Final Results of Redetermination Pursuant to Court Remand . NTN Bearing Corporation of America, American NTN Bearing Manufacturing Corporation and NTN Corporation; NSK Ltd. and NSK Corporation; and Koyo Seiko Co., Ltd. and Koyo Corporation of U.S.A. v. United States and The Timken Company . Consol. Court No. 98-01-00146, Slip Op. 02-07 (CIT January 24, 2002)

NTN Bearing Corporation of America, American NTN Bearing Manufacturing Corporation and NTN Corporation; NSK Ltd. and NSK Corporation; and Koyo Seiko Co., Ltd. and Koyo Corporation of U.S.A. v. United States and The Timken Company

Consol. Court No. 98-01-00146, Slip Op. 02-07 (CIT January 24, 2002)

Final Results of Redetermination Pursuant to Court Remand

Summary

On January 24, 2002, the U.S. Court of International Trade (the CIT) issued an order remanding to the Department of Commerce (the Department) the final results of the administrative reviews of the antidumping finding on tapered roller bearings (TRBs), four inches or less in outside diameter, and components thereof, from Japan (A-588-054), and the antidumping duty order on TRBs and parts thereof, finished or unfinished, from Japan (A-588-604). (See NTN Bearing Corporation of America, American NTN Bearing Manufacturing Corporation and NTN Corporation; NSK Ltd. and NSK Corporation; and Koyo Seiko Co., Ltd. and Koyo Corporation of U.S.A. v. United States and The Timken Company, 186 F.Supp. 2d 1257 (CIT January 24, 2002) (NTN)). The final results of these reviews covered the period October 1, 1995 through September 30, 1996.

In accordance with the CIT's order in NTN, we have made one change to the antidumping margin for NTN Corporation (NTN) for such merchandise entered between October 1, 1995 through September 30, 1996.⁽¹⁾ Furthermore, we have annulled all findings and conclusions made pursuant to the duty-absorption inquiry conducted for the subject reviews with respect to NTN, Koyo Seiko Co., Ltd. (Koyo), NSK Ltd. (NSK), and Fuji Heavy Industries (Fuji).

Background

On January 15, 1998, we published in the Federal Register the final results of the administrative reviews on TRBs from Japan for the period October 1, 1995, through September 30, 1996. See Tapered Roller Bearings and Parts Thereof, Finished and Unfinished, From Japan; and Tapered Roller Bearings, Four Inches or Less in Outside Diameter, and Components Thereof, From Japan; Final Results of Antidumping Duty Administrative Reviews, 63 FR 2558 (January 15, 1998), as amended, Tapered Roller Bearings and Parts Thereof, Finished and Unfinished, From Japan, and Tapered Roller Bearings, Four Inches or Less in Outside Diameter, and Components Thereof, From Japan; Amended Final Results of Antidumping Duty Administrative Reviews, 63 FR 13391 (March 19, 1998) (1995-1996 Final Results).

On January 24, 2002, the CIT remanded the 1995-1996 Final Results to the Department, ordering us to (1) annul all findings and conclusions made pursuant to the duty-absorption inquiry conducted for the subject reviews; and (2) exclude any transactions that were not supportedby consideration from NTN's United States sales database and to adjust the dumping margin accordingly. See NTN, 186 F. Supp 2d 1257.

On June 13, 2002, we released our draft results of redetermination to Koyo, NSK, NTN, and the petitioner, The Timken Company (Timken). On June 17, 2002, Koyo and NTN submitted comments to the Department regarding these draft results. On June 20, 2002, we received rebuttal comments from Timken.

Discussion

Duty Absorption

In NTN, the CIT instructed the Department to annul all findings and conclusions made pursuant to the duty-absorption inquiry conducted in the 1995-1996 Final Results. The Department hereby complies with the remand as directed by the CIT with respect to NTN, Koyo, NSK, and Fuji and annuls all findings and conclusions made pursuant to its duty-absorption inquiry conducted for the subject reviews. This change does not affect our antidumping duty weighted-average margin calculations or duty assessment rates for the respondents.

NTN's Zero-Priced United States Transactions

We included NTN's zero-priced U.S. sales in the calculation of the weighted-average dumping margin for the 1995-1996 Final Results. In light of the CAFC's decision in NSK Ltd. v. United States, 115 F.3d 965 (Fed. Cir. 1997) (NSK 1997), the CIT remanded the 1995-1996 Final Results to the Department to exclude NTN's zero-priced sales from the margin calculation because they lacked consideration. Therefore, in accordance with the CIT's instructions, we have excluded NTN's zero-priced transactions from NTN's U.S. sales database and have adjusted the dumping margin accordingly.

Comment: NTN contends the Department should have amended its margin calculation program by excluding those sales where gross unit price plus billing adjustments equals zero (i.e., GRSUPRU1 + BILADJ1U = 0), rather than those sales where gross unit price equals zero (i.e., GRSUPRU1 = 0). NTN argues that excluding sales where gross unit price plus billing adjustments equals zero properly reflects the CIT's order because such an exclusion captures sales that were zero-priced due to billing adjustments.

Timken responds there is no evidence on the record showing that sales zeroed by billing adjustments lack consideration. Timken states that NTN's arguments before the CIT, as well as the CIT's discussion of NTN's arguments, pertain to zero-priced U.S. sample sales. Specifically, Timken notes, NTN argued that zero-priced U.S. sample sales should be excluded from the margin calculation because they were not true sales and thus lacked consideration. Stating that the gross unit price of U.S. sample sales would typically be zero, Timken reasons it is logical to conclude these sales lack consideration. However, Timken contends, sales that are zero-priced as a result of billing adjustments do not necessarily constitute sample sales. Further, Timken argues that without supporting evidence, it is not reasonable to conclude that such sales lack consideration. Timken maintains that NTN does not explain the nature of its billing adjustments generally, nor does it identify any billing adjustments pertaining specifically to zero-priced sample sales. Timken argues that it was proper for the Department to eliminate those U.S. sales where gross unit price equals zero. In contrast, Timken argues, it was not proper for the Department to eliminate sales that were zero-priced due to billing adjustments.

Department's Position: We agree with Timken. In NTN, the CIT ordered us to exclude any sales that were not supported by consideration from NTN's United States sales database and to adjust the dumping margin accordingly. In order to comply with the CIT's instructions, we have excluded those sales where the gross unit price equaled zero before the deduction of any post-sale price adjustments. There is no evidence on the record suggesting that those sales which were in effect zero-priced due to post-sale billing adjustments lacked consideration. On the contrary, it is clear that merchandise sold at a price greater than zero did not constitute sample sales and, thus, did not lack consideration. Further, as noted by Timken, NTN does not identify any billing adjustments that pertain specifically to zero-priced sample sales. Therefore, we have complied with the CIT's order by eliminating only those sales where gross unit price equals zero.

Comment: NTN states that in accordance with the CIT's order, the Department's only change to the 1995-1996 Final Results involved the removal of NTN's zero-priced sales from the U.S. database. NTN argues that excluding these sales should have resulted in a lower dumping margin or, at a minimum, should have had no effect on the margin. Noting that its margin increased from 21.41 percent in the 1995-1996 Final Results to 21.48 percent in the draft remand results, NTN asserts some aspect of the CIT's order must not have been applied properly. Thus, NTN requests the Department recalculate its margin in order to properly reflect the CIT's order to remove NTN's zero-priced U.S. sales from the margin calculation.

Department's Position: We disagree with NTN. For these remand results we have fully complied with the CIT's instructions by eliminating NTN's zero-priced sales from its U.S. sales database and adjusting the margin accordingly. Nonetheless, we note that NTN's margin did increase from 21.41 to 21.48 percent. While preparing these results of redetermination we discovered that in calculating the 1995-1996 Final Results, we had inadvertently used the cost of production (COP) database submitted by NTN with its January 27, 1997 original questionnaire response, rather than the revised COP database submitted with NTN's April 14, 1997 supplemental questionnaire response. Therefore, we have used the COP database submitted on April 14, 1997, which supersedes the COP database submitted on January 27, 1997, to calculate these remand results. For further explanation, see "Final Remand Results for the 1995-1996 Administrative Review of the Antidumping Duty Order on Tapered Roller Bearings and Parts Thereof, Finished or Unfinished, From Japan (A-588-604); Analysis Memorandum for NTN Corporation (NTN)," dated June 24, 2002.

Final Results of Redetermination

As a result of our recalculation of the weighted-average antidumping duty margin for NTN in accordance with the remand order, we have determined the weighted-average dumping margin for NTN for the period October 1, 1995 through September 30, 1996 is 21.48 percent for the A-588-604 administrative review. Upon a final and conclusive court decision, the Department will publish a notice of amended final results reflecting the change in the margin calculation for NTN and will instruct the Customs Service to assess appropriate antidumping duties on entries of subject merchandise made during the period October 1, 1995 through September 30 1996.

_______________________

Joseph A. Spetrini
Acting Assistant Secretary
for Import Administration

_______________________
Date

1. NTN is not subject to the antidumping finding (A-588-054) on TRBs from Japan. Therefore, this change affects only the calculation of the NTN's margin for the antidumping duty order (A-588-604) on TRBs from Japan.