E5-3750. Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof from Japan: Notice of Court Decision Not in Harmony

AGENCY:

Import Administration, International Trade Administration, Department of Commerce

SUMMARY:

On June 27, 2005, the United States Court of International Trade (CIT) affirmed the Department of Commerce's (the Department's) redetermination on remand of the final results of the antidumping duty administrative reviews on antifriction bearings (other than tapered roller bearings) and parts thereof from Japan. See NSK Ltd. v. United States, Consol. Court No. 98-07-02527, slip op. 05-77 (CIT 2005). The Department is now issuing this notice of court decision not in harmony.

EFFECTIVE DATE:

July 14, 2005.

FOR FURTHER INFORMATION:

Yang Jin Chun or Richard Rimlinger, AD/CVD Operations, Office 5, Import Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone: [phone] or [phone], respectively.

SUPPLEMENTARY INFORMATION:

Background

On June 18, 1998, the Department published the final results of administrative reviews of the antidumping duty orders on antifriction bearings (other than tapered roller bearings) and parts thereof from Japan for the period May 1, 1996, through April 30, 1997. See Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof from France, et al.; Final Results of Antidumping Duty Administrative Reviews, 63 FR 33320 (June 18, 1998). NSK Ltd. and NSK Corporation (hereafter “NSK”) filed a lawsuit challenging the final results. On July 8, 2002, the CIT affirmed the Department's decision to classify NSK's repacking expenses as a selling expense under section 772(d)(1)(B) of the Tariff Act of 1930, as amended (the Act). See NSK Ltd. v. United States, 217 F. Supp 2d. 1291 (CIT 2002). NSK appealed the CIT's judgment to the United States Court of Appeals for the Federal Circuit (CAFC). The CAFC vacated and remanded the Department's decision to classify NSK's repacking expenses as selling expenses and not movement expenses under section 772(d)(1)(B) of the Act. On February 18, 2005, pursuant to the CAFC's decision, the CIT remanded this case to the Department to revisit its classification of U.S. repacking expenses as selling expenses and provide an explanation for the inconsistent treatment of U.S. repacking expense, U.S. warehousing expense, and U.S. expense for shipping from warehouse to customer. See NSK Ltd. v. United States, Consol. Court No. 98-07-02527, slip op. 05-26 (CIT 2005). In accordance with the CIT's remand order in NSK Ltd., slip op. 05-26, the Department filed its remand results on May 18, 2005. On June 27, 2005, the CIT affirmed the Department's final results of remand redetermination in their entirety. See NSK Ltd., slip op. 05-77.

The changes to our calculations with respect to NSK resulted in a change in the weighted-average margin for ball bearings (BBs) from 2.35 percent to 2.34 percent and a change in the weighted-average margin for cylindrical roller bearings (CRBs) from 2.21 percent to 2.19 percent for the period of review. Accordingly, absent an appeal, or, if appealed, upon a “conclusive” decision by the CAFC which is consistent with the CIT's decision, we will amend our final results of these reviews to reflect the recalculation of margins for NSK.

Suspension of Liquidation

The CAFC held that the Department must publish notice of a decision of the CIT or the CAFC which is not in harmony with the Department's determination. See The Timken Company v. United States, 893 F.2d 337, 341 (CAFC 1990). Publication of this notice fulfills that obligation. The CAFC also held that, in such a case, the Department must suspend liquidation until there is a “conclusive” decision in the action. Id. Therefore, the Department must suspend liquidation pending the expiration of the period to appeal the CIT's June 27, 2005, decision affirming the Department's remand results or pending a final decision of the CAFC if that decision is appealed.

Because entries of the BBs and CRBs from Japan produced by, exported to, or imported into the United States by NSK are currently being suspended pursuant to the court's injunction order in effect, the Department does not need to order U.S. Customs and Border Protection to suspend liquidation of affected entries. The Department will not order the lifting of the suspension of liquidation on entries of the BBs and CRBs made during the review period before a court decision in this lawsuit becomes final and conclusive.

We are issuing and publishing this notice in accordance with section 516A(c)(1) of the Act.

Dated: July 8, 2005.

Susan Kuhbach,

Acting Assistant Secretary for Import Administration.