                                             Slip Op. 14-13

                  UNITED STATES COURT OF INTERNATIONAL TRADE

   JTEKT CORP.,

                          Plaintiff,

                  v.
                                                         Before: Timothy C. Stanceu, Judge
   UNITED STATES,
                                                         Consol. Court No. 06-00250
                          Defendant,

                  and

   THE TIMKEN CO.,

                          Defendant-Intervenor.


                                       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]

                                                                   Dated: February 10, 2014

        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.
Consol. Court No. 06-00250                                                         Page 2

        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,

       1
         Six actions are consolidated under Consolidated Court Number 06-00250: Nippon
Pillow Block Co. Ltd. v. United States (Ct. No. 06-00258); Timken US Corp. v. United States
(Ct. No. 06-00271); NSK Ltd. v. United States (Ct. No. 06-00272); NTN Corp. v. United States
(Ct. No. 06-00274); and Nachi-Fujikoshi Corp. v. United States (Ct. No. 06-00275). Order
Granting Mot. to Consol. Cases (Oct. 2, 2006), ECF No. 17.
Consol. Court No. 06-00250                                                      Page 3

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 normal



       2
        American NTN Bearing Manufacturing Corporation, NTN Bearing Corporation of
America, NTN Bower Corporation, NTN Corporation, NTN Driveshaft, Inc., and NTN-BCA
Corporation (collectively, “NTN”) are defendant-intervenors in Timken US Corporation v.
United States (Ct. No. 06-00271), which is consolidated in this action.
Consol. Court No. 06-00250                                                          Page 4

value 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 __,
Consol. Court No. 06-00250                                                          Page 5

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 having

       3
         The Court of Appeals for the Federal Circuit (“Court of Appeals”) held that Commerce
had not provided a satisfactory explanation for the Department’s different interpretation of
19 U.S.C. § 1677(35) in the antidumping administrative review and investigation contexts. See
JTEKT Corp. v. United States, 642 F.3d 1378, 1384-85 (Fed. Cir. 2011); Dongbu Steel Co. v.
United States, 635 F.3d 1363, 1372-73 (Fed. Cir. 2011).
Consol. Court No. 06-00250                                                             Page 6

discontinued 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 one claim, and dismissal of the remaining claims. Timken’s Mot. for Dismissal 1.

                                           II. DISCUSSION

       The court exercises jurisdiction under section 201 of the Customs Courts Act of 1980,

28 U.S.C. § 1581(c) (2006), pursuant to which the court reviews actions commenced under

Section 516A of the Tariff Act, 19 U.S.C. § 1516a, including an action contesting the final

results of an administrative review that Commerce issues under Section 751 of the Tariff Act,

19 U.S.C. § 1675(a).4




       4
        Unless otherwise indicated, all statutory citations herein are to the 2006 edition of the
U.S. Code.
Consol. Court No. 06-00250                                                            Page 7

       As discussed below, the court relieves Commerce of the directive concerning zeroing in

the Second Remand Order based on the intervening decision of the Court of Appeals in Union

Steel. The court, however, does not adopt the additional measures sought in Timken’s second

motion. See Timken’s Mot. for Dismissal 1. The court maintains the directive in the Second

Remand Order as to the claim brought by NTN pertaining to additional design types in the

Department’s model-match methodology. See JTEKT II, 35 CIT at __, 780 F. Supp. 2d

at 1371-72.

                    A. Motions for Reconsideration or Relief from Judgment

       Pursuant to 28 U.S.C. § 2646 and USCIT Rule 59(a)(1)(B), the court may, on a party’s

motion or sua sponte, grant rehearing. On a party’s motion, the court may grant rehearing “for

any reason for which a rehearing has heretofore been granted in a suit in equity in federal court.”

USCIT R. 59(a)(1)(B).5 The court may also grant a timely motion for rehearing “for a reason not

stated in the motion” or on its own initiative “[a]fter giving the parties notice and an opportunity

to be heard.” Id. R. 59(d). It is within the court’s discretion to grant or deny relief under Rule 59

and in doing so, the court may exercise “all the powers in law and equity of . . . a district court of

the United States,” 28 U.S.C. § 1585. See Nan Ya Plastics Corp., Am. v. United States,

37 CIT __, __, 916 F. Supp. 2d 1376, 1378 (2013).




       5
          The moving parties also requested relief under USCIT Rule 60, a rule inapplicable
because the court’s July 29, 2011 decision was not a “final judgment, order, or proceeding” as
required for relief under that rule. See Rhone Poulenc, Inc. v. United States, 880 F.2d 401, 406
(Fed. Cir. 1989) (noting that relief under Rule 60(b) is available only after the court “has entered
a final judgment or issued a final order”); Badger-Powhatan v. United States, 808 F.2d 823, 825
(Fed. Cir. 1986) (determining that a remand order is not a final appealable decision).
Consol. Court No. 06-00250                                                          Page 8

       Defendant and Timken request that: (1) the court provide them with relief from the

directive concerning zeroing contained in the Second Remand Order; and (2) the court affirm the

Final Results with respect to zeroing. Timken’s Mot. 4-5; Def.’s Mot. 7.

   1. The Court Relieves Defendant from the Directive Concerning Zeroing Contained in the
                                   Second Remand Order

       In light of the intervening decision by the Court of Appeals in Union Steel, the court

relieves defendant from the directive concerning zeroing contained in the Second Remand Order.

In Union Steel, the Court of Appeals affirmed a decision of this Court that held reasonable the

Department’s explanation for the continued use of zeroing in administrative reviews despite the

Department’s having eliminated the methodology in antidumping investigations. Union Steel,

713 F.3d at 1103. As defendant notes in its status report following the decision in Union Steel,

that decision effected an intervening change in the controlling law. Def.’s Status Report 2.

Based on the decision in Union Steel, the court concludes that defendant and Timken are entitled

to relief from the court’s Second Remand Order under USCIT Rule 59(d) for reasons not stated

in the parties’ motions.6 The court therefore relieves defendant from the instructions in the

Second Remand Order such that Commerce will not be required, at least at this time, to

reconsider or provide an explanation of the use of zeroing in the sixteenth administrative

reviews.



       6
         Defendant and Timken asserted that they are entitled to relief because at the time the
Final Results were published, Commerce could not have explained the Department’s policy of
distinguishing between antidumping investigations and administrative reviews because it had not
yet adopted the policy. Def.’s Mot. for Expedited Recons. or Relief from J. 1-2, 5-7
(Aug. 12, 2011), ECF No. 173 (“Def.’s Mot.”); The Timken Co.’s Mot. for Recons. or Relief
from J. 3-4 (Aug. 10, 2011), ECF No. 171. Defendant also argued that due to Court of Appeals
precedents upholding zeroing when Commerce used the methodology in both investigations and
administrative reviews, the court was required to sustain the use of zeroing when ruling on the
first remand redetermination Commerce issued in this litigation. Def.’s Mot. 6.
Consol. Court No. 06-00250                                                            Page 9

          2. The Court Declines to Affirm the Final Results as to Zeroing at this Time

       Because it appears that the claims challenging zeroing in this case are indistinguishable

from those rejected in Union Steel, in which the Court of Appeals affirmed the Department’s use

of zeroing, the court is considering whether to affirm the Final Results as to zeroing. The court,

however, will hold in abeyance any ruling on whether to affirm the Final Results with respect to

zeroing until the parties have had “an opportunity to be heard” in accordance with the notice

requirement of USCIT Rule 59(d). The court will allow the parties the opportunity to submit,

within thirty days, supplemental briefing on the narrow question of whether the holding of Union

Steel is dispositive of plaintiffs’ zeroing claims, and if not, what further action the court should

take to resolve those claims. Any such submission is voluntarily.

                     B. Timken’s Motion for Deconsolidation and Dismissal

       Timken’s motion for deconsolidation and dismissal is in a large part repetitive of

Timken’s earlier motion for reconsideration or relief. The later motion differs from the earlier

motion only in that the later motion seeks deconsolidation and dismissal of various claims. See

Timken’s Mot. for Dismissal 3. The court’s decision on Timken’s earlier motion addresses the

issue Timken raises in the later motion concerning the effect of the decision of the Court of

Appeals in Union Steel.

       As to the additional requests in Timken’s second motion (i.e., for deconsolidation and

dismissal of claims), the court views these requests as premature and better resolved when the

court reviews the second remand redetermination that Commerce issues in accordance with this

Opinion and Order. By requesting dismissal of various claims, Timken seeks a final

determination or judgment as to some, but not all, claims in this consolidated case. Under

USCIT Rule 54(b), entering a partial judgment concerning only some of the claims in a case is
Consol. Court No. 06-00250                                                           Page 10

appropriate only where “there is no just reason for delay.” USCIT R. 54(b). The court does not

conclude that “there is no just reason for delay” so as to justify piecemeal adjudication of this

case, especially because plaintiffs have not yet had the opportunity, following Union Steel, to be

heard on whether the court should affirm the Final Results as to zeroing. The court therefore

declines, at this time, to dismiss any claims in this case.

                           C. NTN’s Proposed Design Type Categories

       The court’s Second Remand Order instructed Commerce to reconsider NTN’s proposal

that Commerce incorporate additional design type categories in applying the model-match

methodology “to the extent necessary to correct any errors revealed by the Department’s review

of the record evidence.” JTEKT II, 35 CIT at __, 780 F. Supp. 2d at 1371-72. Defendant and

Timken did not seek relief from this aspect of the court’s Second Remand Order. Therefore, the

directive to Commerce concerning NTN’s proposed design type categories, as set forth in the

court’s Second Remand Order, remains in effect. See id.

                          D. Defendant’s Motion for Extension of Time

       Due to changes in the scope of the court’s Second Remand Order announced herein and

the time that has passed since the court’s decision in JTEKT II, the court deems it appropriate to

grant defendant’s request for an extension of time for the filing of a second remand

redetermination, to which no party objected. See Def.’s Extension of Time Mot. 1. The court

allows, per that request and the parties’ proposed schedule, ninety days from the date on which

the court issues this Opinion and Order. Def.’s Status Report 1; Pls.’ Status Report 6; Timken’s

Mot. for Dismissal 2.
Consol. Court No. 06-00250                                                           Page 11


                                  III. CONCLUSION AND ORDER

       Therefore, upon consideration of defendant’s Motion for Expedited Reconsideration or

Relief from Judgment, Timken’s Motion for Reconsideration or Relief from Judgment,

defendant’s Motion for Extension of Time, Timken’s Motion for Deconsolidation and Dismissal

and for Entry of Scheduling Order, plaintiffs’ responses thereto, and all other papers and

proceedings herein, and upon due deliberation, it is hereby

         ORDERED that the U.S. Department of Commerce (“Commerce” or the “Department”)
is relieved from the directive in the July 29, 2011 Opinion and Order issued in JTEKT Corp. v.
United States, 35 CIT __,__, 780 F. Supp. 2d 1357, 1371 (2011) (“JTEKT II”), instructing
Commerce to reconsider its decision to use zeroing during the sixteenth administrative reviews
and either alter that decision or set forth an explanation of how the language of 19 U.S.C.
§ 1677(35) permissibly may be construed in one way with respect to investigations and the
opposite way with respect to administrative reviews; it is further

       ORDERED that Commerce shall comply with the Opinion and Order in JTEKT II,
35 CIT at __, 780 F. Supp. 2d at 1371, with respect to NTN’s proposal to incorporate additional
bearing design types in the Department’s model-match methodology and redetermine, as
appropriate, the weighted-average dumping margin applied to NTN; it is further

        ORDERED that Timken’s motion to deconsolidate this case and dismiss certain claims
is denied and that Timken’s request that the court enter a scheduling order is granted; it is further

        ORDERED that any party may submit, within thirty (30) days from the date of this
Opinion and Order, a brief on the question of whether Union Steel v. United States,
713 F.3d 1101 (Fed. Cir. 2013), is dispositive of the zeroing claims in this case and, if not, what
further action the court should take to resolve those claims; it is further

       ORDERED that Commerce shall file its second remand redetermination within ninety
(90) days of the date of this Opinion and Order; it is further

        ORDERED that parties may file comments to the second remand redetermination within
thirty (30) days of the date on which such redetermination is filed; and it is further
Consol. Court No. 06-00250                                                      Page 12

        ORDERED that defendant may file responses to the comments within thirty (30) days of
the date on which the last such comment is filed.

                                                        /s Timothy C. Stanceu
                                                        Timothy C. Stanceu
                                                        Judge
Dated: February 10, 2014
       New York, New York
