JTEKT CORP ORATION and KOYO

CORP ORATION OF U .S.A. , et al.,

Plaintiffs,

v. UNITED STAT ES , Def endant, and THE T IMK

EN COMP ANY , Def endant- Interve nor.

Slip Op. 11-52 UNITED STAT ES COURT OF INTERNATIONAL TRADE

Before: Tim othy C. Stanceu, Judge Consol. Court No. 07-00377

OP INION AND ORDER [Orderingrelief

in the form of a

rema nd on cer tain of plaintiffs’ c laims contesting the final results of the se ventee nth administrative revie ws of antidumping duty order s on ball bear ings a nd parts ther eof] Dated: Ma y 5, 2011 Sidley Austin, LLP

( Neil R. Ellis and Jill Caiazz o ) for plaintiffs J TEKT Corporation and Koy o Corporation of U.S.A. Bake r & McKenzie

, LLP (Washington, District of

Columbi a) (

Kevin J. Sullivan and Kevin M. O’

Brien ) for plaintiffs FY H B ear ing Units USA, Inc. and N ippon Pil low Bloc k Company L td. Crowell & Moring, LLP

( Matthew P. Jaffe ) for

plaintiffs NSK Corporation, NSK Ltd., and NSK Prec ision America, I nc. Bake r & McKenzie

, LLP ( Kevin M. O’

Brien, Christi ne M. Streatfeild, Diane A

. MacD onald , and Joseph W . LaFramboise ) for

plaintiffs Americ an NTNBe aringManufa cturing Corp., NTN B earing Corpor ation of Amer ica, NTN B ower Corporation, NTN Corpor ation, NTN Drivesha ft, Inc., and N TN-B CA Corporation.Consol. Court No. 07-00377 P age 2

Crowell & Moring, LLP

( Daniel J. Cannistra and Alexande r H. Schae fer) for plaintiffs Aisin Seiki C ompany , L td. and Aisin Holdings of Americ a, Inc. Riggle &Craven (

David A. Riggle and Shitao Zhu ) for plaintiff Asahi Seiko Co., L td. O’Me lveny

&Mye rs, LL P

( Nausheen Hassan and Grey son L. Bryan ) for

plaintiffs Nac hi Tec hnology , Inc., Na chi-F ujikoshi C orporation, and Nac hi America , Inc. Tony W est , Assistant Attorney

Gene ral, JeanneE. Davidson , Direc tor, Patricia M. McCarthy , Assistant Director , Commercial L itigation B ranc h, Civil Division, United St ates Depa rtment of Just ice (

Loren M. Prehe im and Claudia Burke ); Joanna Theiss , Aaron Kleiner , Thomas Beline , Brian Soiset , and Deborah R. King , Offic e of Chief Counsel for Import Administration, United States Depar tment of Commerce , of counse l, for def endant. Stewart a nd Stewart ( Gee rt M. De Pre st , TerenceP. Stewart , W illiam A. Fennell , and Lane S. Hurewitz ) for

plaintiffs and de fenda

nt-intervenor

The Timken Company

. Stanceu, Judge : J TEKT Corporation, formerly Koy o Seiko Company , L td., and Koyo 1 Corporation of U.S.A. ( collectively , “JTEKT”) brought an ac tion under sec tion 201 of the Customs Court Act of 1980, 28 U.S.C. § 1581(c) (2006), to conte st the final deter mination of the United States Depa

rtment of Commerce (“Commerc e” or the “De partment” ) in the seve nteenth administrative re views (“ AFB s 17 review s” or “ AFB s 17”) of antidumping duty

order s on ball bear ings a

nd parts ther eof ( “subjec t mercha ndise”) f rom Fr ance , Ger

many , Italy , J apan, Singapor e, and the United King dom. Summ ons 1; Ball Bearings & Parts Thereof from France, Germany , Italy, Japan, Singapore, & the United Kingdom: Final Results of Antidumping Duty Admin. Rev iews & Rescission of Rev iew in Part , 72 Fe d. Reg . 58,053, 58,053 (Oc t. 12, 2007) (“ Final Results ”); Issues &Dec ision Mem. for the Antidumping Duty Admin. Re views of Ball Bearings &Parts Thereof from France, Ge rmany, Italy, J apan, Singapore, &the United Notice of Final Results of Anti dumping Duty Changed-Circumstanc es Rev iew: Ball 1 Bearings &Parts Thereof from Japan , 71 Fe d. Reg . 26,452, 26,452-53 (Ma y 5, 2006) (f

inding that J TEKT is the succ essor-in- interest to Koyo Seiko Company , L td.) (“ JTEKT-Koyo Succe

ssor Notice ”).Consol. Court No. 07-00377 P age 3

Kingdom for the Period of Review May 1, 2005, through April 30, 2006 , at 2 (Oc t. 4, 2007) (“ Dec ision Mem. ”). The revie ws applied to imports of subject mer chandise made dur ing the period of Ma

y 1, 2005 throug h April 30, 2006 (“pe riod of re view” or “POR”). Final Results , 72 Fe d. Reg . at 58,053. Upon the motion of defe ndant-interve nor The T imken Company (“Timken” ) to consolidate, the c ourt consolidated JTEKT’s ac tion with si x other c ases. Timken U S Corporation’s Mot. to Consolidate 1 (“Mot. to Consolidate”). The six other g roups of plaintiffs in the consolidated c ases ( ref err ed to in this Opinion and Order collectively

with their aff

iliates)

are Asahi Seiko Co., L td. (“Asa hi”); Aisin Seiki Com pany , L td. and Aisin Holdings of Americ a, Inc. (c ollectively

“Aisin”); Na chi Tec hnology , Inc., Na chi-F ujikoshi C orpora tion, and Nac hi Americ a, Inc. (c ollectively “Na chi”) ; FYH B ear ing Units USA, I nc. and N ippon Pil low Bloc k Company L td. (collec tively , “NPB ”); Ame rica n NTN B ear ing Ma

nufac turing Corp., NTN Be aringCorporation of Ame rica , NTN B ower Corporation, NTN Corpor ation, NTN Dr iveshaft, Inc., and N TN-B CA Corporation (c ollectively , “NTN ”); a nd NSK Corporation, NSK L td., and NSK Precision Amer ica, Inc. (c ollectively , “NSK”)

. Be fore the cour

t are the motions of eac h of the seve n plaintiffs for judg ment on the ag ency rec ord, submitted under USCI T Rule 56.2. Also befor e the c ourt are three other motions. Def endant- intervenor

moves to vacate the pre liminary injunction ag ainst the liquidation of entries with re spect to Na chi. Timken’s Mot. to Vac ate Pre lim. I nj. with respec t to Nachi (“Timken Mot.” ). NTN f iled a motion for a sta

y pendingfurther

administrative ac tion on, or alternatively

for f urther br iefingon, the zeroingissue, which motion is opposed by defe ndant and defe ndant-interve nor. Pl.’s Mot. to S tay Fur ther Proce eding s Pending the Finality of Ne wConsol. Court No. 07-00377 P age 4

Antidumping Mar g in Methodology or, in the Alternative, Mot. to Allow Further Br iefing

. (“N TN Mot. to Stay ”). N TN filed a motion to reply

to defe ndant’s and de fenda nt-intervenor ’s opposition. P l.’s Am. Unopposed Mot. for L eave to File a Re ply to Def.’ s Opp’n to the Mot. to Stay (“N TN Mot. to Reply ”). Aisin, Asahi, J TEKT, Na chi, NPB, N SK, and NTN ( collectively , “plaintiffs” ) asse rt claims contestingvarious dec isions and determinations in the Fina l Results t hat af fec t the antidumping duty

order involving Japan. The c ourt addre sses these c laims in the respec tive sections of Part I Iof this Opinion and Orde r, as f ollows: (A) cla ims of J TEKT, NPB , NTN, Aisin, and Nac hi challeng ing the application of Commerc e’s “ zeroing ” methodolog yto nondumped sales; (B ) cla ims challeng ing the Depa rtment’s re vised model-match me thodology , the adoption of which JTEKT, NPB, NSK, a nd NTN oppose g ener ally and the spe cific a

pplication of which JTEKT, NPB, NSK, NTN, a nd Asahi cha lleng e in ce rtain re spects; (C) NSK’s c laim that Commerce unla

wfully deducte d cer

tain benef it ex penses whe n deter

mining the c onstructed export price of N SK’s subject merc handise; and ( D) the r esolution by Commerce in a rede termination upon voluntary rema nd (“F irst Remand Redeter mination”) of a

n issue aff

ecting the construc ted export price ( “CEP”) for cer tain U.S. sales of Aisin’s mer chandise . Def endant and def endant- intervenor

oppose plaintiffs’ Rule 56.2 motions on various g rounds. The c ourt rema

nds the Fina l Results for rec onsideration in re sponse to the claims of the five plaintiffs who c halleng e the De partment’s use of the zeroing methodology . The c ourt also direc ts that Comm erc e re consider the deter minations challeng ed in ce rtain cla ims by J TEKT, NPB a nd NTN. The court a ffirms the de cision made in the F irst Remand Redeter minationConsol. Court No. 07-00377 P age 5

perta ining to the CEP for c erta in U.S. sales of Aisin’s merc handise. The court de nies Timken’s motion to vacate the pr eliminary injunction with respect to Na chi. I. B A C K G R O U N D The c ourt sets forth be low the proc edura l history of the a dminist rative a

nd judicial proce eding s in ge nera l terms common to all plaintiffs. Additional backg round information specific to the individual claims is presented in Part I Iof this Opinion and Orde r. A. Administrative Proce eding s On May 15, 1989, Commerce issued a ntidumping duty

order s on imports of ball bear ings from F ranc e, Ge rmany , I taly , J apan, a nd the United King dom. On J uly 3, 2006, Commerce 2 initiated the sevente enth set of a dminist rative r eviews of these orde rs. Initiation of Antidumping &Countervailing Duty Admin. Rev iews , 71 Fe d. Reg . 37,892, 37,900 (Jul y 3, 2006); Dec ision Mem

. 2. Commerce issued the preliminary results of the a dminist rative r eviews ( “Preliminary Results”) on J une 6, 2007. Ball Bearings & Parts Thereof from France, Ge rmany, Italy, J apan, Singapore, &the United Kingdom: Prelim. Re sults of Ant idumping Duty Admin. Rev iews & Intent to Resc ind Revie w in Part , 72 Fe d. Reg . 31,271 (June 6, 2007) (“ Prelim. Results ”). O n October 12, 2007, Commerce issued the Final Results and incor porate d by

ref ere nce the rein a

n

Antidumping Duty Orders: Ball Be arings, Cylindri cal Roller Bearings, Spherical Plain 2 Bearings, &Parts Thereof From France , 54 Fe d. Reg . 20,902 (May 15, 1989); Antidumping Duty Orde rs: Ball Bearings, Cylindrical Roller Bearings, & Spherical Plain Bearings &Parts Thereof From the Fe deral Republic of Ge rmany , 54 Fe d. Reg . 20,900 (May 15, 1989); Antidumping Duty Orders: Ball Be arings & Cylindrical Roller Bearings, &Parts Thereof From Italy , 54 Fe d. Reg . 20,903 (May 15, 1989); Antidumping Duty Orders: Ball Be arings, Cylindrical Roller Bearings, & Spherical Plain Bearings, &Parts Thereof From Japan , 54 Fe d. Reg . 20,904 (May

15, 1989); Antidumping Duty Orders & Amendm ents to the Final Determ inations of

Sales at Less Than Fair

Value: Ball Bearings, &Cylindrical Roller Bearings &Parts Thereof From the United Kingdom , 54 Fe d. Reg . 20,910 (May 15, 1989).Consol. Court No. 07-00377 P age 6

internal issues and de cision memorandum (“ Dec ision Memorandum”) c ontaining the Depa rtment’s ana ly sis of issues raised by interested pa

rties. Final Results , 72 Fe d. Reg

. at 58,054-55; Dec ision Mem. In the Fina l Results, C ommerce assig ned plaintiffs the f ollowing dumping mar g ins: Aisin, 6.15%; Asahi, 1.28%, J TEKT, 15.01%; Na chi, 11.46%; NPB, 26.89% ; NSK, 3.66%; and NTN , 7.76%. Final Results , 72 Fe d. Reg . at 58,054.

B. Judicial Review in the Consolidated Actions J TEKT c ommenced this ac tion on October 12, 2007. Summons; Com pl. On November

7, 2007, the cour

t gr anted the c onsent motion of Timken to intervene on be half of defe ndant. Orde r, Nov. 7, 2007. Upon de fenda nt-intervenor ’s motion, the court orde red consolidation under Consolidated Court No. 07-00377 of JTEKT Corp. v. United States , No. 07-00377, NSK L td. v. United States , No. 07-00387, Aisin Seiki Co. v. United States , No. 07- 00392, NTN

Corp. v. United States , No. 07-00395, Nippon Pill ow Block Co. v. United States , No. 07-00398, Asahi Seiko Co. v. United States , No. 07-00409, a nd Nachi-Fujikoshi Corp. v. United States , No. 07-00412. Or der, July 29, 2008; Mot. to C onsolidate 1. J TEKT, NPB , NSK, NTN, Na chi, and Asa

hi eac h filed a motion for judgment upon the ag ency rec ord in Novembe r 2008, which motions defenda nt and def

endant- intervenor

oppose in the entire ty

. 3

Mem. of P. & A . in Supp. of Mot. of Pl s. J TEKT Corp. & Koy o Corp. of U.S.A. for J

. 3 on the Ag ency

R. (“JTEKT Mem.”); Mem. in Supp. of the Mot. for J. upon the Ag ency R. Submit ted on beha lf of Pls. Nippon Pi llow Block Co. Ltd & F YH B ear ing Units USA, I nc. (“N PB Mem.”) ; Mem. of P. & A. in Supp. of NSK’s Mot. for J . on the Ag ency

R. (“NSK Mem.”); Me m. in Supp. of Mot. for J . on the Ag ency R. Subm itted on behalf of Pls. NTN Corp., NTN B ear ing Corp. of

Am., Am. NTN B ear ing Mf g . Corp., NTN-B CA Corp., NTN-B ower Corp., & N TN Drive shaft, Inc. (“NTN Mem.” ); Mem. in Supp. of a Mot. for J. on the Ag ency R. Submit ted by

Pl. Asahi Seiko Co., L td., Pursuant to Rul e 56.2 of the Rules of the U.S. Ct. of Int’l Trade (“A sahi Mem.”) ; Br. of Pls. Nachi-F ujikoshi C orp., Na chi Amer ica, Inc. & Nac hi Tec hnology , Inc. in Supp. of Rule 56.2 Mot. for J. on t he Ag ency R. (“Na chi Mem.”) ; Def.’ s

(continued...)Consol. Court No. 07-00377 P age 7

The c ourt held an in-c amer a ora l argument on August 20, 2009. On September 3, 2009, upon a conse nt motion for voluntary rema nd filed by

defe ndant, the cour

t ordere d Commerce to

rec onsider the methodolog y it used to calculate the construc ted export price f or Aisin. Orde r, Sept. 3, 2009 (“Aisin Remand Or der” ). Commerce submitt ed the F irst Remand Redeter mination on Dec ember

16, 2009, as to which Aisin ra ised no objection and de fenda nt-intervenor

took no position. R edete rmination Pursuant to Remand (“F irst Remand Redeter mination”); Aisin’s Comments on the Dec. 16, 2009 U.S. De p’t of Commerce Remand De termination 1 (“A isin Comments”); The Timken Co.’s Comments on the Dec . 16, 2009 U.S. Dep’t of Commerc e Remand Redete rmination 1 (“Timken Comments”). Timken filed its motion t o vacate the injunction ag ainst liquidation as to Nachi on Dec ember

7, 2010. Timken Mot. NTN filed its motion to st ay or, alter natively , for f

urther briefing , on J anuar

y 28, 2011. NTN Mot. to Stay . On Fe bruar y 28, 2011, NTN filed its motion for lea ve to file a

reply to Timken’s and de fenda nt’s opposition t o its mot ion to stay or for further briefing . NTN Mot. to Reply

. II. D I S C U S S I O N The c ourt exercises jurisdiction pursuant to 28 U.S.C. § 1581(c) , under which the Court of International Trade is gr anted e x clusive jurisdiction of any civil action commenc ed under section 516A of the Tarif f Ac t of 1930 (“T ariff

Act” or the “Ac t”), 19 U.S.C. § 1516a (2006)

. The c ourt revie ws the F inal Results on the basis of the ag ency rec ord. SeeCustoms Court Act, § 301, 28 U.S.C. § 2640(b) (2006); 19 U.S.C. § 1516a(b) (1)( B) (I ) (2006) . Upon such re view, the (...continued) 3 Opp’n to Pls.’ Mots. for J . on the Ag ency R. (“De f. Resp.”) ; Resp. of the Timken Co. & Timken US L L C to the Rule 56.2 Mots. of J TEKT Corp., e t al. (“D ef.- Interve nor Resp.”)

.Consol. Court No. 07-00377 P age 8

court must “hold unlawf

ul any deter mination, finding, or c onclusion found,” 19 U.S.C. § 1516a(b) (1), “ to be unsupported by substantial evidence on the re cord, or otherwise not in

acc ordanc e with law.” Id. § 1516a(b) (1)( B) (I ). “Substantial evidenc e is more than a mere scintilla. I t means such r eleva nt evidence as a r easona

ble mind might ac cept a s adequate to support a conc lusion.” Consol. Edison Co. v. NLRB , 305 U.S. 197, 229 (1938).

A. Challeng es to the De partment’s Z eroing Procedur e Commerce a

pplied its “zeroing” methodology in AFB s 17, under whic h it assigne d to U.S. sales made a

bove norma l value a dumpingmarg in of zero, instead of a neg ative mar g in, when c alculatingweighted ave rag e dumping marg ins. Dec ision Mem. 8. J TEKT, NPB , NTN, Aisin, and Nac hi challeng e the use of this zeroing me thodology in AFB s 17, arguing that use of the zeroingmethodology

in an administrative re view violates the U .S. antidumping laws a nd is inconsistent with international obligations of the United States. Asahi also included in its complaint a c laim challeng ing the use of zeroing . Asahi declined to r aise a

ny issue as to zeroing in its R ule 56.2 motion for judg ment upon the ag ency

rec ord but then attempted to ra ise the zeroingissue in its reply brief. A sahi Compl. ¶¶ 12-16; Asahi Mem.; Reply

Br . in Supp. of the Mot. for J . on the Ag ency R. Subm itted by

Pl. Asahi Seiko Co., L td., Pursuant to Rul e 56.2 of the Rules of the U.S. Ct. of I nt’l Trade 5-6 (“ Asahi Reply ”). I

n these c ircumstance s, no motion for judgme nt on the ag ency rec ord is befor e the c ourt on the zeroingclaim in Asahi’s c omplaint, which claim is now aba ndoned. SeeUSCI T Rule 56.2(c)

. Nac hi argues that the United States Court of A ppeals for the Fe dera l Circuit (“Court of Appea ls”), althoug h upholding the D epar tment’s use of zeroingin administrative revie ws, didConsol. Court No. 07-00377 P age 9

not conclude that zeroing is “ the correc t application of the statute” a nd, there fore , that this court must consider the issue a

new. Na chi Mem. 9 (e mphasis added) (“Thus, e ven thoug h the Fe dera l Circuit has found the pr actice of zeroinga re asonable application, it has bee n silent as to whether zeroing is the corr ect a

pplication of the statute, a nd this Court m ust answer that question as a matter of f

irst impression.”). Na chi ar g ues, fur ther, that Commerc e’s inter pretation of the statute to allow zeroing in administrative revie ws merits no defe renc e bec ause it is an inconsistent interpre tation of the same la ng uag e that applies in investig ations, in which Commerce no longe r applies zeroing . Nac hi Mem. 10. Other pla intiffs urg e the c ourt to consider the eff ect of decisions of the World Tra de Org anization (“WTO”) holdingzeroing impermissible under the WTO-r elated oblig ations of the United States. J TEKT Mem. 37- 38; NPB Mem. 20-21; NTNMem. 4-8. The y cite stateme nts by the United States that the United States intends to comply with its W TO oblig ations, J TEKT Mem. 38; NPB Mem. 21-22; NTN Mem. 5-8, a nd challeng e what they

view as f ailure by the United States to implement certa in adver se WTO decisions, NPB Me m. 22; NTN Mem. 8-9; Nac hi Mem. 6-9. NTN ur g es the c ourt to “take this opportunity to hold that the United States has, in fac t, repudiate d the pra ctice of zeroing and to disallow its use in this review.” N TN Mem. 8. Simi larly , Aisin argues that bec ause Commerc e “a cknowledg ed the f ault of its zeroing methodology

by ag ree ing to c hang e its prac tice in investig ations,” Commerce should impl ement the dec ision of the WTO “by eliminating zeroingin the context of this admini strative re view.” Mem. of L aw of

Pls. Aisi n Seiki Co., L td. & Aisin Holding s of Am., Inc. in Supp. of Rule 56.2 Mot. for J. on t he Ag ency R. 12-13 (“A isin Mem.”); see also J TEKT Mem. 37- 38. J TEKT a ndConsol. Court No. 07-00377 P age 10

NPB urg e the c ourt to remand the Final Results to allow Commerce to consider implementinga WTO decision adver se to zeroing . J TEKT Mem. 39; NPB Mem. 22. The Court of Appe als, in various circ umstances, pr eviously has upheld the D epar

tment’s use of zeroingin administrative revie ws. SKF USA Inc. v . United States , 630 F.3d 1365, 1375 (F ed. Cir. 2011) (“ SKF II ”); Koyo Seiko Co. v. U

nited States , 551 F.3d 1286, 1290- 91 (F ed. Cir. 2008) (“ Koyo III ”); NSK L td. v. United States , 510 F.3d 1375, 1379- 80 (F ed. Cir. 2007). Dra wing a fa ctual distinction with prior holdings, the Court of A ppeals re cently

held that the final re sults of an administrative re view in which zeroingwas used must be r emande d to direct Commerce to e x plain its int erpr eting the languag e of 19 U .S.C. § 1677(35) inconsistently with respe ct to the use of zer oing in investig ations and the use of zeroing in administrative revie ws. Dongbu Steel Co. v. U

nited States , 635 F.3d 1363, 1371- 73 (F ed. Cir. 2011). B asingits holdi ng on the lack of

a satisfa ctory

explanation, the Court of Appea ls held that the judg ment of the Court of International Trade aff irming the use of zeroingin the administrative re view at issue in that case must be set aside. The Court of Appea ls reasone d that “[a]lt houg h 19 U.S.C. § 1677(35) is ambiguous with respec t to z eroing and Commerce play s an important role in resolvingthis ga

p in the statute, Commerce ’s discre tion is notabsolute” a nd conclude d that “Commerce must provide an explanation for why the statutory

languag e supports its inconsistent interpre tation.” Id. at 1372. The Court of A ppeals c ommented that “[i] t may be that Commerce cannot justify

using opposite inter

pretations of 19 U.S.C. § 1677(35) in investigations and in administrative re views.” Id . at 1373. The c ourt conc ludes a re mand is appropr iate in this case to direc t Comm erc e to provide the explanation contemplated by the Court of Appe als in Dongbu. On re mand, the cour

t will direct Commerce to rec onsider and modify its decision to applyConsol. Court No. 07-00377 P age 11

zeroing in AFB s 17 or, alter natively , to set forth an e x planation of how the languag e of the statute as applied to the zer oing issue ma y be construe d in one way

with respec t to investigations and the opposite wa

y with respec t to administ rative r eviews. Refer ringto a Fe dera l Reg ister notice published late last y ear by the Depa rtment on the discontinuation of zeroing in administrative revie ws, NTN moves f or a stay of this case pending a fina l notice of the D epar tment’s decision to eliminate zeroingin administrative revie ws, or, alternatively , the opportunity to submit additional briefingon the zeroingissue. NTN Mot. to Stay 1-2 (c iting Antidumping Procee dings: Calculation of the W eighted Av erage D umping Margin and Assessment Rate in Certain Antidumping Procee dings , 75 Fe d. Reg . 81,533 (De c. 28, 2010) ( “Proposal ”). D efe ndant and de fenda nt-intervenor

oppose this motion. Def.’s Opp’n to Mot. to Stay ; The Timken Co.’s Opp’n to NTN’s Mot. for Stay , or, Alternatively , Fur ther B riefing . In the notice on whic h NTN g rounds its moti on, Commerce pr oposes ce rtain chang es to the method by which it calc ulates we ighte d-ave rag e mar g ins in periodic and sunset revie ws, in response to a dverse WTO decisions concludingthat zeroing is contrar y to the WTO Antidumping Ag ree ment. Proposal , 75 Fe d. Reg . at 81,534-35. With respec t to periodic revie ws, the De partment propose s to “modify its methodology

for c alculatingweig hted ave rag e marg ins of dumping a

nd assessment rates to provide off sets for non dumped c omparisons while using monthly

aver ag e-to-a

vera g e compa

risons in reviews in a

manner that para llels the WTOconsistent methodology

the Depa rtment curr ently

applies in orig inal investigations.” Id. at 81,534. Commerce proposes to ame nd its regulations, codified at 19 C.F .R. § 351.414, to chang e its pref

ere nce f rom the use of

aver ag e-to-tr ansac tion comparisons in periodic r eviews to the use of monthly

aver ag e-to-a

vera g e compa

risons. Id. at 81,534-35.Consol. Court No. 07-00377 P age 12

Be cause the cour

t is remandingfor f

urther e x planation the De partment’s de cision to apply the zeroingmethodology

in AFB s 17, the court se es no nee d for the sta y soug ht by

NTN. And beca use the pa rties will have the oppor

tunity to comment on the re sults the Depar tment issues in response to the rema

nd, the cour

t does not perc eive the ne ed for other, sepa

rate briefing

on the zeroing issue at this tim e. F or these r easons, the c ourt will deny NTN’s motion for a

stay or, alternatively , for a dditional briefing , and it also will deny as moot NTN’s motion for lea ve to file

a re ply to defe ndant’s and de fenda nt-intervenor ’s opposition to t hat motion. Additionally , the cour

t will deny

Timken’s motion to vacate the pre liminary injunction of the liquidation of entries with re spect to Na chi. That motion is premised on Timken’s a rgument that the Court of Appe als consistently has upheld the D epar

tment’s use of zeroingin administrative re views. Timken Mot. 1, 4. As discussed a bove, the Court of A

ppeals in Dongbu , viewingthe Depa rtment’s statutory

construction as ina dequate ly explained, has now held that a judg ment aff

irming the final re sults of an administrative re view in which zeroingwas applied must be set aside

. B. The Application of the Mode l-Match Me thodology in these Administrative Reviews To deter mine a dumping marg in, Comm erc e compa res the U .S. price of the subject

merc handise with the pric e of c ompara ble merc handise (the “for eig n like product” ) in the home marke t. 19 U.S.C. § 1677b (2006). Commerce f irst attempts to match sales of the subje ct

merc handise with sales of merc handise in the “ home” mar ket ( i.e. , the ac tual home marke t or another compar ison market) that is “identical” to the subjec t mercha ndise. 19 U.S.C. § 1677(16)( A) (2006) . In the abse nce of identical mer chandise , Commerce attempts to m atch a sale of subje ct merc handise in the United States with a home marke t sale of similar mer chandise

.Consol. Court No. 07-00377 P age 13

See id. § 1677(16)( B) -(C). I f Commerce finds no sales of similar mer chandise in the home marke t, Comm erc e will deter mine normal value based on the constructe d value of the subject

merc handise. Id. § 1677b(a) (4). For the first four

teen a dminist rative r eviews of the subject mer chandise , Commerce identified similar merc handise usinga model-match methodolog y (the “ family ” model-match methodology

) in which it compar ed bea ring s acc ordingto eig ht char acte ristics. Issues & Dec ision Mem. for the Antidumping Duty Admin. Re views of Ball Bearings & Parts Thereof from France, G ermany

, Italy, Japan, Singapore, & the United Kingdom for the Period of Rev iew May 1, 2003, through April 30, 2004 , 19-26 (Sept. 16, 2005) ( “ AFBs 15 Dec ision Mem. ”). Commerce grouped in the same “f amily ” the be aring s that matched a ccor ding to those e ight char acte ristics for purpose s of deter mining a f

oreig n like product. Id. In the fiftee nth administrative re views of the be aring s order s (“AF Bs 15” ), Commerce adopted the c urre nt methodology

(“ne w model-matc h methodology”), in whic h Commerce a pplies a multi-step proce ss. Id. ; see Ball Bearings & Parts Thereof from France, Ge rmany, Italy, J apan, Singapore, &the United Kingdom: Final Results of Antidumping Duty Admin. Rev iews , 70 Fe d. Reg

. 54,711, 54,712 (Sept. 16, 2005) (“ AFBs 15 Final Results ”). Commerc e applied this newmodelmatch methodolog y

in the AFB s 17 review s. Dec ision Mem. 14-20, 25-27. In the new mode l-match methodolog y , Commerce matches a ball bearing mode l sold in the United States to one sold in the home mar ket if the be aring s are alike in ea ch of f our char acte ristics: load direction, bea ringdesig n, number of r ows of rollingelements, a nd prec ision rating

. AFBs 15 Dec ision Mem. 19. For bear ing de sign, Commerc e re cog nized seven ball bear ing de sign ty

pes in the AF Bs 17 r eviews: a ngular c ontact, self- alig ning, de ep g roove, integ ralConsol. Court No. 07-00377 P age 14

shaft, thrust ball, housed, a nd insert. Dec ision Mem. 60. For bear ings that are identical with respe ct to the first four

char acte ristics, Commerce ide ntifies the most appropria te home mar

ket ball bear ing mode l acc ordingto four additional, quantitative c hara cter istics: load rating , outer diameter , inner diame ter, a nd width. AFBs 15 Dec ision Mem. 19. In matchingbear ings

acc ordingto the four qua

ntitative char acte ristics, Commerce e x cludes a ny potential matches in which the sum of the de viations for those four quantitative cha

rac teristics exceeds 40%

. Id. Finally , in matching a bea ringsold in the United States with a compar ison market bea ring , Commerce a

pplies a “diff

ere nce- in-merc handise a djustment” (“DI FMER” a djustment) for any differ ence in the varia

ble cost of manuf

actur ing a nd excludes any

potential matches f

or which the DI FMER adjustment would exceed 20% wer e the matc h to have be en made

. See Dec ision Mem

. 17 (“B eca

use we applied our nor

mal methodology

of disreg ardingpotential matches w ith a differ ence -in-mer chandise adjustment of greater than 20 pe rce nt, we re g ard a ll the matches we actua lly made to be a

pproxi mately

equal in commer cial value .”); Imp. Admin. Policy Bulletin 92.2 (Jul y

29, 1992), http://i a.ita.doc.g ov/policy /index .html (last visi ted May 5, 2011). Severa l plaintiffs challeng e the De partment’s de cision to apply the new mode l-match methodology

in AFB s 17 instead of the old fa mily methodology . Certain plaintiffs c halleng e specific s of the application of the methodolog y in the AFB s 17 review s, including the Depa rtment’s alleg ed fa ilure to provide a n adequate mecha

nism to contest inappropriate matches, the Depa rtment’s re

jection of propose d additional bear ing de sign ty pes, and individual matche s that the Depa

rtment made in AF Bs 17. 1. Dec ision to C hang e the Mode l-Match Me thodology In respondingto arguments challeng ing the new model matc h methodology made dur ingConsol. Court No. 07-00377 P age 15

the re views, Commerce cited in the De cision Memorandum the r easoningit stated in AFB s 15, in which it first applied the ne w methodolog y . Dec ision Mem. 14. Among the Depa rtment’s

rea sons are that the new me thodology ref lects statutory

pref ere nces f or using price -to-pric e compar isons, as opposed to constructe d value, a nd for identify

ing the fore ign like pr oduct by selec ting the sing le most simi lar produc t. Id. Commerce f urther e x plained that the ne w methodology

enable s Commerce to use te chnolog ical deve lopments, i.e. , automation, to eff ectuate more ma

tches a nd is more similar to the Depa rtment’s normal model- match pra ctice a s applied to produc ts ge nera lly

. Id. J TEKT, NPB , NSK, NTN, a nd Nac hi challeng e, on a numbe r of g rounds, the Depa rtment’s dec ision to apply the new me thodology

rathe r than the pr evious family methodology . J TEKT a

rgues that Commerce failed to pre sent compellingrea sons for the chang e. JTEKT Mem. 17-18. NTN c ontends that the family methodology

serve s as a benchma rk ag ainst which Commerce must assess the new me thodology . NTN Mem. 18- 24. Simi larly , NSK argues that to cha ng e its model-match methodolog y , Commerce must provide a

rea soned ana ly sis, which “in this context require s Commerce to de monstrate that its new methodology

will result in a more a ccur ate dumpingmarg in calculation.” NSK Mem. 13; see NSK Reply

2-4. Addre ssing Commerc e’s c laim that the new methodolog y allows more pr ice- toprice compar isons, J TEKT, NPB , and NSK ar gue that the ne w methodolog y compar es dissimil ar

merc handise a

nd incre ases the numbe r of c omparisons only by adopting less exacting mode l match re quirements. JTEKT Mem. 20; NPB Mem. 17; NSK Mem. 18. J TEKT a dds that Commerce’ s rationale c ontradicts conc lusions in past admini strative re views and that Commerce’ s interpre tation of the statute is contra ry to cong ressional intent. JTEKTConsol. Court No. 07-00377 P age 16

Mem. 20-24. JTEKT argues, fur ther, that a dvance d technolog y does not justify

a cha ng e in the model-match me thodology . J TEKT 27-29. JTEKT, NPB, N SK, and NTN a rgue g ener ally

that Commerce f

ailed to provide substantial re cord e vidence in support of its reasons for chang ing the model-match me thodology . J TEKT Mem. 18, 25- 27; NPB Mem. 16-17; NSK Mem. 12- 13; NTN Mem. 20- 24. The Court of Appe als has upheld the D epar tment’s decision to discontinue the fa mily methodology

in favor of

a ver sion of the new mode l-match methodolog y that, in essential features, wa s the same a s the methodolog y applied in AF Bs 17, c oncluding that “we have specific ally

aff irmed cha ng es to the model-matc h methodologie s by Commerce where

rea sonable.” SKF USA, Inc. v . United States , 537 F.3d. 1373, 1380 ( “ SKF I ”). Plaintiffs ar g ue, in effe ct, that as to AF Bs 17, Commerc e must meet a standa rd more string ent than this. The Court of Appe als previously reje cted a

rguments simil ar to those a dvance d by plaintiffs in this case, notingthat “this statute ‘is silent with respec t to the methodology that Commerce must use to match a U.S. product with a suitable home- marke t product.’” SKF I , 537 F.3d at 1379 (quoting Koyo Seiko Co. v. U nited States , 66 F.3d 1204, 1209 ( Fe d. Cir. 1995) (“ Koyo I ”)) . Concluding that “Cong ress ha s g rante d Commerce c onsiderable discretion to fashion the methodolog y

used to deter

mine what constitutes ‘for eig n like product’ unde r the statute,” the Court of A

ppeals de fer

red to the D epar

tment’s choice of methodolog y as a

rea sonable c onstruction of the a ntidumping statute. Id. (citing Pesquera M ares Australes Ltda. v. United States , 266 F.3d 1372, 1384 ( Fe d. Cir. 2001) (“ Pesquera M

ares ”), which cites, in turn, Koyo I , 66 F.3d at 1209). The Court of A ppeals c oncluded that Commerc e wa s rea sonable in seekingto improve ac cura cy , to select a model that would yield more pric e-to-pr ice c omparisons,Consol. Court No. 07-00377 P age 17

and to ca pitaliz e on tec hnologic al adva nces that enable implementation of a more a ccur ate methodology

. Id. at 1380. NSK argues that in Koyo Seiko Co., Ltd. v. United States , 31 CI T 1512, 516 F. Supp. 2d 1323 (2007) ( “

Koyo II ”), the Court of International Trade err ed in sustaining the Depa rtment’s use of the ne w model-matc h methodology . NSK Mem. 20-22. Howe ver, the Court of Appea ls aff irmed Koyo II

in sustaining the use of the methodolog y . Koyo III , 551 F.3d at 1290 (citing SKF I , 537 F.3d at 1379-80). NSK ar g ues, fur ther, that c erta in of the matche s made unde r the new methodolog y

wer e of me rcha

ndise dee med dissimil ar unde r the prior family model-match methodology

and that Commerce failed to e x plain how merc handise pre viously found to be dissimi lar is now similar. NSK Mem. 21. This argument fails to convince the cour t that shortcoming s in the Depa rtment’s explanation require a re mand for a further explanation or a chang e in the methodolog y . One of the Depa rtment’s stated r easons f

or makingthe cha

ng e wa s that the new mode l-match methodolog y , on aver ag e, will produce more matc hes and le ss relianc e on constructe d value whe n compar ed to the pre dece ssor. Dec ision Mem. 14. I t does not logic ally follow that matche s not recognized under the fa mily methodology

are nece ssarily

so dissim ilar as to be impermissible under the statute. See19 U.S.C. § 1677(16)(B ), (C). NPB a rgues that it detrimentally relied on the family

model-match me thodology by taking that methodology

into account in pric ing its produc ts, which resulted in a n aver ag e antidumping marg in of 2.97% for

the last six sets of administrative re views that occ urre d under the family model-match me thodology . NPB Mem. 17- 19 (citing Shikoku Chem icals Corp. v. United States , 16 CI T 382, 387-89, 795 F . Supp. 417, 421-22 (1992). NPB further argues that bec ause Commerce did not re veal the ne w methodolog y until the Final Results of the fiftee nthConsol. Court No. 07-00377 Page 18

administrative reviews, five months into the POR for the current administrative reviews, NPB could not timely adjust its pricing structure. NPB Mem. 19. NPB claims that as a result its margin increased from 3.38% in the fourteenth administrative review to an average of 22.77% for the fifteenth through seventeenth administrative reviews (including the 26.89% margin in AFBs 17). NPB Mem. 19. In rejecting a similar argument by NPB regarding the final results for the immediately preceding review, the Court of International Trade observed that Commerce had determined that NPB sold at dumped prices for three periods of review, e.g. , for the POR beginning May 1, 2003, a margin of 15.51%; for the POR beginning May 1, 2002, a margin of 3.37%; and for the POR beginning May 1, 2001, a margin of 4.82%. JTEKT Corp. v. United States , 33 CIT __, __, 675 F. Supp. 2d 1206, 1221 (2009) (“ JTEKT I ”). Here also, NPB’s reliance argument is unconvincing. The fact that the average of NPB’s margins in recent reviews has been higher than they were under the previous methodology, when the margins were neither zero nor de minimis, is not a sufficient ground upon which the court may overturn the Department’s model-match methodology as applied to NPB in AFBs 17. NTN also raises an argument directed to the timing of the methodological change, claiming that under the Administrative Procedure Act (“APA”), 5 U.S.C. § 553(d), Commerce was required to notify affected parties of the new methodology at least thirty days prior to the effective date and was not permitted to apply the new methodology retroactively. NTN 4 The Administrative Procedure Act (“APA”) provides, in pertinent part, that 4 (d) [t]he required publication or service of a substantive rule shall be made not less than 30 days before its effective date, except (1) a substantive rule which grants or recognizes an exemption or relieves (continued...)Consol. Court No. 07-00377 P age 19

Mem. 13-17. In making this argument, howeve r, NTN a cknowledg es that Commerce provided notice that it would apply a new model-match me thodology two revie ws ag o ( i.e. , in the fiftee nth administrative re views) a nd that Commerce published a memorandum on May

6, 2005, providing the cr iteria for

the new mode l-match methodology . NTN Mem. 14- 15. The pe riod of revie w at issue beg an on May 1, 2005. Final Results , 72 Fe d. Reg . at 58,053. NTN state s that “re spondents had no wa

y of knowingthe final for

m of the newmethodology and the e ffe ct it would have on e ntries alre ady made dur ing the sevente enth per iod of revie w” a nd contends that it could not have known the ef fec t of the newmethodology until the publication of the final re sults of AF Bs 15 on Septembe r 12, 2005, which w as seve ral months into the period of r eview f or AFB s 17. NTN Mem. 15; Final Results , 72 Fe d. Reg . at 58,053. The c ourt finds no violation of the 30-da y eff ective da te re quirement in the APA. “ ‘Chang es in methodolog y , like all other antidumping r eview de terminations, permissibly involve retroa ctive ef

fec t.’” SKF I

, 537 F.3d at 1379 (quoting Koyo II

, 31 CI T at 1520, 516 F . Supp. 2d at 1334). NTN c ites Rhone Poulenc , Inc. v . United States , 14 CI T 364, 738 F. Supp. 541 (1990) , in support of its argument of defe ctive notice, N TN Mem. 13-14. This too is unconvincing . That ca se is neither binding prec edent nor

on point. I t conce rned the eff ective date of a

regulation, not the application of a methodology

in an antidumping duty

administrative re view.

(...continued) 4 a re striction; (2) inter pretative rules and statements of policy ; or (3) a s otherwise pr ovided by the ag ency

for g ood cause found and published with the rule. 5 U.S.C. § 553(d).Consol. Court No. 07-00377 P age 20

NTN a lso argues that Commerce , in chang ing the model-match me thodology and rede fining “for eig n like product,” set forth a substantive rule subjec t to the notice-a nd-comment rulemakingproce dures of the APA, 5 U.S.C. § 553. NTN Mem. 9-13; NTNReply 3. In support of its argument, NTN c ites Parkdale I nt’l, Ltd. v. United States , 31 CI T __, __, 508 F. Supp. 2d 1338, 1357 (2007), Alaska Prof’l Hunters Ass’n v . Fed. Av iation Admin. , 177 F.3d 1030 ( D.C. Cir. 1999), and Shell Offshore Inc. v . Babbitt , 238 F.3d 622 ( 5th Cir. 2001). NTN Mem. 10-13. None of these c ases holds that Commerce must conduct a APA rule making proce dure to c hang e a model-match methodolog y applied in its antidumping proc eeding s. As discussed above , “Commerce need only

show that its methodology is permissible under the statute a nd that it had g ood rea sons for the ne w methodolog y .” Huvis Corp. v. United States , 570 F.3d 1347, 1353 (F ed. Cir. 2009). In SKF I and Koyo III

, the Court of Appe als held that Commerce had provide d adequate re asoningfor c hang ing the methodology , and the c ourt finds in this case no indepe ndent basis to conclude that the chang e re sulted in procedur al unfa irness. In summary , the cour

t concludes that the Depa rtment’s dec ision to continue applying in AFB s 17 the new mode l-match methodolog y , in essentially the form f

ound permissible in previous dec isions of the Court of Appea ls, must be sustained on review

.

2. Diffe renc es in Commercial Va lue and Commerc ial Use Plaintiffs also challeng e par ticular a spects of the new model- match methodolog y . Asahi and JTEKT contend that the methodolog y , despite the DI FMER adjustment and DI FMER limit, unlawfully

compar es merc handise with diffe rent c ommercia l values. JTEKT argues that the DI FMER does not ac count ade quately for diff ere nces in c ommercia l value, JTEKT Mem. 26, and Asahi conte nds that Commerce f ailed to consider

whether bear ings in Japan and be aring s in theConsol. Court No. 07-00377 P age 21

United States wer e appr ox imately equal in commer cial value when Commerc e compa red hig h temperature be aring s to standard be aring s, Asahi Mem. 3, 5, 8. Commerce a

pplies the DI FMER adjustment under a g ener al pre sumption t hat diffe renc es in the varia

ble cost of manuf

actur ing w ill be refle cted in the mar ketplace

. See Dec ision Mem. 17 (“B eca use we applied our nor

mal methodology

of disreg ardingpotential matches w ith a differ ence -in-mer chandise adjustment of greater than 20 pe rce nt, we re g ard a ll the matches we actua lly made to be a

pproxi mately

equal in commer cial value .”). The Court of Appea ls affirme d the new me thodology , including the 20% DI FMER limit and the price a djustment for the amount of the DI FMER, as a

rea sonable interpr etation of the statute, which in 19 U.S.C. § 1677(16)( B) (iii) require s that matched sa les be of me rcha ndise “a pproxi mately

equal in

commerc ial value.” Koyo III , 551 F.3d at 1286, 1291-92, aff’g Koyo II , 31 CI T at 1525, 516 F

. Supp. 2d at 1338 (reje cting the ar g ument that Commerce must apply a diffe renc e-in-me rcha

ndise adjustment smaller than 20% a nd explaining that the DI FMER adjustment ac counted f or value distortions). The statute, in requiringthat the merc handise be ing c ompare d be “a pproxi mately ” equal in value , allows the De partment discr etion that was not excee ded by the desig n of the ne w model-match me thodology

. See19 U.S.C. § 1677(16)(B )(iii). Nor, in the a lternative, ha ve plaintiffs identified an instanc e in which the a pplication of the ne w methodolog y in AFB s 17 yielded a match that exceede d the 20% DI FMER limit. Asahi and JTEKT also ar g ue that the ne w methodolog y permits matches of

bear ing models that have diff

ere nt commerc ial uses. J TEKT Mem. 26; Asa hi Mem. 3, 5, 8-10. J TEKT maintains that Commerce’ s “newmethodology results in comparisons of be aring models that have striking ly

differ ent uses, contr ary

to the statutory

require ment that ‘for eig n like product’ beConsol. Court No. 07-00377 P age 22

merc handise ‘like’ the U.S. product ‘ in the purposes for which used .’” JTEKT Mem. 35 (quoting 19 U.S.C. § 1677(16)(B )(ii), (C)( ii)). Asahi a dvance s a similar statutory argument. Asahi Mem. 3, 5-10. JTEKT argues that Commerce ’s statement that the spe cific a pplication is not disposit ive contra dicts the statute. J TEKT Mem. 35. As the cour

t expl ained in JTEKT Corp. v. United States , 34 CI T __, __, 717 F. Supp. 2d 1322 (2010) ( “

JTEKT II ”), “ [w] hen re ad ac cordingto plain meaning , the statute allows Commerce mor e discre tion than J TEKT’s a rgument would acknow ledg e. . . . Cong ress did not g o so far as to requir e that the f

oreig n like product a

nd the subject mer chandise be manuf actur ed for, or suitable for, the identical purpose or

application.” JTEKT II

, 34 CI T at __, 717 F . Supp. 2d at 1334 (c iting 19 U.S.C. § 1677(16)(C)( ii)). Commerce conclude d in the Dec ision Memorandum that “ it is t he rollingelement that is dispositive as to whether a bea ringcan be considere d simil ar w ith respec t to the component mater ial or mater ials and in the purpose s for which bea

ring s are used.” Dec ision Mem. 16. In discussing the scope of the Depa rtment’s discretion in identifying the fore ign like pr oduct in bear ing c ases, the D ecision Memora ndum

corr ectly relies on Koyo I

for the pr inciple that home mar ket bea ringmodels need not be “‘te chnica lly

substitut able, pur chase d by the same ty

pe of c ustomers, or applied to the sa me end use as the U .S. model.’” Id. (quoting Koyo I , 66 F.3d at 1210). In summary , the cour

t rejec ts the arguments J TEKT a nd Asahi adva

nce in support of

their g ener al cha lleng e to the new model-match me thodology , including those J TEKT a nd Asahi base specific ally

on the Depa

rtment’s adoptinga methodolog y that matches mode ls with differe nt

commerc ial uses or va lues.Consol. Court No. 07-00377 P age 23 3. Sum of the Deviations NSK argues that Commerce should set the allowable sum-of -the-de viations (“sumdev” ) to zero or a sum smaller tha n the cur rent 40% a

nd that doing so w ould be more c onsistent with the prior f

amily methodology . NSK Mem. 19 (statingthat “to the extent that the revised methodology

allows matche s of dissimil ar me rcha ndise, using a

smaller ca

p would result in few er dissimilar matche s” and tha t “the ‘zero de viation’ is less of a step ba ckwa rd than the methodology

Commerce se lected” ); NSK Reply 5-7. The Court of

Appea ls in SKF I

, howeve r, addre ssed the lawf

ulness of this aspec t of the De partment’s me thodology : althoug h the new me thodology allows up to a 40 per cent total deviation in dimensions and load rating, the me thodology yields more ac curate re sults because it matches the most simil ar pr oduct rather than me rely pooling se vera l models that matched a s to eig ht char acte ristics but could vary signific antly

in price or

cost, due to diffe renc es in materia ls for ce rtain compone nts or added f eatur es. SKF I , 537 F.3d at 1379. I n evaluating the ne w methodolog y , the cour t does not view the 40% sumdev limit in isolation. For example, even where two bear ings diff er in width by

the maxi mum 40% and whe re the other thre e quantitative phy sical cha rac teristics (inner

diameter , outer diame ter, a

nd loading rating ) ar e identica l, it is rea sonable to pre sume that the additional materia l and proc essing neede d to make the wide r bea ringwill be ref

lected in the va

riable c ost of manufa cturing , and if that diff ere nce e x cee ds 20%, Commerce will decline to make the match. Noting that the 40% sumdev limit was a “total de viation in dimensions and load rating ,” the Court of Appea ls concluded that the methodology was a rea sonable interpr etation of the statute. SKF I , 537 F.3d at 1379. The re cord in AF Bs 17 doe s not permit the court to re ach a differ ent conclusion in this case. Asmaller sumdev limit could be expected to re sult in m atche s of bear ings that, viewed in the a g g reg ate, a re more simil ar tha

n the matche s resulting from the ne wConsol. Court No. 07-00377 P age 24

methodology , but it would do so by g ener ating few er matches, with the ne ed to re sort more ofte n to constructed va lue. B alanc ing the se compe ting c onsiderations, Commerce was within its discretion in makingthe methodolog ical choic e to adopt a 40% cap.

4. Challeng es to Individual Matches of Be aringModels J TEKT, NPB , NSK, and Asa hi claim that the Depa

rtment’s model-matc h methodology produce d inappropriate matche s that are contra ry to the statutory

criter ia set out in 19 U.S.C. § 1677(16)( B) for de terminingthe fore ign like pr oduct. J TEKT Mem. 34- 35; NPB Mem. 8, 12-13, 15; NSK Reply

8; Asahi Mem. 5. Except for one of the matc hes conte sted by J TEKT, for which JTEKT submit ted supplemental infor mation that the Depa

rtment excluded from the administrative re cord, the court c oncludes that Commerc e ac ted lawf ully in making the individually

contested matches.

a. Matc hes Claimed Inappropr iate by J TEKT J TEKT c laims that the new model-ma tch methodolog y

resulted in four

teen statutorily impermissible matches in AF Bs 17, a rguing tha

t “the two models being

compar ed had ma

rkedly differ ent applications, commercial mar kets, and pe rfor

mance capa

biliti es.” JTEKT Mem. 35. J TEKT c ontests matches of be aring s that it claims “have striking ly differ ent uses, contr ary

to the statutory require ment that ‘for eign like product’ be merc handise ‘like’ the U.S. product ‘ in the purposes for which used .’” Id . (quoting 19 U.S.C. §§ 1677(16)(B )(ii), (C)( ii)). J TEKT a lso challeng es the De partment’s de cision to rejec t as untimely cer tain fac tual information on the bear ings involved in those matc hes; J TEKT ha d offe red tha t information afte r the publication of the Preliminary

Results, by

which time the re g ulatory deadline f

or submission of factua l information alre ady

had passe d. Id . at 29-34. F urther, JTEKT objects that “ the Depa rtmentConsol. Court No. 07-00377 P age 25

failed to a naly ze the evidenc e of spe cific mismatche s place d on the re cord by J TEKT a nd dismiss ed the identifie d mismatches with a one- sentenc e asse rtion that they wer e not inappropriate in light of the Depa rtment’s statutory

interpre tation.” Id. at 34 (c iting Dec ision Mem . at 23-24). A ccor ding to JTEKT, “ther e is no rec ord evide nce to support the D epar tment’s conclusion to include these specific matches in its calc ulation of J TEKT' s dumping mar g in.” Id. at 36. J TEKT urg es a r emand or deringCommerce to r eca lculate JTEKT’s marg in without relying on the contested matches a nd to establish a proc edure for e valuatinginappropriate matches in subseque nt administrative revie ws. Id. at 37; J TEKT Reply 3-4. For details on the matche s it contests, J TEKT dire cts the cour t to ex hibits i n the ca se brief it submi tted duringthe re view, which a ddress in deta il only three of those matche s. J TEKT Mem. 35 (citingJ apan- Specific Case Br ief of Re spondents J TEKT Corp. (f ormerly known as Koy o Seiko Co., L td.) & Koy o Corp. of U.S.A., exhibit s 1-2, (Sept. 7, 2007) ( Admin. R. Doc. No. 515) (“ Revised J apan- Specific Case Br ief” ). JTEKT’s first contested match compar ed a “custom desig ned” U .S. bearingwith a home mar ket “standa

rd ‘of f-the- shelf’ mode l that has g ener al application.” Revised J apan- Specific Case Br ief, e x hibit 1, 1. The U.S. bearing , which underw ent a f

orm of spec ial proce ssing that the home marke t bear ing did not, wa s signific antly

narr ower . Id. J TEKT a

rgued below, a

nd ag ain her e, that “matching these two models ig nores the sig nificant diff

ere nce in their

technica l char acte ristics and commer cial value .” Id. J TEKT argues that the two models satisfied the sumdev and DI FMER limitations “sim ply beca use they happen to have similar costs,” with the hig her pr ocessing costs of the wide r home mar ket model counter balanc ed by

the costs of the spe cial proc essing nece ssary for the U .S. model. Id. atConsol. Court No. 07-00377 P age 26

exhibi t 1, 2. The cour

t concludes that J TEKT ha s failed to make the ca se that this match is impermissible under 19 U.S.C. § 1677(16). The diff ere nces r elied upon by

J TEKT, i.e. , that one of the bear ings is custom desig ned and the other

is “off the shelf,” that they differ signific antly

as to width, and that one unde rwe nt a specia l ty pe of pr ocessing , are addre ssed g ener ally by the sumdev, the DI FMER limit, and the DI FMER adjustment. J TEKT off ers no c onvincing argument as to why the diffe renc es in “tec hnical cha

rac teristics,” i.e. , the diffe renc es in width and in the proc essing , prec lude a

rea sonable matc h despite the sumdev a nd DI FMER. JTEKT’s arguments g rounded in the differ ence in commerc ial value a lso fail to persuade the cour t. The DI FMER adjustment, as discussed supra , presumes that differ ence s in the variable cost of manuf actur ing w ill be refle cted in the marke tplace, a

presumption that the cour t does not view as unr easona ble when c oupled with the 20% DI FMER limit and adjustment. The c ourt has examined the additional information ex cluded by Commerce that relate s to the first match c halleng ed by J TEKT. See Letter from Office Dir. to Sidley Austin LL P (Aug . 31, 2007) (Admin. R. Doc. No. 507) ; Mem. of P. & A. in Supp. of Mot. of Pls. J TEKT Corp. & Koy o Corp. of U.S.A. for J . on the Ag ency

R. ( Conf. Version ), exhibit C, J apan- Specific Case Br ief of Re spondents J TEKT Corp. (f ormerly known as Koyo Seiko Co., L td.) & Koy o Corp. of U.S.A., exhibi t 1, 1-3 (Jul y 9, 2007) (“ Unre dacte d J apan- Specific Case Br ief” ). That information, had it bee n included in the re cord, w ould not have cha ng ed the c ourt’s dec ision. The most signific ant item of additional information concer ns use: the two bea

ring s are intended for use in differ ent ty

pes of mac hines. SeeUnre dacte d J apan- Specific Case Br ief, e x hibit 1, 1-3. Ag ain, the statute re quires that the f oreig n like product be “like” the subject merc handise in “theConsol. Court No. 07-00377 P age 27

purposes for

which used” ; it does not require that the like product a nd the subject mer chandise be suitable for e x actly

the same use

. See19 U.S.C. § 1677(16)(B )(2)

. For almost identical rea sons, J TEKT’s obje ction to the second match is also unpersua sive. J TEKT a

rgued below, a

nd ag ain her e, that the home ma rket model “ is of a standard de sign that is li sted in Koyo’s catalog ues” while the U.S. model “wa s specially desig ned to satisfy the re quirements of the customer’ s specific application.” Re vised J apan- Specific Case Br ief, e x hibit 1, 3. The two bear ings diff ere d with respec t to load rating , but not enoug h to cause the match to be r ejec ted under the sumdev. See id . The diff ere nce in load r ating resulted be cause the U.S. model had a long er life span due to a differ ent manufa cturingproce ss, and the home marke t model had a phy sical fe ature missing from the U .S. model. J TEKT objec ts that these two differ ence s offset one another with respec t to the DI FMER and, a s a re sult, the cost of manufa cturingthe U.S. model “happe ns to be similar” to the cost of pr oducingthe home mar ket model. Id . at exhibit 1, 4. The phy sical diffe renc es re lied upon by J TEKT a re a ddresse d g ener ally , but adequa

tely , by the sumdev and the DI FMER, and unde r the latter Commerce did not err in c oncluding that the two models of bea ring s beingcompar ed we re “ approximately equal in commerc ial value” as re quired by statute. See19 U.S.C. § 1677(16). The infor mation Comm erc e excluded fr om the rec ord as untimely , which is in the unreda cted ve rsion of JTEKT’s case brief, is not suffic ient to chang e the c ourt’s conc lusion as to this second match. SeeUnre dacte d J apan- Specific Case Br ief, e x hibit 1, 4-6. Accor ding to that information, the two bea

ring s are used in diffe rent ty pes of mac hines and a

re phy sically

differ ent in that “the interna l ge ometry differ s as a r esult of the number and size of the balls used in theConsol. Court No. 07-00377 P age 28

two models” and in that the U .S. model underwe nt a spec ial proce ss and includes a feature not prese nt in the home marke t model. See id . at exhibit 1, 4. In the third match it contests, JTEKT argues that the De partment unlaw fully matched two bear ings w ith “substantially differ ent” phy sical cha

rac teristics and c osts of manufac turing that “diffe r sig nificantly” due to a specia l proce ss applied to the U.S. model. Revised J apan- Specific Case B rief, e x hibit 1, 6. The differ ence in manufac turing cost is insufficient to disallow the match under

the DI FMER limit. This and the other information provided in JTEKT’s resubmitted ca se brief

do not establish an unre asonable match. Wit h respe ct to the third contested match as we ll as the first two, the cour t has examined the fa ctual information J TEKT attempted to place on the rec ord in its origina lly -submitted, unreda cted c ase br ief, whic h information Commerce reje cted a s untimely

. SeeUnre dacte d J apan- Specific Case Br ief, e x hibit 1, 7-9. That information ra ises a question as to whe ther the model-match me thodology was c orre ctly

applied in this instance. The Depa rtment is require d to match the be aringsold in the United States with a home marke t sale of a bear ing of

the same desig n ty pe. See Dec ision Mem . 60; 19 U.S.C. § 1677(16)(B ). The data J TEKT orig inally submitt ed in its questionnaire re sponse appe ars to show the two be aring s to be of the same desig n ty pe. See Letter from Sidley Austin LL P to Laurie Parkhill , Section C (“U.S Sales”) , 9 (Sept. 28, 2006) (Admin. R. Doc. N o. 182) (“ J TEKT Que stionnaire Response” ). The inf ormation the Depa rtment requir ed JTEKT to redac t from its resubmitted case brief, how ever , sug g ests that this is not the case. SeeUnre dacte d J apan- Specific Case Br ief, e x hibit 1, 7-9. There is no discussion of this issue in the Decision Memora ndum, which conc ludes g ener ally that none of the matches J TEKT identified w as inappropr iate and that the char acte ristics on which JTEKT based itsConsol. Court No. 07-00377 P age 29

arguments were extraneous to the new mode l-match methodolog y , as we ll as the prior fa mily model-match me thodology

. Dec ision Mem. 23-24. I t is not clear f rom the De cision Memorandum or

the re cord a s a whole that the Depa rtment has adopte d a g ener al policy under which it will refuse , or must refuse , to exercise discre tion to consider new inf ormation on a specific model match submitted with the case brief e ven though that new infor mation sugg ests a possible misapplication of the methodolog y due to a mistake of

fac t. I f Commerce decide d to apply so prejudicial a

policy as that in ref

using to c onsider JTEKT’s challeng e to this particular model match, it did so without t he compe lling justification that such a decision would see m to require . Nor is there prese nted in the Dec ision Memorandum a re ason why Commerce c ould not have a ddresse d, in the time remainingin the revie ws, a matc h that possibly was impermissible under the new model- match methodolog y . The c ourt, there fore , will order Commerc e to examine on remand its dec ision rejectingthe cha lleng e JTEKT makes to the third match. J TEKT de scribed the rema ining e leven matc hes it contests in a sing le exhibitto its case brief. SeeRevised J apan- Specific Case Br ief, e x hibit 2. The information in that exhi bit indicates that e ach of

the eleve n matches satisfied the re quirements of the model-match methodology

. See id . The c ourt’s examination of this information revea ls no gr ound on which

5 the cour t could conclude that the matche s were unrea sonable. Ba sed on the re cord a s a whole, the court doe s not ag ree with J TEKT’s g ener al char acte rization that “the Depa rtment failed to a

naly ze the evidenc e of spe cific mismatche s place d on the re cord by

J TEKT a nd dismiss ed the identifie d mismatches with a one- sentenc e

asser tion that they

wer e not inappropr iate in light of the Depa rtment’s statutory

interpre tation.”

All information in this ex hibit was submitt ed timely

. 5Consol. Court No. 07-00377 P age 30

J TEKT Mem. 34 ( citing Dec ision Mem . 23-24). The Dec ision Memorandum contains ample discussion of the re asons why its model-match methodolog y rea ched a

rea sonable re sult as to all of the matc hes JTEKT challeng es except for the third match, discussed a bove, for which the information excluded from the r ecor d raises the fac tual issue of whe ther the me thodology was misapplied. b. Matche s Claimed I nappropr iate by NPB NPB a rgues that it is entitled to relief bec ause of the way Commerce matched be aring s in applying the model-match me thodology , citing two e x amples. NPB Me m. 12-16. Acc ordingto NPB, Commerc e impermissibly matched house d bear ings w ith unhoused bear ings a nd matched bear ings w ith collars to bear ings w ithout collars. Id. at 14. The c ourt conc ludes that relief is not available on this claim beca use of NPB ’s fa ilure to exhaust its administrative re medies in contestingthe spec ific matche s it identifies to the court. Wit h respe ct to housed and unhouse d bear ings, N PB alleg es that the De partment incorre ctly

compar ed a spe cific U .S. model, which was a n unhoused bea

ring , to a spec ific J apane se model, which w as a house d bear ing. N PB Mem. 14; see also Letter from Baker & McKenzieto Sec’

y of Commerc e 13 (De c. 8, 2006) ( Admin. R. Doc. No. 295) ( “NPB Supplemental Questionnaire ”). A s NPB cor rec tly points out, t he new

model-match me thodology does not permit Commerce to match a house d bear ing w ith an unhoused bea ring . NPB Mem. 14 (“A s Commerce r ecognized in the 15 administrative re view, housed a nd unhoused bea

ring s had t h differ ent desig n ty

pes and should not have been c ompare d” (c itation omit ted)). D efe ndant and defe ndant-interve nor ar g ue that NPB failed to ra ise this specific issue in the c ase br ief filed w ithConsol. Court No. 07-00377 P age 31

Commerce dur ing the revie w and ther efor e fa iled to exhaust i ts administrative remedie s. Def. Resp. 15-16; Timken Resp. 34-35. The Court of International Trade “shall, whe re a ppropriate , require the exhaustion of administrative re medies.” 28 U .S.C. § 2637(d) (2006). Any issues that remain of

conce rn to a responde nt in an administrative re view as of the time of the issuanc e of the preliminary results, including issues r aised prior to that issuance, must be ra ised in the ca se brief , which is filed with the Depa rtment within thirty

day s of the publication of the preliminary results. See19 C.F.R. § 351.309(c) (1)( ii), (c) (2) ( 2009). The c ourt is unable to find in NPB’ s case brief a n objection to 6

one or more instances in which Commerc e matche d a housed be aringmodel with an unhoused bear ing mode l and there by misapplied the model-match me thodology

. See Case B rief of Nippon Pillow Bl ock Co. Ltd. & FY H Bearing Units USA, Inc ., A-588-804 , (Jul y 10, 2007) (Admin. R. Doc. No. 492) (“N PB Case B rief” ). The c ourt must give e ffe ct to the re g ulatory provision and there by conclude that NPB, by

decliningto addre ss this poi nt in its case brief, f ailed to exhaust its administ rative r emedies on a ny matchingof housed a

nd unhoused bea

ringmodels that may have oc curr ed. NPB submits that the court should rec og nize the “futility ” exception to the exhaustion require ment, arguing a s follows: I t is clear that the identification of spe cific mismatche d models in NPB’s ca se brief w ould have be en futile. Commerc e has not e stablished a proc ess by which NPB c ould raise unr easona ble model compar isons. And, in the 15th administrative revie w wher e NPB identified a list of unre asonable model

The re g ulation provides that “[t] he ca se brief must present all ar g uments that continue in 6 the submitter’s view to be r eleva nt to the Secre tary ’s . . . final re sults, including any arguments prese nted bef

ore the date of

publication of the pre liminary deter mination or preliminary

results.” 19 C.F.R. § 351.309(c) (2) ( 2009).Consol. Court No. 07-00377 P age 32

compar isons, Com merc e did not conduct a compre hensive a

naly sis of the unrea sonable model c omparisons. Reply Br . in Supp. of the Mot. for J . upon the Ag ency R. Subm itted on behalf of Pls. Nippon Pill ow B lock Co. L td. & F YH B ear ing Units USA I nc. 11 (“NPB Reply”). N PB’s futility argument does not persua de the c ourt. “To show f utilit y , a par

ty must demonstrate that it ‘would be re quired to g o throug h obviously useless motions in order to pre serve [i ts] rig hts.’” Mittal Steel Point Lisas L td. v. United States , 548 F.3d 1375, 1384 ( Fe d. Cir. 2008) (quoting Corus Staal BV v. United States , 502 F.3d 1370, 1379 ( Fe d. Cir. 2007)). NPB has not made a convincingargument as to why raisingin its case brie f its objection to the Depa rtment’s matchingof a house d bear ing w ith an unhoused bea ringwould have be en obviously useless. NPB points to no Depar

tmental communication from whic h the cour t could discern that Commerce w ould have r efuse d to addre ss a re spondent’s timely objection that a pa

rticular match was made inconsistently

with the model-match me thodology

. In alleg ing a

second mismatch, NPB argues that the De partment unre asonably compar ed bear ings w ith collars to bear ings w ithout collars. NPB Mem. 15. Spec ifically , NPB c ites the matches Commerc e made for two be aringmodels sold in the United States, claiming that Commerce inc orre ctly

compar ed two spec ific U.S. models, identified by model number, to a specific J apane se model. Id .; see also NPB Supplemental Que stionnaire 13. NPB argues that it

was unre asonable for Commerc e to match the two U .S. models, which are “cy lindrical bore bear ings that are fix ed at the sha ft using se t screw s,” to the Japanese mode l, which is “a cylindrical bore bear ing w ith an ecc entric c ollar on the outside of the inner ringfor lockingto the shaft.” N PB Mem. 15.Consol. Court No. 07-00377 P age 33

Her e also, the c ourt conc ludes that NPB’ s case brief doe s not ex haust administrative

reme dies. The c ourt is unable to find within the ca se brief a spec ific objec tion to the matching of bear ings de signe d to be sec ured to shaf ts with set screws to those de signe d to be sec ured to shaf ts with ecc entric c ollars. SeeNPB Case Br ief. The court c oncludes that NPB has not exhausted its administrative re medies on the issue of Commerc e’s matc hing of the two set-sc rewbear ings to the ec centr ic collar

bearing. NPB ra ises a futility

argument with respec t to this second c ontested match. SeeNPB Reply 9. Despite some mer it in thi s argument, the cour t concludes that an exception to the exhaustion requirement is not war rante d here . Absent a c hang e in the model-match methodology , Commerce w ould not have conside red a specific objection to the matching of NPB’s be aring s that attach to the sha ft with set scre ws with an NPB be aringthat attache s by means of a

n ecc entric c ollar, and in that sense raisingthe sec ond contested match in the ca se brief w ould have be en futile. As discusse d later in this opinion, NPB proposed in a supplemental questionnaire r esponse that Commerc e incor porate into the model-match methodolog y additional phy sical cha

rac teristics, including the pre sence or abse nce of a collar to attach the be aring

to a shaft. NPB Supplemental Questionnaire 11-13. Althoug h NPB discussed in its ca se brief cer tain phy sical cha

rac teristics of its bear ings f or the De partment to consider in its m odel-matc h methodology , e.g. , ty

pes of se als and lubrica

nts and construc tion using ce ramic materials, NPB , curiously , omitted from the discussion in its case brief any ref ere nce to incor

poratingphy sical char acte ristics into the methodology that would prec lude matchingof collar ed bea ring s with bear ings that attach to the sha ft by other mea

ns, such as set sc rew s. See NPB Case Br ief 4. The shortcoming in NPB’s futility argument as to the matching of the set- scre w bea

ring s with theConsol. Court No. 07-00377 P age 34

collare d bear ing ste ms from its failure to ra ise in its case brie f the re lated issue of the rele vant phy sical cha

rac teristics. The c ourt ca nnot conclude that it would have bee n obviously useless for NPB to have done so. Ac cording to the Dec ision Memorandum, Commerce appea rs to have followed a

g ener al policy

of not consider ing pr oposed cha ng es to the model-matc h methodology that are raised f

or the fir st tim e in the ca se brief , Dec ision Mem . 22, but Comm erc e did not specific ally

state that any

such question ra ised in a supplemental que stionnaire re sponse

nece ssarily

would be re

jected a s untimely

. c. Matc hes Claimed Inappropr iate by NSK In its Rul e 56.2 Motion for Judgment, NSK points to matches g ener ated by the new methodology

that would not have oc curr ed under the family

methodology

as evide nce that the new methodolog y

impermissibly

matches dissimilar merc handise. NSK Mem. 16- 18; NSK Reply 4-7. NSK stated that in its case brief be fore Commerce “ NSK . . . identified spec ific examples of eg reg ious dissi milar matche s that were the direc t result of allowingvaria nce in the eig ht char acte ristics.” NSK Mem. 16 (c iting to Case B rief on B ehalf of NSK L td. & Af

filiated Companies, A-588-804, 3- 4, Ex hibit 14 (J uly 9, 2007) (Admin. R. Doc. N o. 517) (“NSK Case Br ief” ); NSK Reply

4, 8. In its case br ief, NSK pre sented a char t and associated discussion identifying how

the “ne w model methodolog y matches a

U.S. bear ing . . . w ith three home models . . . that are signific antly differ ent.” NSK Case Br ief 3. Contrary to the implication in NSK’s Rul e 56.2 Motion for Judgment, the c hart a nd discussion in NSK’s case br ief do not alleg e that the identifie d “egreg ious dissi milar matche s” actua lly wer e made by

the Depa rtment in AFB s 17. SeeNSK Mem. 16-18; NSK Case B rief 3- 4. As discussed pre viously , the model-matc h methodology is based on a pr inciple of matc hing aConsol. Court No. 07-00377 P age 35

bear ing mode l sold in t he United States with a sing le model sold in the comparison mar ket. The court c annot conc lude from NSK’ s alleg ations that this principle was not followed in AF Bs 17 with respec t to NSK’s subject merc handise. Due to the absenc e of a specific alleg ation that the “egreg ious dissi milar matche s” NSK identifies a ctually occur red, the court c onstrues the discussion in NSK’s case br ief to be a lluding to potential matche s that NSK believes would be permissible under the sumdev and DI FMER, not ac tual matches the Depa rtment made in the revie ws at issue in this case. N SK’s argument reduc es to a c ontention that the new model- match methodology

theore tically

could re sult in m atchingmodels under the ne w methodolog y that would have be en re

jected unde r the old methodolog y . For the re asons discussed pre viously in this Opinion and Order , the cour t rejec ts this arg ument. 5. Asahi’s Obje ction to the Matchingof Standard B ear ings w ith High- Temper ature Be aring s Asahi ar g ues that Commerce impermissibly matched “ standard be aring s” that Asahi sold in the United States to “hig h temperature be aring s” that Asahi sold in its home market of Japan. Asahi Mem. 5. Asa

hi argues that re cord e vidence establishes that its high tempe rature bear ings have sig nificant phy sical diffe renc es and diff ere nt end uses than standa rd bea ring s and ar e not approximately

equal in commer cial value to standard be aring s. Id. at 10. Specific ally , Asahi argues that its high tempe rature bearings diff er f rom standar d bear ings w ith respec t to lubricants, seals, interna l clear ance s and slinge rs ( i.e. , fittings that dire ct lubrication) and that hig h temperature be aring s sometimes have ha rdene d, heat- stabiliz ed ring s. Id. at 6-8. Asa hi argues that it was impermissible under 19 U.S.C. § 1677(16)( B) for Commerc e to match the hig h temperature be aring s with standard be aring s beca use the for

mer a re not like standa

rd bea ring s in component mater ials, particular ly lubricants, ar e ada

pted for ha

rsh environme nts and there foreConsol. Court No. 07-00377 Page 36

are not used for like purposes, and are not approximately equal in commercial value. Id. at 8-10. Further, Asahi contends that high temperature bearings “sell for a much higher price much more than the costs would indicate, thus making the difmer adjustment ineffective.” Id. at 8. In the new model-match methodology, Commerce first matches bearings according to four physical characteristics. AFBs 15 Decision Mem. 19. As discussed above, Commerce designated in AFBs 17 seven design types: angular contact, self-aligning, deep groove, integral shaft, thrust ball, housed bearing, and insert bearing. Decision Mem. 60. According to the Decision Memorandum, Asahi proposed during the review that Commerce recognize additional physical characteristics associated with high temperature bearings. Decision Mem. 24. Commerce rejected that proposal based on a finding that the proposal was made for the first time in Asahi’s case brief, a finding supported by the record evidence. Id. at 22, 24. Unlike NPB, Asahi does not argue before the court that Commerce impermissibly rejected its proposal due to timing. Instead, Asahi makes the general claim that the matching of its standard bearings with its high temperature bearings was inconsistent with statutory requirements for determining the foreign like product. The court rejects this claim. Commerce grounded its decision to apply the model-match methodology in 19 U.S.C. § 1677(16)(B). Decision Mem. 14 (“We developed a revised methodology in order to reflect more accurately the intent of section 771(16)(B) of the Act [19 U.S.C. § 1677(16)(B)] which is to compare the subject merchandise to the single most-similar comparison-market model.”). As the court discussed supra , that statutory provision does not require that the foreign like product have precisely the same component materials and end uses as the subject merchandise. See19 U.S.C. § 1677(16)(B) (referring to merchandise “ like ” the subject merchandise in “componentConsol. Court No. 07-00377 P age 37

materia ls” and “ in the purposes for which used” (empha sis added)) . The provision re quires that the merc handise be “ approximately equal in commer cial value .” Id. (empha sis added). A sahi’s g ener al contention that hig h temperature be aring s have hig her pr ices re lative to standard be aring s than their c osts would indicate does not entitle Asahi to re lief on its claim that Commerce exceede d its statutory

authority in matching high te mperature be aring s with standard be aring s. That the DI FMER adjustment, which is g rounded in va riable c osts of production and not in price s, does not adjust perfec tlyfor diff ere nces in c ommercia l value is not a convinc ing r eason why the cour t must reject the ne w model-matc h methodology . The De partment’s r eliance on the DI FMER limit and DI FMER adjustment, when c ombined with other fe ature s of the model-match methodology , rea sonably eff ectuate the statutory

require ment that the like produc t be approximately

equal in compone nt value to the subjec t mercha ndise. See Koy o I

, 66 F.3d at 1209. Moreove r, Commerce has discre tion under the statutory languag e to addr ess unique phy sical cha

rac teristics of hig h temperature be aring s in its m odel-matc h methodology , on a revie w-by -re view basis, but it also has discre tion not to do s o wher e, as he re, A sahi has fa iled to show that the statute re quired such a result and a lso failed to ra ise the question until its case brief. Commerce a cted r easona

bly in concludingthat the timing of A sahi’s proposa l did not allow a full opportunity

to decide whether

to make a c hang e to the methodolog y . As the De partment

rec og nized, such a cha

ng e would af

fec t the trea

tment acc orded to mer chandise of other responde nts. For both of the re asons discussed a bove, the c ourt reje cts Asahi’s c laim that Comm erc e acte d contra

ry to 19 U.S.C. § 1677(16)(B ) in AF Bs 17 by applying the new model- matchConsol. Court No. 07-00377 P age 38

methodology

so as to match Asa

hi’s U.S. sales of standa

rd bea ring s with high tempe rature bear ings sold in the home mar ket. Howe ver, N PB make s a similar claim that, for rea sons discussed below, Commerc e must consider on r emand. Should Commerce a lter the model-ma tch methodology

as applied in AF Bs 17 in re sponse to NPB’s c laim, it may consider whether

it is appropr iate to apply

that chang e with re spect to other pla intiffs in this case. 6. NPB’s Propose d Additional Phy sical Chara cter istics for the Model-Ma tch Methodolog y As does Asa

hi, NPB cla ims that Com merc e er red in re fusing to incorporate ce rtain additional phy sical cha

rac teristics into the new model-ma tch methodolog y

for use in determining matches of

simil ar be aring s. NPB Mem. 2, 8, 10. Similar to Asahi’s ar g ument is NPB’s argument that the model-matc h methodology as applied in AF Bs 17, by ignor ing the se additional phy sical cha

rac teristics, impermissibly matched sta

ndard be aring s that NPB sold in the United States to high tempe rature bear ings a nd other spec ialized bearing s that NPB sold in its home marke t in J apan. Id. at 10-11. NPB proposed to Commerce , and re iterate s in its Rule 56.2 motion, that the model-match methodolog y , at a minimum, should m atch be aring s acc ordingto ty pes of se als ( e.g. , standard or heat- proof) , ty

pes of g rea se ( e.g. , standard or heat- proof) , cer amic as opposed to non-c era

mic, diameter

of a se cond inner

dimension, diameter of

a sec ond outer dimension, diameter of

a sec ond width dimension, and diameter of a third width dimension. Id. at 11. Duringthe re view, Commerce ref used to consider

the merits of NPB ’s ar g ument for additional phy sical cha

rac teristics, reje cting the ar g ument as havingbeen ma de too late in the revie ws. Commerce stated in the De cision Memorandum that “ as we have stated bef ore, w e welcome interested pa

rties to provide c omments on what additional phy sical cha rac teristics weConsol. Court No. 07-00377 P age 39

should take into acc ount in our model-matchingmethodology ” but that “the time to make these sug g estions is at the beg inning of a re view so we can solicit comments fr om other intere sted parties, not in the ca se brief afte r we have issued the preliminary results and it is too late in the conduct of

the re views to ana ly

ze and/or implement the sug g estions.” Dec ision Mem. 16. Commerce ba sed its rejec tion of NPB’s pr oposal on a findingof fa ct that “[n]o i ntere sted party , including N PB, submitted any comments or made any

sug g estions on the model-matching methodology

in these administrative re views prior to the c ase br iefs.” Dec ision Mem. 22. Commerce f

ound, specific ally , that “[a]s i t did in AFBs 16 , NPB c hose to wait until it[ ] submitt ed its case brief to f ile any comments.” Id. The e vidence of re cord doe s not support, and instead contra dicts, these finding s. NPB aske d Commerce to c onsider additional phy sical char acte ristics in its response to the Depa rtment’s supplemental que stionnaire, which N PB filed on Dec ember

8, 2006, six months prior to the J une 6, 2007 publication of the Preliminary Results. SeeNPB Supplemental Que stionnaire 10-13. I n that response , NPB urg ed that if Commerce a

pplied the new mode l-match methodolog y in these re views, it should include additional char acte ristics, which “a re important a

nd must be taken into ac count spec ifically as fac tors deter

mining the most similar model.” NPB Supplementa l Questionnaire 13. N PB descr ibed seve ral propose d new c hara cter istics: ty pes of se als, ty

pes of grea se, whe ther a

bear ing is a ce ramic or

a non-c era

mic bear ing, inne r ringdiameter s, ty pes of sling ers, whe ther the be aring is a housed or unhouse d bear ing, a nd whether

a bea ringis collared or

uncollare d. Id . at 10-13. The proposa l in the supplemental questionnaire response was hig hly simil ar to the a

rgument NPB made in its case brief a

nd reiter ates be fore the cour t, which advoc ates a dditional chara cter istics for ty pes of se als, ty

pes of g rea se, whe ther or not a bear ing is c era

mic, diameter

of a se cond innerConsol. Court No. 07-00377 P age 40

dimension, diameter of

a sec ond outer dimension, diameter of a se cond width dimension, and diameter of a third width dimension. NPB Me m. 11; seeNPB Case Br ief 4-6. I mplicitly acknow ledg ing Commerc e’s e rrone ous findings a s to the timi ng of NPB’ s proposal, def

endant c riticizes the timi ng of that proposa l, stating that “ [i ]nst ead of proposing additional criter ia at the be g inning of the re view, NPB first made its proposal in a D ece mber 2006 supplemental questionnaire and later in its admini strative ca se brief , which we re submitted, respe ctively , five months and 11 months after Commerce’ s J uly

2006 initiation of the underlying administrative re view.” D ef. Resp. 12. Commerc e, howe ver, ba sed its refusa l to consider NPB ’s proposal on its err oneous findingthat NPB did not make its proposal until its case br ief. See Dec ision Mem. 22. Contrary to the premise of

defe ndant’s ar g ument, Commerce ne ver ma de a specific finding that it could not consider the mer its of NPB’s proposa l for additional phy sical char acte ristics, as set for

th in the Dece mber 8, 2006 supplementa l questionnaire r esponse, due to the date on which the supplementa l questionnaire r esponse wa s filed. Ther efor e, the c ourt

rema nds for re consideration the Depar tment’s decision to reje ct NPB’ s proposal. 7. NTN’s Claim that Commerce Unlawf ully Rejecte d NTN’s Proposa l for Additional B all Be aringDesig n Ty

pes As discussed above , in the new model- match methodolog y Commerce f

irst matches bear ings a ccor ding to f

our phy sical cha

rac teristics: load direc tion, bearingdesig n, number of rows of r olling ele ments, and pre cision rating

. AFBs 15 Dec ision Mem. 19. As also discussed previously , Commerce de signated in AFB s 17 seven de sign ty pes: ang ular c ontact, self- alig ning, deep groove, integral shaf t, thrust ball, housed bear ing, a nd insert bea

ring

. Dec ision Mem. 60. NTN c laims that the g roup of se ven desig n ty pes desig nated by

Commerce f

or AF Bs 17 “ fails toConsol. Court No. 07-00377 P age 41

acc ount for the va

riations prese nt in NTN’s bea ring s” and that as a re sult Com merc e “f ailed to fulfill its obl igation to match ‘similar’ U.S. and home mar ket models” a

nd “match[ed] phy sically and func tionally

differ ent produc ts.” NTN Me m. 24-25. Duringthe administrative re view, NTN proposed that Commerc e adopt numer ous additional ball bear ing de sign ty pes “tha t it used in the normal cour se of its business” and r eporte d to Comm erc e during the re views. NTN Me m. 24. Commerce r ejec ted the proposa l. Dec ision Mem. 59-60. In concludingthe re views, Commerce considere d NTN’s be aringmodels “equa lly simil ar in component mater ial or mater ials for model-ma tching purposes,” rea soning that all share a ball

as a r olling ele ment and ca n be cla ssified into one of the se ven re cog nized design ty pes. Id

. at 60. Commerce stated that NTN’ s reque sted “be aring -desig n desig nations were , on many

occa sions, dist inguisha

ble due to a sing le eleme nt of diffe renc e or a n element of

differ ence that is not pertinent.” Id. at 61 (c iting, as e x amples, “a differ ent width of inner r ace or the ty pe of bor e, the ty pe of pillow mater ial (i.e., c ast iron vs. steel), the prese nce or absenc e of r

ubber r ings or

the prese nce or

absenc e of a

dust cover, e tc.”) . Commerce f urther e x plained that some of N TN’s reque sts for sepa

rate desig n ty

pe desig nations “re sult in di ffe renc es in product c hara cter istics such as load dir ection, load r ating , number of r ows, etc.,” for whic h Commerce a lrea dy acc ounts in the new model- matchingmethodology

. Id. (providingan example in which “N TN differ entiates a

ng ular-c ontact bea

ringmodels into separate desig n ty pes base d on an ang le of point-of-c ontact or the number of points-of -conta ct,” c hara cter istics that Com merc e conside red to “cor relate direc tly

with the load ratings a

nd phy sical dimensions as well as, on oc casion, the prec ision rating of

bear ings” ). F inally , Commerce c oncluded that a specific application for

one bear ing ma

y differ from the spe cific a

pplication of anothe r with which the be aringis matched,Consol. Court No. 07-00377 P age 42

explaining, as it had in prior a dminist rative r eviews, that the function or a pplication of diffe rent bear ings, standingalone, did not nec essar ily war rant a separ ate de sign de signation because it is the rolling element that is dispositive as to whether a bea ringcan be considere d simil ar w ith respe ct to the purposes f

or which be aring s are used. Id. NTN c ontends that its “repor ted desig n ty

pes ca ptured the sig nificant diff ere nces be tween bear ings more acc urate ly

than the De partment’s de sign ty pes” a nd states that it provided “a descr iption of eac h desig n, including the basis on which NTNbelieved tha t the desig n ty

pe descr ibed a unique be aring , and dra wing s and picture s evidenc ing the differ ence s betwee n bear ings that the Depa

rtment would otherwise match.” N TN Mem. 25. NTNstates that it provided de scriptions of its bearingdesig ns divided into six teen se parate sec tions, with each section setting forth a written description usi ng pag es fr om NTN’s mate rials demonstrating pictorially

the written diff

ere nces. Id . at 26. Acc ordingto NTN, Commerce had ample opportunity

to reque st clarify

ing inf ormation but asked only

a sing le question with respe ct to NTN’s de sign ty

pes, i.e. , whether

NTN ha d sales of c ombination bearing s incorporating de epg roove a nd angular-c ontact bea

ring s. Id . at 25. NTN spe cifica lly takes issue with the fa ct that the desig n ty

pes used do not ac count for be aring s with elements of more than one de sign ty pe. Id . at 26. NTN of

fer s the example of a be aringunit that incorporate s a dust cover , emphasizing “the r easoningbehind sepa rate desig n ty

pes for housed and inser

t bear ings, i.e. , eac h incorporates an additional par

t that allows it to be used for a specia liz ed purpose .” Id . at 27. NTN a rgues that Commerce is inconsistent in reje cting the dust cover desig n while allowinga distinction betwee n housed and inser

t bear ings. Id . Acc ording ly , NTN a sks that the court re mand the F inal ResultsConsol. Court No. 07-00377 P age 43

and instruct Commerce to calculate NTN’ s marg in using the de sign ty pes submitted by

NTN. Id . at 28. Def endant r esponds that NTN f ailed to establish seve ral points: that the differ ence s amongdesig n ty

pes we re “ so signific ant” a s to make insufficie nt the seven de sign ty pes desig nated by

Commerce, that Comm erc e’s DI FMER adjustment could not ac count for the differ ence s, and that NTN’ s “numerous pr oposed desig n ty pes ar e nec essar

y to [ e]nsure matche s of compa rable products whe n Commerce is fa ced w ith selectingsimil ar me rcha ndise bec ause there are no sales of ide ntical merc handise.” Def . Resp. 25. The Court of Appe als for the Fe dera l Circuit, in Koyo III , addre ssed a similar issue ra ised by NTN in a pr ior administrative re view, holding that “NTNhas not demonstrate d that Commerce’ s choice of desig n ty pes, includingits adjustments, was unrea sonable” and that “e ven if Commerce had ac cepte d NTN’s pr oposals in the past, it was not require d to do so in future revie ws.” Koyo III

, 551 F.3d at 1292. The Court of International Trade also addre ssed a similar issue in JTEKT I

, 33 CI T at __, 675 F . Supp. 2d at 1227-29. In JTEKT I , the Court of International Trade “obser ve[d] that some of the a dditional design- ty pe categ ories propose d by NTN a ppear to describe ball bear ings that fall within one, and only one, of Commerc e’s a cce pted desig n-ty pe categ ories.” JTEKT I

, 33 CI T at __, 675 F . Supp. 2d at 1228. Wi th respec t to the bear ings that fell within a single desig n ty pe, the c ourt aff

irmed Commerce ’s deter

mination. See Id. at __, 675 F. Supp. 2d at 1228- 29. Howeve r, with respe ct to other de sign ty pes that “a

ppear to fall within more than one of the Depa rtment’s desig n-ty

pe categ ories,” the court re manded f or Commerce to e x plain its methodology and re asoningfor c lassifying a bear ing in one desig n ty

peConsol. Court No. 07-00377 P age 44

as opposed to anothe r. Id. at __, 675 F. Supp. 2d at 1228- 29. As it did in i ts challeng e to the final re sults of the prior administrative re view, NTNraises this spec ific objec tion in support of its claim. See NTN Mem. 26 ( “The Depa rtment’s desig n ty

pes do not take into ac count bea ring s that contain ele ments of more tha n one design ty

pe re cog nized by

the Depa rtment.”). Commerc e, in this admini strative re view, did not explain how it categ orized bear ings that could be cla ssified

acc ordingto more than one desig n ty pe. See Dec ision Mem. 59-62. Althoug h it might be supposed that Commerce , in that instance, a pplies tie breaking r

ules identical or similar to those by which it chooses a

match fr om among potential matches of bear ings f

or which de sign ty

pe is not an issue, Commerce did not address this point in responding to NTN’s ar g ument. Be cause Commerce ha s failed to addr ess NTN’ s argument by explaining its treatment of be aring s that can fit within two design ty

pes, the c ourt will direct Commerce to resolve this issue upon rema nd. C. NSK’s Challeng e to the De duction by Commerce of

Certain “A dditional Bene fit Ex penses” In Deter mining the Constructe d Ex port Price of NSK’s Subject Merc handise When determiningconstructe d export price, Commerce must deduct expenses associated with the sale of subje ct merc handise fr om the price at which that subjec t mercha ndise is first sold in the United States to an unaf filiated purc haser

if those expenses ar e incur red by , or for

the

acc ount of, the produc er, e x porter, or the af filiated seller

in the United States. 19 U.S.C. § 1677a(d) (1) ( 2006). The r egulation states that in establishing CEP, “the Sec reta ry will make adjustments for expenses assoc iated with commer cial ac tiviti es in the United States that re late to the sale to a

n unaff iliated purcha ser, no matter wher e or when paid.” 19 C.F.R. § 351.402(b) (2009).Consol. Court No. 07-00377 P age 45

In submitt ing its data , NSK acc ounted for its pay ments to a limit ed number of employ ees in the United States who ar e Japanese nationals by including the base sa lary paid and by excluding the a dditional benefits paid. NSK Mem. 9-10. N SK expl ains that for ma ny prior revie ws Commerce acc epted NSK’ s repor ting of salarie s exclusive of benef its but t hen in the fiftee nth administrative revie w “de cided to deduc t additional J apane se worke r expenses fr om CEP.” Id . at 11. NSK ar g ues that the a dditional benefit expense “a rose not bec ause the individuals in question happened to be loca ted in the United States, but bec ause the y happene d to be Japanese nationals.” Id . at 23. NSK maintains that “the Japanese worke r bene fits at issue did not arise out of the sale of A FB s in the United States; they arose befor e the AF B 17 U .S. sales took place out of

NSK’s leg al obligation to pay these be nefits g ener ally

to J apane se nationals” and that, ther efor e, the wor ker be nefits constitute g ener al expenses incurr ed by NSK for a ll sales reg ardle ss of the location of the purcha ser. Id . at 24. As NSK ac knowledg es, seeNSK Mem. 11, the Court of I nternational Trade previously has upheld the D epar

tment’s deter

mination to deduct from CEP both the base sala ries and the additional benef

it ex penses in the f

ifteenth a dminist rative r eview. T he Court of Appe als in Koyo III aff irmed the Court of International Trade ’s holding: The a dditional benefits NSK paid we re e x penses incur red f or employ ees whose work re lated to United States sales. N SK chose to use Japanese -national employ ees in the United States in connec tion with it s sales there . Those bene fits wer e par t of the employ ees’ compensation that NSK paid. The Court of International Trade proper ly conclude d that “ther e is no diffe renc e betwe en these additional benef

its and the base sa lary

that NSK has admitted Commerce proper ly deducte d from the [constructe d export price].” Koyo III , 551 F.3d at 1293 (internal c itation omit ted), aff’g Koyo II , 31 CI T 1512, 516 F. Supp. 2d 1323. NSK, in its challeng e to the F inal Results, sets forth as to these a dminist rative r eviewsConsol. Court No. 07-00377 P age 46

the same le g al issue that was pr esente d in Koyo III . NSK Mem. 11. NSK maintains, howeve r, that the deter

mination of the issue in this adminis trative re view is unlawful be cause [c] erta in benef

it ex penses NSK incur

red in the United States on behalf of J apane se worke rs . . . ar e not spec ifically related to the United States, nor c an they be tra ced to a

ny U.S. sales of subjec t mercha ndise, bec ause the same be nefits ar e provided to Japanese w orker s resident in other c ountries outside J apan. Id . at 11-12. NSK a

rgues, fur ther, that this ex pense a

rose not bec ause the individuals in question happened to be loca ted in the United States, but becausethey happe ned to be J apanese nationals . That is, even be fore they

had lef t J apan to a ssist t heir U.S. collea g ues, eve n befor e a single AFB had lef

t the fac tory

in J apan to be sold in the United States, J apane se law oblig ated NSK to pay these a dditional benefits on beha lf of these J apane se nationals. Id . at 23 (e mphasis added) . The fa ct that J apane se law ma y have r equire d NSK to provide

cer tain benef its to t he Japanese nationals is not relevant to the inquiry of whe ther these benef

it expenses are deductible f rom the price at which the me rcha ndise is first sold in the United States. Commerce, in the D ecision Memora ndum, expl ained that ba sed on NSK’s re plies in its questionnaire r esponses, “ there is no dispute that the J apane se worke rs in question are eng ag ed in economic a ctivity

occur ringin the United States and their a ctivities relate to sa les to unaff iliated purcha sers in the United States.” Dec ision Mem. 54. As Commerce rec og nized, the crux of the inquiry is whether the worke rs re ceive d the bene fits in question, and whether those worke rs wer e supporting sa les in the United States of the subjec t mercha ndise to unaff

iliated purcha sers. Substantial recor d evidenc e supports the finding s that the worke rs did rec eive the be nefits at issue and that the wor

kers we re suppor

ting the U .S. sales to unaffiliated pur chase rs. NSK’s argument that these be nefit “e x penses a re not spec ifically

related to the United States, nor c an they be tra ced to a

ny U.S. sales of subjec t mercha ndise, bec ause the same be nefits ar e provide dConsol. Court No. 07-00377 P age 47

to J apane se worke rs re sident in other countrie s outside J apan,” NSK Mem. 11-12, is a nonsequitur that does not re fute Commerc e’s f actua l findings. The court, ther efor e, will aff irm this aspec t of the F inal Results. D. Commerce ’s Calculation of CEP for Cer tain of Aisin’s Subject Merc handise To deter mined the weig hted-avera g e dumping marg in for Aisin in AFB s 17, Commerce calc ulated CEP for a la

rg e number

of Aisin’s sales of

ball bear ings in the United States by using cost and sale s data for

further -manufa cture d g oods, i.e. , automotive transmissions. See Dec ision Mem

. 62-64; Aisin Mem. 2. Acc ordingto Aisin, [a] s a conse quence of applying the full loss on certain tra nsmissi ons to an individual component ( i.e. , bear ing) and tre ating that amount as “dumping ,” the Depa rtment’s ca lculations resulted in a $2.00 be aringattrac ting dumpingin excess of $1,000 per

unit, i.e ., a dumping marg in in ex cess of 50,000 perc ent, despite the fa ct that the vast majority of this loss relates to components other than bear ings. Aisin Mem. 2. Ba sed on Commerce ’s deter mination of CEP, C ommerce calc ulated a w eig htedaver ag e dumpingmarg in of 6.15%. Final Results , 72 Fe d. Reg . at 58,054. Aisin claims that the methodology

Commerce a

pplied was unre asonable and yielded an a bsurd re sult. Aisin M em. 11. Be fore the cour

t, Comm erc e re quested a

voluntary

rema nd “to examine the methodolog y it used to calculate Aisin’s sales of c erta in automotive service parts manuf actur ed in the United States, incorpora ting be aring s produce d in J apan, a nd sold below the produc tion cost of the automotive service part.” Def

.’s Am. Mot. for Remand 2. In the Fir st Remand Redeter mination, Com merc e re vised its calculation of CEP for

cer tain U.S. sales made by

Aisin and, as a r esult, determined a dumping mar g in of 1.13%, signific antly

lower tha n the 6.15% Commerc e had de termined in the F inal Results. First RemandConsol. Court No. 07-00377 P age 48

Redeter mination 1; Final Results , 72 Fe d. Reg . at 58,054. Commerce explained that in sit uations wher e the va lue adde d in the United States throug h further manufa cturing( i.e. , the manufa cture of automotive transmissions) exceeds substantially the value of

the subject mer chandise ( i.e. , ball bear ings) , the possibilit y

that the marg in may

be distorted incr ease s as the propor tion of the value added in the United States become s ext reme ly larg e re lative to the value of the subject

merc handise. F irst Remand Redeter mination 3-4. Acc ording ly , Commerce e x cluded f rom its calc ulation sales for which the mar g in calculated in AFB s 17 was g reater than the production cost of the imported be aringand for which the f

inished product wa s sold at prices be low the production cost of the transmission. Id . at 4. Commerce calc ulated the we ighte d-ave rag e dumping mar g in with data for the rema ining sa les and then a pplied that marg in to the excluded sales as w ell. Id . at 4-5. Neither Aisin nor Timken took a position in response to the F irst Remand Redeter mination. Aisin C omments 1; Timken Com ments 1. Be cause the cour t concludes that the Fir st Remand Redeter mination complies with the Order issued on September 2, 2009 a nd no party has stated its opposition to t he F irst Remand Redeter mination, the court will aff irm the resolution in the First Remand Rede termination of the CEP of the sale s of Aisin’s subject

merc handise a s aff

ecte d by the use of the cost and sale s data for the furthe r-manuf

actur ed g oods. Howeve r, it is premature and unwa rra nted for the court to af

firm the De partment’s 1.13% rede termination of Aisin’s we ighte d-ave rag e dumping marg in. Order , Sept. 2, 2009. As did

cer tain other re spondents in the revie w, Aisin contested the c alculation of its weig hted-avera g e dumping mar g in acc ordingto the Depa rtment’s zeroingmethodology

.Consol. Court No. 07-00377 P age 49

Aisin did not raise the zeroingissue in a comment submission to t he De partment or to the court with re spect to the F irst Remand Redeter mination. For that re ason, the c ourt conc ludes that Aisin did not ex haust its administ rative r emedies a s to its challeng e to the De partment’s use of zeroing methodology

in this l itigation. See M

ittal St eel Point Lisas L td. , 548 F.3d at 1383-84 (F ed. Cir. 2008). How ever , the cour t also conclude s that the rec og nized ex ception to the exhaustion requirement for an interve ning judicia l decision applies in this circumstanc e. As the Supreme Court has state d, There may

alway s be exceptional ca ses or pa rticular c ircumstance s which will prompt a re viewingor appe llate cour t, where injusti ce mig ht otherwise r esult, to consider que stions of law which we re ne ither pre ssed nor pa ssed upon by the court or a dminist rative a g ency below. Hormel v . Helve ring , 312 U.S. 552 (1941). The Court of Appea ls in Dongbu , draw ing a distinction wit h its past decisions on zeroing, se t aside a judg ment aff irming the use of zeroingin the final re sults of an administrative re view. Dongbu Steel Co. , 635 F.3d at 1371-73. The Court of Appe als order ed that a r emand wa s require d so that the Depa rtment could explain its interpre ting the la

ng uag e of 19 U .S.C. § 1677(35) inconsistently with respec t to the use of zeroing in investigations and the use of zeroingin administrative revie ws. Be cause Aisin’s comment submission on t he F irst Remand Redeter mination was due on January 15, 2010, prior to the issuance of

the opinion in Dongbu on Marc h 31, 2011, the cour t, exercising its discre tion, waives the exhaustion requirement a s to Asahi’s claim conte sting the use of zeroingin AFB s 17. Be cause the cour

t is remandingfor f

urther e x planation the De partment’s de cision to apply its zeroing methodology

in AFB s 17, the court de clines to aff irm the rede termination of Aisin’s weig hted-avera g e dumping marg in.Consol. Court No. 07-00377 P age 50 III. C O N C L U S I O N For the re asons discussed in the for eg oing, the court will aff irm in part, and r emand in part, the F inal Results. ORDER Upon consider ation of all pape rs and pr ocee dings he rein, it is here by ORDERED that the final de termination of the United States D epar tment of Commerce (“Commerc e” or

the “De partment” ), published as Ball Bearings &Parts Thereof from France, Germany , Italy, Japan, Singapore, & the United Kingdom: Final Results of Antidumping Duty Admin. Rev iews & Rescission of Rev iew in Part , 72 Fe d. Reg . 58,053 (Oc t. 12, 2007) (“ Final Results ”), be , and her eby

is, AFF I RMED I

N PART and REMANDED to the D epar tment for rede termination as provide d in this Opini on and Or der; it is further ORDERED that the Rule 56.2 motions for judgme nt upon the ag ency rec ord of Asa

hi Seiko Co., L td. (“Asa

hi”) a nd NSK Corporation, NSK L td., and NSK Prec ision America, I nc. (collec tively , “NSK”) be, and he reby are , DENI ED; it is further ORDERED that the Rule 56.2 motions for judgme nt upon the ag ency rec ord of Aisin Seiki Com pany , L td. and Aisin Holdings of Americ a, Inc. (c ollectively “Aisin”), JTEKT Corporation, for

merly Koy o Seiko Company , L td. and Koyo Corporation of U.S.A. ( collectively , “JTEKT”), Na chi Tec hnology , Inc., Na chi-F ujikoshi C orporation, and Nac hi America , Inc. (collec tively

“Na chi”) , FYH Be aring

Units USA, I nc. and N ippon Pil low Bloc k Company L td. (collec tively , “NPB ”), a

nd Americ an NTNBe aringManufa cturingCorp., NTN B earing Corporation of Ame rica , NTN B ower Corporation, NTN Corpor ation, NTN Dr iveshaft, Inc., and NTN-B CA Corporation (c ollectively , “NTN ”), be , and her eby are , GRANTED I

N PART and DENI ED I

N PART as provided in this Opinion and Orde r; it is further ORDERED that Commerce, on r emand, sha ll (1) re consider its dec ision to apply its zeroing methodology

in the Final Results and cha ng e that dec ision or, alterna tively , provide a

n explanation for its ex press or implied construingof 19 U.S.C. § 1677(35) inconsistently with respe ct to antidumping duty investigations and administrative revie ws; (2) re consider its re jection of JTEKT’s challeng e to the third spec ific match, a s identified in this Opinion and Order , for which the infor

mation that Comm erc e excluded fr om the rec ord ra ises the fa ctual issue of whether the methodolog y

was misapplied; (3) r econside r its rejec tion of NPB’s pr oposal to include additional phy sical cha rac teristics in the model-match me thodology ; and (4) r econside r NTN’s pr oposal to incorporate into the model-match me thodology additional desig n-ty

pe cate g ories and e x plain its rejection of that proposal with respe ct to individual bearing s descr ibed in more than one desig n ty pe; it is furtherConsol. Court No. 07-00377 P age 51

ORDERED that the re solution i n the Redete rmination Pursuant to Remand (“F irst Remand Redete rmination”) of the issue of the c onstructed e x port price of the sale s of Aisin’s subject merc handise that wa s aff ecte d by the use of the cost and sale s data for the furthe rmanufa cture d g oods be, and he reby is, AFF I RMED; it i s further ORDERED that Commerce sha ll redete rmine the we ighte d-ave rag e dumping marg ins of plaintiffs, as appr opriate, in c omply ing w ith this Opinion and Orde r; it is further ORDERED that Commerce sha ll have ninety (90) da y s from the date of this Opinion and Orde r in which to file its rede termination upon rema nd (“Sec ond Remand Redete rmination”), which shall comply

with all directives in this Opinion and Orde r; it is further ORDERED that plaintiffs shall have thirty (30) da y s from the filingof the Sec ond Remand Redete rmination in which to file comments there on; it is further ORDERED that defe ndant and de fenda nt-intervenor

The Timken Company

(“Timken” ) shall have thirty

(30) da y s from the filingof plaintiffs’ c omments to file comments; it i s further ORDERED that defe ndant-interve nor Timken’s Motion to Vac ate Pre liminary Injunction Wit h Respect to Na chi be, a nd here by is, DENI ED; and it is further ORDERED that plaintiff NTN’ s Motion to S tay Fur ther Proce eding s Pending the Finality of Ne w Antidumping Ma rg in Methodology

or, in the Alternative, Motion to All ow Fur ther B riefingand plaintiff NTN’s Amende d Unopposed Motion for L eave to File a Re ply to Def endant’ s Opposition to t he Motion to St ay be, and he reby

are , DENI ED.

/s/ Timot hy

C. St ance u Timothy C. St ance u J udg e Dated: Ma

y 5, 2011 New Y ork, Ne w York