrees.
6
Section 751(a)(3)(A) of the Tariff Act of 1930, 19 U.S.C § 1675(a)(3)(A), provides that
Commerce shall make a preliminary determination in an administrative review:
[W]ithin 245 days after the last day of the month in which occurs the anniversary
of the date of publication of the order . . . , and a final determination . . . within
120 days after the date on which the preliminary determination is published. If it
is not practicable to complete the review within the foregoing time, the
administering authority may extend that 245-day period to 365 days and may
extend that 120-day period to 180 days. The administering authority may extend
the time for making a final determination without extending the time for making a
preliminary determination, if such final determination is made not later than 300
days after the date on which the preliminary determination is published.
Id.; see also 19 C.F.R. § 351.213(h).
Consol. Court No. 07-00377 Page 17
Commerce explained why changing the model-match methodology to expand the list of physical
characteristics was not practicable unless it could act on a proposal to do so when formulating
the initial questionnaires. Second Remand Redetermination 30-32. Specifically, Commerce
stated that a “necessary part” of any decision to adopt NPB’s proposed physical characteristics
“would be to ask for comments from all parties to ensure that each of these additional
characteristics are appropriate for examination and that the appropriate values be reported for a
particular characteristic . . . .” Id. at 31. Commerce claimed that it “would need the time,
beginning from close to the initiation of the review, to solicit and analyze comments from
interested parties and to formulate changes to the model-match methodology, if appropriate.” Id.Moreover, Commerce stated that it would want to consider comments from other interested
parties on how to integrate the proposed physical characteristics into the model-match
methodology. Id. at 37-38. It explained that although it distributed supplemental questionnaires,
these later questionnaires “sought clarification and information to correct deficiencies with
respect to parties’ responses to questions we had asked previously,” id. at 35, and not
“information relating to entirely new physical characteristics which we had never required
respondents to report previously,” id. According to Commerce, requesting information on the
additional physical characteristics five months into the administrative proceeding, which likely
would require Commerce to issue later supplemental questionnaires to collect any deficient
information, would have delayed the administrative review contrary to the deadlines imposed in
section 751(a)(3)(A) of the Tariff Act, 19 U.S.C. § 1675(a)(3)(A). Id. at 35-36. Commerce
noted that it found the need to exercise its authority to extend the deadline for the preliminary
results even though it did not request supplementary information from respondents on the
additional physical characteristics that are the subject of NPB’s proposal. Id. at 35.
Consol. Court No. 07-00377 Page 18
NPB makes the related argument that Commerce did not actually need to request
supplemental information from the other respondents, asserting that Commerce could have
extracted the additional physical characteristics (e.g., greases, added dimensions, etc.) from the
abbreviated product codes already provided by the respondents in response to questionnaires.
Second Remand Redetermination 36. The court rejects this argument based on an explanation
Commerce offered in the Second Remand Redetermination, which the court finds reasonable.
Commerce explained that it requests that respondents assign a control number to each unique
product so that Commerce can match identical merchandise based on the assigned control
numbers. Id. at 37. Commerce acknowledged that “the control numbers should reflect
differences in physical characteristics such as seals and shields,” id., but also noted that “we have
never asked respondents to report such characteristics as separate variables,” id. Commerce
explained that using the product codes to identify similar merchandise would require Commerce
to cross-reference information from the product codes to respondents’ product catalogues in a
process that would be “time-consuming and potentially fraught with error.” Id.; see also
Timken’s Comments 29. Based on these considerations, Commerce concluded that in order for
it to consider the additional physical characteristics in identifying similar merchandise,
respondents would have to report information concerning these characteristics instead of the
Department’s deriving these characteristics from control numbers. Second Remand
Redetermination 37. In view of the detailed explanation in the Second Remand
Redetermination, which the court considers reasonable, the court has no grounds to dismiss the
Department’s concerns.
NPB argues, further, that “there was no need” for it to submit its proposal at the
beginning of the seventeenth administrative reviews because, according to NPB, Commerce
Consol. Court No. 07-00377 Page 19
already had agreed to pursue NPB’s proposal in the final results of the sixteenth administrative
reviews. NPB’s Comments 3. NPB argues that because Commerce issued the final results in the
sixteenth reviews after Commerce already had initiated the seventeenth reviews, NPB would
have expected that Commerce first sought information on the additional physical design types in
supplemental questionnaires. Id. According to NPB, “it became apparent that Commerce had
retracted from its agreement to consider NPB’s proposal,” id., only after Commerce issued
supplemental questionnaires in the seventeenth reviews, id.Although NPB provides no specific citation of an “agreement” that emerged from the
final results of the sixteenth administrative reviews, the court can infer that NPB is describing a
passage from the issues and decision memorandum for those reviews (of which the court takes
judicial notice). In that passage, Commerce rejected NPB’s proposal for additional physical
characteristics and explained that NPB’s request, made in a case brief after Commerce had
issued the preliminary results of that review, had come too late and lacked details as to proposed
implementation of the proposal. See Decision Mem. AR 16 at 23-24. Commerce explained that
“[w]e intend to pursue this matter further in subsequent reviews,” Id. at 24, but the court does not
discern in this statement an actual “agreement” to consider NPB’s proposal in the next review
absent some action by NPB to submit a proposal at the beginning of the review. As defendant
points out, the discussion by Commerce in the sixteenth reviews “did not absolve NPB of its
responsibility to raise the issue in a timely manner in the subsequent reviews.” Def.’s Reply 30.
In the seventeenth reviews, Commerce could not have known whether NPB would submit such a
proposal until NPB actually did so, in December 2006.
Finally, the court rejects NPB’s argument that the Department’s decision not to
incorporate the additional physical characteristics resulted in the mismatch of standard bearings
Consol. Court No. 07-00377 Page 20
that NPB sold in the United States to high temperature bearings and other specialized bearings
that NPB sold in the home market of Japan. The Department’s statutory obligation is to ensure
that any methodology it applies is consistent with 19 U.S.C. § 1677(16). As the Court of
Appeals recognized, “Congress has granted Commerce considerable discretion to fashion the
methodology used to determine what constitutes ‘foreign like product’ under the statute.” SKF
USA, Inc. v. United States, 537 F.3d 1373, 1379 (Fed. Cir. 2008) (citation omitted). In this case,
NPB fails to substantiate its claim that the Department’s decision not to incorporate the
additional characteristics impermissibly mismatched standard bearings that NPB sold in the
United States with high temperature bearings and other specialized bearings that NPB sold in
Japan. NPB has not demonstrated that the methodology Commerce applied, and specifically the
DIFMER adjustment and a DIFMER-based limitation on matches, were inadequate to address
the differences between standard and specialized bearings so as to render the matches
impermissible under the statutory standard.
2. The Court Affirms the Department’s Decision to Reject NTN’s Proposal to Add Design
Types to the Model-Match Methodology
In contesting the Final Results, NTN claimed that the seven bearing design types
Commerce used in its methodology (angular contact, self-aligning, deep groove, integral shaft,
thrust ball, housed, and insert) were insufficient to allow for variations in NTN’s bearings.
JTEKT I, 35 CIT at __, 768 F. Supp. 2d at 1359. NTN proposed that Commerce add a number of
ball bearing design types “‘that [NTN] used in the normal course of its business’” and reported to
Commerce during the reviews. Id. (citation omitted). Commerce denied this request, explaining
that some of the requested design types are “‘distinguishable due to a single element of
difference or an element of difference that is not pertinent,’” id. (citation omitted), and that some
Consol. Court No. 07-00377 Page 21
of the separate design designations concern product characteristics, such as load direction and
rating, “for which Commerce already accounts in the new model-matching methodology,” id.Reviewing the Department’s decision not to incorporate the additional design types
proposed by NTN, the court concluded in JTEKT I that in the Final Results Commerce “did not
explain how it categorized bearings that could be classified according to more than one design
type.” Id. at __, 768 F. Supp. 2d at 1360 (stating that because “Commerce has failed to address
NTN’s argument by explaining its treatment of bearings that can fit within two design types, the
court will direct Commerce to resolve this issue upon remand.”) Id. The Court required
Commerce, on remand, to “reconsider NTN’s proposal to incorporate into the model-match
methodology additional design-type categories and explain its rejection of that proposal with
respect to individual bearings described in more than one design type.” Id. at __, 768 F.
Supp. 2d at 1364.
On remand, Commerce answered the court’s question regarding bearings classified
within more than one design type by concluding that NTN was correct in identifying two design
types applied by the model-match methodology—“thrust” ball and “angular contact” ball
bearings—for which there was “overlap.” Second Remand Redetermination 42. The
Department’s response indicates to the court, first, that an overlap between two design types is
possible under the methodology and, second, that Commerce did not have in place during the
review a procedure for resolving the question of how a respondent is to report bearings falling
within more than one design type. The Second Remand Redetermination also concludes that the
two design types NTN identified as overlapping did not result in mismatches during the review.
Id. Commerce explained that a match of two ball bearings would occur only if the bearings
share the same four physical characteristics, including design type and load direction, and that
Consol. Court No. 07-00377 Page 22
the record data of the review showed that differences in load direction prevented any mismatches
stemming from the two design types that NTN identified. Id.In its comments on the Second Remand Redetermination, NTN does not dispute the
Department’s finding that no actual mismatches resulted during the review due to the differences
in load direction that Commerce described. NTN argues, nevertheless, the design types selected
by Commerce are unsustainable because Commerce failed to instruct respondents on what to do
when reporting a ball bearing that falls under more than one design type. NTN’s Comments 8.
According to NTN, the “single example of thrust and angular contact bearings demonstrates the
importance of the Court’s directive to examine all of NTN’s reported design types . . . .” Id. at 8.
The court disagrees with NTN’s argument that the design types Commerce used in the
model-match methodology during the review are unsustainable. The overlap between two
design types identifies a flaw in the model-match methodology, as design types are intended to
describe different classes of ball bearings. Unless these design types are intended to be, and are,
mutually exclusive, some difficulties in reporting by respondents and difficulties in
administration of the model-match methodology would appear to be inevitable. Nonetheless, on
the record of this review, the court must conclude that the flaw NTN has identified is of a
conceptual nature. As previously noted, NTN’s comments do not object to the Department’s
finding that the overlap did not result in mismatches during the seventeenth review. Overlaps
between design types might pose problems in future reviews, but the court’s concern necessarily
is limited to the administrative review under consideration, and NTN has not shown during the
second remand proceeding that the conceptual flaw rendered the design types unreasonable as
applied during the review or adversely affected NTN’s margin calculation. See JTEKT Corp. v.
United States, 642 F.3d 1378, 1382 (Fed. Cir. 2011) (“in order to overturn Commerce’s
Consol. Court No. 07-00377 Page 23
determination of design types, the appellant must show that ‘Commerce’s choice of design
types . . . was unreasonable.’”) (citation omitted). In light of the standard of review the court is
to apply in adjudicating NTN’s claim centering on design types, the court must conclude that
NTN has not met the burden of showing that Commerce made an error of fact or law that
justifies another remand. Because no actual mismatches resulted from the flaw, the court can
identify no purpose to be served by issuing another remand in response to NTN’s claim.
3. The Court Sustains the Department’s Third Match Challenged by JTEKT and Grants
JTEKT’s Motion to Terminate the Preliminary Injunction Affecting JTEKT’s Entries
In JTEKT I, the court considered claims by JTEKT alleging that the revised model-match
methodology resulted in fourteen specific, impermissible matches. JTEKT I, 35 CIT at __,
768 F. Supp. 2d at 1350-51. The court dismissed JTEKT’s claims concerning thirteen of these
fourteen matches but required Commerce to reconsider the remaining claim (which involved
what was identified as the “third match”) after examining factual information that JTEKT had
included in a case brief during the administrative proceeding but that Commerce had chosen not
to consider after rejecting the information as untimely. Id. at __, 768 F. Supp. 2d
at 1351-53, 1364. The court directed a remand after concluding that Commerce had failed to
justify the decision not to consider the information contained in JTEKT’s administrative case
brief that called the third match into question. Id.In the Second Remand Redetermination, Commerce complied with the court’s order to
reconsider the third match but continued to find that impermissible mismatches did not occur.7
7
Commerce continued to maintain that it was justified in refusing to consider the factual
information contained in JTEKT’s case brief on the grounds that this information was untimely.
Second Remand Redetermination 28. Nevertheless, in response to the court’s order, Commerce
examined the previously-rejected information that JTEKT had submitted in its case brief and
concluded based on that information and information already on the record of the review,
(continued…)
Consol. Court No. 07-00377 Page 24
Second Remand Redetermination 28-29. Following the Second Remand Redetermination,
JTEKT moved for termination of the injunction on liquidation of JTEKT’s entries at issue in this
case, explaining that “JTEKT no longer seeks to address the dumping margins that were
calculated by the U.S. Department of Commerce in the administrative review that is the subject
of this litigation.” Mot. to Terminate Prelim. Inj. 1 (Oct. 23, 2014), ECF No. 183 (“JTEKT’s
Mot. to Terminate Prelim. Inj.”). Moreover, JTEKT has not objected to or otherwise commented
on the Department’s resolution of the issue posed by the third match. See JTEKT Comments 3
& n.6. The court, therefore, affirms the Department’s resolution of that issue.
The court grants JTEKT’s motion for termination of the injunction on the liquidation of
JTEKT’s entries. See Order of Inj. (Oct. 16, 2007), ECF No. 7 (enjoining liquidation of
JTEKT’s entries). According to JTEKT, defendant, through counsel, consents to this motion.
JTEKT’s Mot. to Terminate Prelim. Inj. 2. Timken filed a reply consenting to JTEKT’s motion.
The Timken Co.’s Notice of Consent to JTEKT’s Oct. 23, 2014 Mot. to Terminate the Prelim.
Inj. 1 (Nov. 5, 2014), ECF No. 187. The court will terminate the injunction that is the subject of
JTEKT’s motion. All other orders of injunction entered in this case remain in effect according to
the terms of those orders.8
(continued…)
including certain proprietary information, that the model sold in the United States and the model
sold in the home market were appropriately matched because they actually were of the same
design type. Id. at 29 (“Because both the U.S. model and home-market model for the match in
question have the same design type, the model-match methodology worked correctly and we
have not made an adjustment to our calculation of JTEKT’s margin.”).
8
The court entered orders of injunction in each of the cases consolidated under Court
No. 07-00377. See Order (Nov. 7, 2007), ECF No. 8 (Ct. No. 07-00387) (NSK’s entries); Order
(Nov. 1, 2007), ECF No. 9 (Ct. No. 07-00392) (Aisin’s entries); Order (Nov. 7, 2007), ECF
No. 10 (Ct. No. 07-00395) (NTN’s entries); Order (Nov. 7, 2007), ECF No. 9 (Ct. No. 07-00398)
(continued…)
Consol. Court No. 07-00377 Page 25
C. The Court Denies as Moot NPB’s Challenge Concerning Revocation of the Antidumping
Orders for a Portion of the Administrative Review
In its comments on the Second Remand Redetermination, NPB argued that the margins
challenged in this case were unlawful because of the Department’s action to revoke the
antidumping duty order on subject merchandise from Japan for a portion of the POR of the
seventeenth administrative review. NPB’s Comments 2, 6. NPB’s argument relates to litigation
concerning the five-year (“sunset”) reviews, conducted pursuant to 19 U.S.C. § 1675(c), of the
antidumping duty orders on ball bearings from Japan and the United Kingdom.9 The court
rejects NPB’s argument.
In June 2005, the International Trade Commission (“ITC” or the “Commission”),
pursuant to section 751(c) of the Tariff Act, 19 U.S.C. § 1675(c), began the second sunset
reviews of the ball bearing antidumping duty orders. The ITC determined that revocation of
these orders would be likely to lead to the continuation or recurrence of material injury to an
industry in the United States within a reasonably foreseeable time. See Certain Bearings From
China, France, Germany, Italy, Japan, Singapore, and the United Kingdom, 71 Fed. Reg. 51,850(Int’l Trade Comm’n Aug. 31, 2006).
In this Court, NSK and JTEKT challenged the Commission’s sunset review affirmative
injury determinations for ball bearings, NSK with respect to ball bearings from Japan and the
United Kingdom and JTEKT with respect to ball bearings from Japan. NSK Corp. v. U.S. Int’l
(continued…)
(NPB’s entries); Order (Nov. 21, 2007), ECF No. 14 (Ct. No. 07-00409) (Asahi’s entries); Order
(Nov. 21, 2007), ECF No. 12 (Ct. No. 07-00412) (Nachi’s entries).
9
Pursuant to 19 U.S.C. § 1675(c), every five years after the issuance of an antidumping
duty order, the International Trade Commission conducts a review to determine “whether
revocation of an order, or termination of a suspended investigation, would be likely to lead to
continuation or recurrence of material injury within a reasonably foreseeable time.” Id.§ 1675a(a)(1).
Consol. Court No. 07-00377 Page 26
Trade Comm’n, 716 F.3d 1352, 1356 (Fed. Cir. 2013) (“NSK”), cert. denied, 134 S. Ct. 2719(2014). After a series of remand orders, this Court affirmed negative injury determinations
issued under protest by the Commission. See NSK Corp. v. U.S. Int’l Trade Comm’n, 34 CIT __,
744 F. Supp. 2d 1359 (2010) (concerning the United Kingdom); NSK Corp. v. U.S. Int’l Trade
Comm’n, 35 CIT __, 774 F. Supp. 2d 1296 (2011) (concerning Japan). Responding to these
judicial decisions, Commerce, on July 15, 2011, revoked the antidumping duty orders on ball
bearings and parts thereof from Japan and the United Kingdom. Ball Bearings and Parts
Thereof From Japan and the United Kingdom: Revocation of Antidumping Duty Orders, 76 Fed.
Reg. 41,761 (Int’l Trade Admin. July 15, 2011). In its comments on the Second Remand
Redetermination, NPB argued that sales made after July 10, 2005 are no longer subject to the
seventeenth administrative reviews because Commerce revoked the orders involving Japan as of
that date. NPB’s Comments 6. NPB maintained that because of the revocation, the
weighted-average dumping margins were unlawfully calculated according to sales outside of the
scope of the administrative review. Id.After NPB filed comments on the Second Remand Redetermination, the Court of
Appeals reversed the decisions of this Court and vacated the judgment affirming the
Commission’s negative determinations regarding the orders on merchandise from the United
Kingdom and Japan. NSK, 716 F.3d at 1369. As ordered by the Court of Appeals, id., this Court
issued a final judgment reinstating the ITC’s affirmative injury determinations on
November 18, 2013. NSK Corp. v. U.S. Int’l Trade Comm’n, 37 CIT __, __, Slip Op. 13-143
at 1 (Nov. 18, 2013). Subsequently, Commerce reinstated the orders and resumed the
administrative reviews of those orders, including the seventeenth administrative reviews. See
Ball Bearings and Parts Thereof From Japan and the United Kingdom: Notice of Reinstatement
Consol. Court No. 07-00377 Page 27
of Antidumping Duty Orders, Resumption of Admin. Reviews, and Advance Notification of Sunset
Reviews, 78 Fed. Reg. 76,104 (Int’l Trade Admin. Dec. 16, 2013). In light of the reinstatement
of the relevant antidumping duty orders, NPB’s argument cannot be sustained.
III. CONCLUSION
For the reasons discussed in the foregoing, the court concludes that the Second Remand
Redetermination conforms to the court’s remand order in JTEKT I and is in accordance with law.
In accordance with this Opinion, the court will enter a judgment affirming the Second Remand
Redetermination. In accordance with the court’s opinion and order in JTEKT I, 35 CIT
at __, 768 F. Supp. 2d at 1363-64, the court’s judgment will also affirm the Department’s
reconsideration of Aisin’s constructed export price and recalculation of Aisin’s antidumping duty
margin in the First Remand Redetermination.
/s/Timothy C. Stanceu
Timothy C. Stanceu
Chief Judge
Dated:'HFHPEHU
New York, NY