NOTE: Pursuant to Fed . Cir. R. 47.6, this dispo s ition is not citable as precede nt. It is a pu blic record. 

## United States Court of Appeals for the Federal Circuit

04-1469, -1492 NISSEI SANGYO AMERICA, LTD. (now Hitachi High Technol ogies America, Inc.), Plaintiff-Appellee,

v. UNITED STATES, Defendant-Appellant, and MICRON TECHNOLOGY, INC., Defendant-Appellant.

______ ____________________ DECIDED: July 1, 2005

______ ____________________ Before NEWMAN, MAYER, and CLEVENGER, Circuit Judges

. CLEVENGER, Circuit Judge

. The government appeals the final decisi on of the United St ates Court of International Trade granting su mmary judgment to Nissei Sangyo America, Ltd. ("the appellee") by finding that the instructions to liquidate appellee's entries at the cash deposit rate were arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. See Nissei Sangyo Am., Lt d. v. United States , No. 00-00113 (Ct. Int'l Trade Aug. 18, 2003) (" Nissei Sangyo "). The Court of Inte rnational Trade held that the Department of Commerce ("Commerce") had deviated from its past practice of liquidating entries at the manufacturer's review rate when it ordered liquidation ofappellee's entries at the cash deposit rate. Becaus e the arguments in favor of the appellee ar e foreclosed by the decisions in Consolidat ed Bearings Co. v. United States , 348 F.3d 997 (Fed. Cir. 2003) (" Consolidat ed Bearings I "), and Consolidat ed Bearing s Co. v. United States , No. 04-1556 (Fed. Cir. June 21, 2005) (" Consolidated Bearing s II "), which collectiv ely held that an unreviewed reseller is not statutorily entitled to the manufacturer's review rate and that Comme rce in the past c onsistently liquidate d unreviewed entries from unrelated rese llers at the cash deposit rate, we reverse the decision of the Court of International Trade. I The appellee is an importer of Dynamic Random Access Memory semiconductors of one megabit or more ("DRAMs" ) . The appellee purchased it s merchandise for import from a reseller not associated with the manufacturer of the DRAMs. T he manufacturer of the DRAMs imported by the appellee was LG Semicon Co., Ltd. ("LG"), formerly Goldstar Elec tron Co., Ltd., which was under review in antidumping proceedings. An antidumping duty order was in effect when the appelle e imported the subject DRAMs. See Antidumping Duty Order and Amended F i nal Determination: Dy namic Random Access Me mory Semiconduct ors of One Megabit and Above from the Republic of Korea, 58 Fed. Reg. 27,520 (May 10, 1993). Upon entry, the appellee was required to post cash deposits at the manufacturer's rate as estimated antidumping duties. Administrative review of DRAMs made by multiple manufacturers that wer e imported into the Unit ed States from October 29, 199 2 to April 30, 1994 ("POR 1") was initiated. I n itiation of An tidumpin g and Cou n tervailin g Duty Administrative Reviews and

04-1469, -1492 2Request for Revocation in Part, 59 Fed. Reg. 30,770 (June 15, 1994). In this review, the dumping margin for LG was calculated to be 0.00%. Dynamic Random Access Memory S e miconduct o rs of One Megabit or A bove From the Republic of Korea; Final Results of Antidumping Duty Administrati ve Review, 61 Fed. Reg. 20,216, 20,222 (May 6, 1996). The appellee did not participat e in this administrative review. Beginning on June 15, 1995, a second peri od of rev i ew ("POR 2") from May 1, 1994 to April 30, 1 995, was initiat ed. Initiation of Antidumping a n d Countervailing Duty Administrative Reviews, 60 Fed. Reg. 31,447 (June 15, 1995). For this period, the dumping m a rgin for LG was determined to be de minimis at 0.01%. Dynamic Random Access Memory Semiconductors of One Megabit or Ab ove From the Republic of Korea; Final Results of Antidumping Duty Administrative Review, 62 Fed. Reg. 965, 968 (Jan. 7, 1997). The appellee als o di d not participate in this review. Micron Technology, Inc. ("Micron"), a domestic producer of D R AMs, sued in opposition to the rates determined for LG in POR 1 and POR 2. T he Court of International Trade and this court su stained the rates determined for LG. See Micron Tech., Inc. v. United States , 243 F.3d 1301 (Fed. Cir. 2001); Micron T e ch., Inc. v. United States , 44 F. Supp. 2d 216 (Ct. Int'l Trade 1999); Micron Tech., Inc. v. United States , 40 F. Supp. 2d 481 (Ct

. Int'l Trade 1999). Commerce subsequently issued liquidation instructions which lifted suspens ion of the POR 1 an d POR 2 entries and directed Customs to liquidate appellee's entr ies at the cash deposit rate. Appellee's entries were not given the benefit of the de minimis dumping rate determined for LG in the adminis trative revi ew.

04-1469, -1492 3The appellee appealed to the Court of International T r ade, whic h found that the liquidation instructions issued by Commerce were arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law and entered summary judgment in favor of the appellee. When it iss ued its opinion, the Court of International Tr ade did not have the benefit of this c ourt's decision in either Consolidated Bearings I or Consolidat ed Bearings II

. The gov ernment appeals the dec i sion of the Court of International Trade argu ing that Commerce had a consistent past practice of liquidating unreview ed resellers at the cash depos it rate. We have jurisdiction pursuant to 28 U

. S.C. § 1295(a)(5) (2000).
II A dec ision of the Cour t of International Trade reviewing an antidumping dec ision by Commerce is reviewed "anew" by this court by reapply i ng the same standard of review applied by the Court of Internati onal Trade when it reviewed the decision by Commerce. Consolidated Bearings I , 348 F.3d at 1004; Mitsubishi Heavy Indus., Ltd. v. United States , 275 F.3d 1056, 1060 (Fed. Cir. 2001) . Therefore, C o mmerce's liquidation instructions should be set aside only if they are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance wit h law." Se e 5 U.S.C. § 706(2)(A) (2000); Consolidated Bearings I , 348 F.3d at 1004. III This case presents the same issue as Consolidated Bearings II , which iss u ed from this court on June 21, 2005. In the pr esent case, the Court of International Trade found that the liquidat ion instructions for ap pellee's entries were an arbitrary deviation from past practice because t he instructions suffered the same problems as those in

04-1469, -1492 4Consolidat ed Bearings Co. v. United States , 166 F. Supp. 2d 580 (Ct. Int'l Trade 2001). See Niss e i Sangyo , slip op. at 15. We have since reversed Consolidated Bearings , 166 F. Supp. 2d 580, in Consolidated Bear ings I , and to the extent that the Court of International Trade decision in this case relies on its op inion in that case, those arguments are no longer sound. Because a "reseller" rate determination was never requested by these importers or their suppliers, Cons olidated Bearings I directs that the appellee does not have a statutory right to liquidation at the ma nufacturer's review rate. See 348 F.3d at 1006. What remains is whether Commerce devia t ed arbitrarily from a past consistent practice when it liquidated appe llee's unreviewed entries at the cash depos it rate. Thi s court has recently addressed t h is iss ue and held t hat Commerce "has consistently liquidated unreviewed entries from unrelated resellers at the cash deposit rate." Consolidat ed Bearings II , slip op. at 11. Consolidated Bearings II directly a p p lies to the facts of appellee's case. In particular, we note that the evidenc e relied upon by both Consolidat ed Bearings and Commerce to support their positions in the Consolidated Bearings II appeal is substantially the same as that offered by the respective parties in the present case. Therefore, for the reasons set forth in Cons olidated Bear ings II , the decision of the Court of International Trade is reversed.

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