Nsk Ltd. v. United States

United States Court of Appeals for the Federal Circuit

2007-1114, -1128, -1129

NSK LTD., NSK CORPORATION, and NSK PRECISION AMERICA, INC.,

Plaintiffs-Appellants,

and

AMERICAN NTN BEARING MANUFACTURING CORPORATION,
NTN-BCA CORPORATION, NTN-DRIVESHAFT, INC.,
NTN BEARING CORPORATION OF AMERICA, and NTN CORPORATION,

Plaintiffs-Appellants,

and

KOYO CORPORATION OF U.S.A. and KOYO SEIKO CO., LTD.,

Plaintiffs-Appellants,

v.

UNITED STATES,

Defendant-Appellee,
and

TIMKEN US CORPORATION,

Defendant-Appellee.

Matthew P. Jaffe, Crowell & Moring LLP, of Washington, DC, for plaintiffs-
appellants NSK Ltd, NSK Corporation, and NSK Precision America, Inc. With him on
the brief were Robert A. Lipstein and Alexander H. Schaefer. Of counsel was Sobia
Haque.

Diane A. MacDonald, Baker & Mckenzie LLP, of Chicago, Illinois, argued for
plaintiffs-appellants American NTN Bearing Manufacturing Corporation, et al. With her
on the brief were Donald J. Unger and Louisa V. Carney.

Neil R. Ellis, Sidney Austin LLP, of Washington, DC, argued for plaintiffs-
appellants KOYO Corporation, et al. With him on the brief was Neil C. Pratt. Of
counsel were Jill Caiazzo and Lawrence R. Walders.
 Claudia Burke, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, argued for defendant-appellee
United States. On the brief were Peter D. Keisler, Acting Attorney General, Jeanne E.
Davidson, Director, Patricia M. McCarthy, Assistant Director, and Michael Panzera,
Attorney. Of counsel on the brief were Jennifer I. Johnson, Mykhaylo Gryzlov, and
Nithya Nagarajan, Attorneys, United States Department of Commerce, Office of Chief
Counsel for Import Administration, of Washington, DC.

Geert DePrest, Stewart and Stewart, of Washington, DC, argued for defendant-
appellee Timken US Corporation. With him on the brief were Terence P. Stewart and
William A. Fennell. Of counsel was Lane S. Hurewitz.

James P. Durling, Vinson & Elkins LLP, of Washington, DC, for Amicus Curiae.
With him on the brief were Matthew R. Nicely and David T. Hardin.

Appealed from: United States Court of International Trade

Judge Evan J. Wallach
United States Court of Appeals for the Federal Circuit

2007-1114, -1128, -1129

NSK LTD., NSK CORPORATION, and NSK PRECISION AMERICA, INC.,

Plaintiffs-Appellants,

and

AMERICAN NTN BEARING MANUFACTURING CORPORATION,
NTN-BCA CORPORATION, NTN-DRIVESHAFT, INC.,
NTN BEARING CORPORATION OF AMERICA, and NTN CORPORATION,

Plaintiffs-Appellants,

and

KOYO CORPORATION OF U.S.A. and KOYO SEIKO CO., LTD.,

Plaintiffs-Appellants,

v.

UNITED STATES,

Defendant-Appellee,

and

TIMKEN US CORPORATION,

Defendant-Appellee.

__________________________

DECIDED: December 14, 2007
__________________________

Before LOURIE, DYK, and PROST, Circuit Judges.

PROST, Circuit Judge.
 NSK Ltd., NSK Corporation, and NSK Precision America, Inc. (collectively,

“NSK”), American NTN Bearing Manufacturing Corporation, NTN-BCA Corporation,

NTN-Driveshaft, Inc., NTN Bearing Corporation of America, and NTN Corporation

(collectively, “NTN”), and Koyo Corporation of U.S.A. and Koyo Seiko Co., Ltd.

(collectively, “Koyo”) appeal a January 31, 2006, decision of the United States Court of

International Trade affirming various determinations made by the United States

Department of Commerce (“Commerce”) in the administrative review of the antidumping

duty order on antifriction bearings imported from Japan, covering the period of May 1,

2002, through April 30, 2003, and dismissing a challenge by NSK to Commerce’s

recommendation to change model-match methodologies in future reviews. NSK Ltd. v.

United States, 416 F. Supp. 2d 1334 (Ct. Int’l Trade 2006) (“NSK I”). Koyo and NTN

also appeal an October 23, 2006, decision of the Court of International Trade affirming

other determinations made by Commerce as part of the administrative review. NSK Ltd.

v. United States, 462 F. Supp. 2d 1254 (Ct. Int’l Trade 2006) (“NSK II”). Because

Commerce’s determinations are supported by substantial evidence and in accordance

with law, and because NSK’s challenge was not ripe for adjudication, we affirm.

I. BACKGROUND

On September 15, 2004, Commerce published in the Federal Register the final

results of the administrative review of the antidumping duty orders on antifriction

bearings and parts thereof from France, Germany, Italy, Japan, Singapore, and the

United Kingdom, covering the period from May 1, 2002, through April 30, 2002.

Antifriction Bearings and Parts Thereof From France, Germany, Italy, Japan, Singapore,

and the United Kingdom: Final Results of Antidumping Duty Administrative Reviews,

2007-1114, -1128, -1129 2
Rescission of Administrative Reviews in Part, and Determination to Revoke Order in

Part, 69 Fed. Reg. 55,574 (“Final Results”). In these results, Commerce found

weighted-average dumping margins for Koyo, NTN, and NSK of 5.56%, 2.74%, and

2.46%, respectively. Id. at 55,580. Koyo, NTN, and NSK each filed a challenge to

Commerce’s determinations, and their cases were consolidated into a single action on

March 4, 2005.

On January 31, 2006, the Court of International Trade affirmed various

determinations made by Commerce that had been challenged by Koyo, NTN, and NSK,

including Commerce’s practice of zeroing negative dumping margins in its weighted-

average dumping margin calculations. NSK I, 416 F. Supp. 2d at 1338-39. The Court

of International Trade also dismissed for lack of jurisdiction a challenge by NSK to a

recommendation by Commerce that it change its model-match methodology in future

administrative reviews. Id. at 1339-40. The Court of International Trade, however,

rejected Commerce’s differential treatment of positive and negative home market billing

adjustments by Koyo that Commerce contended were equally distortive, and remanded

Commerce’s determination to include certain small-volume, high-profit sales by NTN in

its value calculations for further explanation. Id. at 1340-44. In response, Commerce

rejected both Koyo’s positive and negative billing adjustments and provided further

explanation for its inclusion of NTN’s small-volume, high-profit sales. The Court of

International Trade affirmed. NSK II, 462 F. Supp. 2d at 1260. Koyo, NTN, and NSK

now appeal to this court. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(5).

2007-1114, -1128, -1129 3
 II. DISCUSSION

A. Standard of Review

This court reviews antidumping determinations made by Commerce using the

same standard of review used by the Court of International Trade. F.Lii De Cecco di

Filippo Fara S. Martino S.p.A. v. United States, 216 F.3d 1027, 1031 (Fed. Cir. 2000).

This court will uphold Commerce’s determinations unless they are unsupported by

“substantial evidence on the record, or otherwise not in accordance with law.” Id.

Questions of law, including questions of statutory interpretation, are reviewed de novo;

evidentiary decisions are reviewed for abuse of discretion; and findings of fact are

reviewed for clear error. Id.

B. Commerce’s Zeroing of Negative Dumping Margins

On appeal, NSK, NTN, and Koyo each challenge Commerce’s long-standing

practice of “zeroing” negative dumping margins when computing antidumping duties.

Under the antidumping statute, Commerce is required to impose antidumping

duties on imported merchandise that “is being, or is likely to be, sold in the United

States at less than fair value” to the detriment of a domestic industry. 19 U.S.C. § 1673.

Commerce calculates these antidumping duties by first calculating the amount by which

the price a producer charges for the subject merchandise in its home market, i.e., the

“normal value,” exceeds the price charged in the United States, i.e., the “export price.”

This amount is referred to as the “dumping margin.” Commerce then calculates a

weighted average of the dumping margins for the producer/exporter by dividing the

aggregate dumping margins for that producer/exporter by the aggregate export prices

charged by that producer/exporter. Id. § 1677(35)(B).

2007-1114, -1128, -1129 4
 Occasionally, the price charged for the subject merchandise in the United States

is greater than the price charged for the same merchandise in the home market. This

results in a negative dumping margin for that merchandise. In these situations,

Commerce sets the negative dumping margins to zero when calculating the weighted

average dumping margin. By doing so, the sum of the dumping margins calculated on

the individual transactions is not reduced by the negative amount of the dumping

margins. This practice is referred to as “zeroing” and has been repeatedly upheld by

this court. See, e.g., Timken Co. v. United States, 354 F.3d 1334 (Fed. Cir. 2004), cert.

denied 543 U.S. 976 (2004); Corus Staal BV v. Dep’t of Commerce, 395 F.3d 1343

(Fed. Cir. 2005), cert. denied 546 U.S. 1089 (2006); Corus Staal BV v. United States,

502 F.3d 1370 (Fed. Cir. 2007).

Recently, however, the Government of Japan initiated a World Trade

Organization (“WTO”) challenge of Commerce’s zeroing practice. On January 9, 2007,

the WTO Appellate Body issued a decision in which it found that Commerce’s zeroing

practice, as applied to the administrative review at issue in this case, is inconsistent with

the United States’ international obligations. See Appellate Body Report, United States –

Measures Relating to Zeroing and Sunset Reviews, WT/DS322/AB/R (Jan. 9, 2007).

The WTO Dispute Resolution Body adopted this decision on January 23, 2007. In

response, on February 20, 2007, the United States issued a statement that “it intends to

comply in this dispute with its WTO obligations and will be considering carefully how to

do so.” See Press Release, U.S. Mission to the United Nations in Geneva, U.S.

Statements at the WTO Dispute Settlement Body, Delivered by David P. Shark, Deputy

Chief of Mission, U.S. Mission to the WTO (Feb. 20, 2007).

2007-1114, -1128, -1129 5
 In light of this statement, NSK, NTN, and Koyo seek to have this case remanded

to Commerce to allow the agency to implement the WTO decision. Commerce,

however, opposes such a remand. Although Commerce has stated that it intends to

comply with its WTO obligations, it contends that it only plans to discontinue zeroing in

investigations, not in administrative reviews such as this one.

As stated by this court in Corus Staal, “we . . . refuse to overturn Commerce’s

zeroing practice based on any ruling by the WTO or other international body unless and

until such ruling has been adopted pursuant to the specified statutory scheme.” 395

F.3d at 1349; cf. Suramerica de Aleaciones Laminadas, C.A. v. United States, 966 F.2d

660, 668 (Fed. Cir. 1992) (“While we acknowledge Congress’s interest in complying with

U.S. responsibilities under the GATT, we are bound not by what we think Congress

should or perhaps wanted to do, but by what Congress in fact did.”). In this case,

despite Commerce’s public statement that it intended to comply with its WTO

obligations, the WTO decision rejecting zeroing has not yet been implemented by

Commerce. Moreover, the manner in which the WTO decision will be implemented by

Commerce is far from clear, as illustrated by the parties’ disagreement over whether

Commerce will (or should) apply the WTO decision to administrative reviews such as

this one. Situations such as this are just one example of the reasons this court refrains

from commenting on international body decisions unless and until they have been

adopted pursuant to the specified statutory scheme. Unless and until that happens, this

court has nothing to review.

For similar reasons, a remand in this case would not be proper. Although a

remand may afford the parties more time for Commerce to implement the WTO

2007-1114, -1128, -1129 6
decision, Commerce has already stated that such a remand would not result in the

outcome Koyo, NTN, and NSK desire, i.e., the implementation of the WTO decision in

this administrative review. Accordingly, until Commerce abandons zeroing in

administrative reviews such as this one, a remand in this case would be unavailing.

Therefore, because Commerce’s zeroing practice is in accordance with our well-

established precedent, until Commerce officially abandons the practice pursuant to the

specified statutory scheme, we affirm its continued use in this case.

C. Koyo’s Billing Adjustment Allocations

Koyo also appeals Commerce’s determination that Koyo’s allocation of certain

home market billing adjustments was unreasonably distortive.

As it has in previous reviews of the antidumping order, Koyo reported a number

of billing adjustments to its home market prices in its initial questionnaire responses,

including a number of customer-specific, lump-sum billing adjustments for which Koyo

claimed to lack more specific information. Consistent with its long-standing practice of

accepting adjustments that are not reported on a transaction-specific basis when it was

not feasible for the party to report the adjustment on a more specific basis, provided the

allocation method the party used does not cause unreasonable inaccuracies or

distortions, see 19 C.F.R. § 351.401(g), Commerce accepted these allocations in its

Preliminary Results. After reviewing a sample of the sales over which Koyo allocated

lump-sum billing adjustments, however, Commerce noted that the samples included

billing adjustments that were incurred over “time periods that did not correspond to the

[period of review]” and that “actually occurred on specific models.” On the basis of this

report, Timken US Corp. (“Timken”) challenged Koyo’s lump-sum billing adjustment

2007-1114, -1128, -1129 7
allocations. After further analyzing Koyo’s billing adjustment allocation, Commerce

ultimately rejected Koyo’s allocation in its Final Results, finding that “the allocation

methodology Koyo used causes unreasonable inaccuracies and distortions.”

Nonetheless, Commerce initially continued to use the allegedly distortive

allocation for positive billing adjustments, i.e., those likely to increase the weighted-

average dumping margin, but not negative billing adjustments, i.e., those likely to

decrease the weighted-average dumping margin. According to Commerce, this would

act as an “incentive” for Koyo to report its billing adjustments on Commerce’s preferred

transaction-specific basis. The Court of International Trade, however, rejected this

differential treatment of positive and negative billing adjustments as punitive and not in

accordance with law. NSK I, 416 F. Supp. 2d at 1342. In response, Commerce denied

all of Koyo’s lump-sum billing adjustments as unreasonably distortive, and the Court of

International Trade affirmed. NSK II, 462 F. Supp. 2d at 1259.

On appeal, Koyo argues that (1) Commerce’s determination that Koyo’s

allocation of its lump-sum billing adjustments is unreasonably distortive is contrary to

Commerce’s established criteria for making such a determination, (2) it was not given a

meaningful opportunity to demonstrate that its allocation of its lump-sum billing

adjustments is not distortive, and (3) Commerce’s decision to deny Koyo’s billing

adjustments is not supported by substantial evidence. We disagree.

Regarding Koyo’s argument that Commerce’s determination that Koyo’s

allocation is unreasonably distortive is contrary to its established criteria for making

such a determination, Commerce’s acceptance of an allocation methodology in a

previous review does not relieve a party of its burden of demonstrating the methodology

2007-1114, -1128, -1129 8
is non-distortive in the current review. See NTN Corp. v. United States, 306 F. Supp. 2d

1319, 1329 (Ct. Int’l Trade 2004), aff’d 125 Fed. Appx. 1011 (Fed. Cir. 2005). That said,

“[w]hen an agency deviates from a longstanding practice, it must explain why it has

done so.” Nucor Corp. v. United States, 414 F.3d 1331, 1340 (Fed. Cir. 2005). In this

case, Commerce explained that, although it accepted Koyo’s allocation methodology in

previous reviews, in this review it directly observed clear evidence of a substantial

distortion caused by the methodology. We construe that as a sufficient basis for

Commerce to abandon its long-standing acceptance of Koyo’s allocation methodology.

Despite this, Koyo contends that Commerce’s determination that Koyo’s billing

adjustment allocation is unreasonably distortive is not supported by substantial

evidence. In this case, Koyo totaled all billing adjustments on a customer-specific basis

and allocated the total adjustment over all sales to that customer.

By allocating billing adjustments to all sales to a customer, Koyo’s methodology

potentially shifts billing adjustments from sales that are not used in calculating normal

value to ones that are and vice versa. This could allow Koyo to spread positive billing

adjustments on models imported to the United States across those not imported to the

United States. Similarly, Koyo could spread negative billing adjustments on models not

imported to the United States across those that are imported to the United States. Both

of these would artificially deflate normal value for the imported goods and reduce the

dumping margin calculated for the item.

Allocating billing adjustments between sales that occurred outside of the period

of review with those that occurred during the period of review is equally prone to abuse,

as it would allow Koyo to offset dumping during the period of review with non-dumped

2007-1114, -1128, -1129 9
sales outside of the period of review. This would defeat the whole purpose of having

set periods of review for the administration of the antidumping order. Nonetheless, this

court has previously approved of Commerce’s adoption of Koyo’s billing adjustment

allocation methodology, based on Commerce’s determination, from the information

available to it at the time, that Koyo’s allocation methodology “did not unreasonably

distort the final adjustments” by improperly including out of scope sales or transactions

outside the period of review. NTN Bearing Corp. of Am. v. United States, 295 F.3d

1263, 1268 (Fed. Cir. 2002).

However, in this case, Commerce analyzed a sampling of Koyo’s lump-sum

billing adjustments and found that Koyo allocated lump-sum billing adjustments from

sales not used in calculating normal value to sales that are used in calculating normal

value. In other words, when Commerce examined a sample of the paper records

underlying Koyo’s billing adjustments, it found that some of the adjustments reviewed

related entirely to transactions outside either the scope of the antidumping order or the

period of review, yet were allocated in part to scope merchandise during the period of

review. In light of this finding, Commerce could reasonably require Koyo to

demonstrate that its allocation methodology was nondistortive overall (for example, by

using a broader sample of its underlying transactions), and Commerce did not err in

determining that Koyo had not made an adequate showing of nondistortion. More

importantly, Commerce found the distortive effect of this allocation to be substantial.

For example, Commerce found that Koyo allocated home-market billing adjustments

from products that did not belong in the same product family as any of the products

Koyo sold in the United States to products it did sell in the United States, significantly

2007-1114, -1128, -1129 10
distorting the normal value for those products. In light of the potentially distortive effect

of Koyo’s billing adjustment allocation, and the fact that Commerce found actual

distortion as a result of this allocation, we agree with the Court of International Trade

that Commerce’s determination that Koyo’s allocation is unreasonably distortive is

supported by substantial evidence.

Moreover, the fact that Koyo may or may not have been able to allocate its billing

adjustments in a more specific manner is irrelevant. Commerce is not required to

accept billing adjustments on an allocated basis. See 19 C.F.R. § 351.401(g)(1) (“The

Secretary may consider allocated . . . price adjustments when transaction-specific

reporting is not feasible.” (emphasis added)). When Commerce does accept allocated

billing adjustment, the party seeking a billing adjustment has the burden of establishing

to the satisfaction of the Secretary the amount and nature of a particular adjustment,

id. § 351.401(b)(1), and, if reporting on an allocated basis, that no more specific basis is

feasible and that the allocation methodology does not cause inaccuracies or distortions,

id. § 351.401(g)(2). Regardless of whether a more specific reporting basis is feasible,

the simple fact is that Koyo failed to demonstrate that its allocation methodology does

not cause inaccuracies or distortion. Accordingly, Commerce was within its rights to

reject Koyo’s billing adjustment allocation.

Furthermore, Commerce’s previous acceptance of Koyo’s allocation

methodology does not give Koyo a vested interest in continuing to use a system once it

has been found to be distortive. See NTN Corp., 306 F. Supp. 2d at 1329. As

mentioned above, the use of a non-transaction-specific allocation methodology is not a

right. See 19 C.F.R. § 351.401(b)(1). Regardless of the accounting problems Koyo

2007-1114, -1128, -1129 11
may face or the fact that Commerce previously attempted to accommodate them, the

simple fact is that, in this review, Koyo did not meet its burden of demonstrating that its

allocation methodology is not distortive. And while Koyo may contend that it was not

given a meaningful opportunity to attempt to do so, we disagree.

After Timken challenged Koyo’s lump-sum billing adjustments, Koyo had the

opportunity to respond in its administrative rebuttal case brief. However, rather than

substantively addressing Timken’s arguments, Koyo merely argued that its adjustments

had been accepted in prior reviews. The fact that Koyo did not take full advantage of

the opportunity to respond does not mean that Koyo was not given a meaningful one.

Accordingly, for the reasons discussed above, Commerce’s determination that

Koyo’s allocation of lump-sum billing adjustments is unreasonably distortive is affirmed. 1

D. Commerce’s Inclusion of NTN’s Small-Volume, High-Profit Sales

NTN challenges Commerce’s decision to include certain small-volume, high-profit

home market sales in its value calculations. According to NTN, this ignores the

statutory requirement that antidumping calculations only include sales made in the

“usual commercial quantities” and “in the ordinary course of trade.”

1
Koyo correctly urges that Commerce could not retroactively apply a more
stringent requirement for record-keeping than that in effect when the records were
created. See Princess Cruises, Inc. v. United States, 397 F.3d 1358, 1365-67 (Fed. Cir.
2005) (rejecting retroactive application of an administrative ruling requiring detailed
records that could not be reproduced with respect to past events). However, we do not
read Commerce’s remand determination as denying Koyo’s billing adjustment based on
a failure to keep transaction-specific electronic records. Instead, we read it as rejecting
Koyo’s billing adjustment allocation based on the fact that, in this case, it was distortive.
We do not view Commerce’s rejection of Koyo’s allocation as presenting a retroactivity
problem in this case.

2007-1114, -1128, -1129 12
 At issue are certain home market sales, such as “sales for maintenance and

repair” and “sales to research and development facilities for testing or evaluation,” that

NTN claims were aberrational in that they involved smaller quantities and yielded higher

profits than the majority of its other home market sales. Accordingly, NTN requested

that Commerce exclude them from its value calculations. Commerce, however, denied

NTN’s request, explaining that “high profits by themselves are not sufficient for

[Commerce] to determine that the sales are outside the ordinary course of trade” and

that “extraordinary characteristics” must be present which would make them

unrepresentative of the home market. NSK I, 416 F. Supp. 2d at 1343.

NTN appealed to the Court of International Trade, which initially concluded that

Commerce failed to provide adequate reasoning for its denial of NTN’s claim that

certain sales were outside the ordinary course of trade in light of the substantial

evidence and precedent supporting NTN’s position. Id. at 1344. However, after

remanding the issue to Commerce for it to further explain why NTN’s evidence was

insufficient, the Court of International Trade affirmed Commerce’s remand determination

to deny NTN’s request to exclude its small-volume, high-profit sales from Commerce’s

value calculations. NSK II, 462 F. Supp. 2d at 1260. According to the Court of

International Trade, Commerce had properly examined whether NTN’s sales were

“outside the ordinary course of trade” by analyzing the frequency of high profit sales, the

quantity of high profit sales relative to other sales, whether certain types of sales were in

the “ordinary course of trade,” and whether the high profit sales were sold in abnormally

low quantities. Id. As a result, the Court of International Trade found that the only

factor distinguishing NTN’s high profit sales from its other sales was the high profit itself.

2007-1114, -1128, -1129 13
Id. According to the Court of International Trade, that NTN was able to charge higher

prices on these sales did not make the sales extraordinary. Id. We agree.

Generally, the party requesting a price adjustment bears the evidentiary burden

of proving whether sales used in Commerce’s calculations are outside the ordinary

course of trade. See Torrington Co. v. United States, 127 F.3d 1077, 1081 (Fed. Cir.

1997). Absent adequate evidence to the contrary, Commerce may treat the sales as

within the ordinary course of trade. Id.

In the present case, NTN contends that the sales at issue were aberrational in

that they involved much smaller quantities and much higher profit margins than the

majority of NTN’s home market sales. That the sales in question may have been

miniscule compared to the majority of NTN’s home market sales, however, does not

mean that the sales were outside the ordinary course of trade or made in unusual

quantities. In fact, before the Court of International Trade, NTN described these small-

volume, high-profit sales as being made “in the general course of business . . . [and] on

a fairly regular basis.” NSK I, 416 F. Supp. 2d at 1342-43. Nor does the fact that NTN

was able to reap such high profits on these sales take them outside of the ordinary

course of trade. Small-volume sales often yield higher profit margins than large-volume

sales, as small-volume customers are typically unable to command volume discounts.

NTN, by its own admission, routinely made these small-volume, high-profit sales “in the

general course of business.” The sales may have represented a small fraction of NTN’s

business, but they were a regular part of its business nonetheless. Accordingly,

Commerce’s inclusion of NTN’s small-volume, high-profit sales in its value calculations

is affirmed.

2007-1114, -1128, -1129 14
 E. Commerce’s Model-Match Methodology

Lastly, NSK challenges what it characterizes as Commerce’s decision to

abandon its long-established practice of matching models using the “family approach” in

future administrative reviews.

During the course of the administrative review at issue in this case, Commerce

issued a memorandum indicating that it is considering changing the model-match

approach it uses for antidumping orders “in order to determine the single most similar

comparison-market model, taking advantage of intervening technological developments,

that make possible a more precise model match” in future reviews. NSK attempted to

challenge this “decision” before the Court of International Trade, but the court dismissed

NSK’s challenge for lack of jurisdiction, saying the issue was not ripe for adjudication.

NSK I, 416 F. Supp. 2d at 1340. We agree.

Generally, an agency decision is not ripe for judicial review until the allegedly

offending agency has adopted a final decision. Abbott Labs. v. Gardner, 387 U.S. 136,

149 (1967). As the Supreme Court has pointed out, this requirement is designed “to

prevent the courts . . . from entangling themselves in abstract disagreements over

administrative policies, and also to protect the agencies from judicial interference until

an administrative decision has been formalized and its effects felt in a concrete way by

the challenging parties.” Id. at 148-49.

Accordingly, in order to be a final decision, and therefore ripe for judicial review,

(1) there must be an agency action that marks “the consummation of the agency’s

decisionmaking process,” i.e., it must not be merely tentative or interlocutory, and (2)

2007-1114, -1128, -1129 15
“the action must be one by which rights or obligations have been determined, or from

which legal consequences will flow.” Bennett v. Spear, 520 U.S. 154, 177 (1997).

Although Commerce has recommended changing its model-match methodology,

Commerce has not yet abandoned its previous methodology or adopted a new one. In

fact, Commerce has publicly stated that it will change its “methodology only after parties

have had a meaningful opportunity to comment on the proposed change.” Commerce’s

recommendation to change its methodology in future administrative reviews was not, as

NSK contends, the “consummation of the agency’s decision-making process,” and thus

not a final decision. Accordingly, we affirm the Court of International Trade’s dismissal

of NSK’s challenge to Commerce’s recommendation.

III. CONCLUSION

Because Commerce’s determinations are supported by substantial evidence and

in accordance with law, and because NSK’s challenge to Commerce’s recommendation

to change its model-match methodology is unripe for adjudication, we affirm.

AFFIRMED

2007-1114, -1128, -1129 16