Slip Op. 02-88

UNITED STATES COURT OF INTERNATIONAL TRADE

BEFORE: SENIOR JUDGE NICHOLAS TSOUCALAS

______________________________________

:

NTN BEARING CORPORATION OF AMERICA, :

AMERICAN NTN BEARING MANUFACTURING :

CORPORATION and NTN CORPORATION; :

NSK LTD. and NSK CORPORATION; :

KOYO SEIKO CO., LTD. and KOYO :

CORPORATION OF U.S.A., :

:

Plaintiffs and :

Defendant-Intervenors, :

:

v. : Consol. Court No.

: 98-01-00146

UNITED STATES, :

:

Defendant, :

:

and :

:

THE TIMKEN COMPANY, :

:

Defendant-Intervenor :

and Plaintiff. :

_______________________________________ :

ORDER

On the above-captioned matter, the Court received the

following: (a) Draft Results of Redetermination Pursuant to Court

Remand (“Draft Results”) in NTN Bearing Corp. v. United States, 26

CIT ___, 186 F. Supp. 2d 1257 (2002), and Final Results of

Redetermination Pursuant to Court Remand (“Remand Results”) in NTN

Bearing Corp. v. United States, 26 CIT ___, 186 F. Supp. 2d 1257

(2002), issued by the United States Department of Commerce,

International Trade Administration (“Commerce”); (b) Comments
Consol. Court No. 98-01-00146 Page 2

1

Timken’s response addresses the arguments raised by NTN in

Preliminary Comments as if these comments were submitted by NTN in

response to Commerce’s Remand Results. The Court assumes that

Timken’s actions are caused by NTN’s failure to submit NTN’s

response to Commerce’s Remand Results. In the fashion analogous to

that of Timken, the Court assumes that NTN’s failure to submit

comments to Commerce’s Remand Results: (a) constitutes a waiver of

NTN’s right to submit comments to Commerce’s Remand Results; and

(b) indicates NTN’s desire to stand by the arguments raised by NTN

in NTN’s Preliminary Comments. 

Regarding the Remand Determination (“Preliminary Comments”) by NTN

Bearing Corporation of America, American NTN Bearing Manufacturing

Corporation and NTN Corporation (“NTN”) dated July 15, 2002, and

addressing Commerce’s Draft Results; and (c) a letter by The Timken

Company (“Timken”) of July 24, 2002, advising the Court of Timken’s

intent to file comments in response to those comments that might be

filed by NTN in response to Commerce’s Remand Results, and Timken’s

response to NTN’s comments regarding Commerce’s Remand Results

dated August 5, 2002.1 

In its Preliminary Comments, NTN asserts that Commerce erred

in refusing to exclude those sales where the gross unit price plus

billing adjustment equaled zero from NTN’s dumping margin. NTN

maintains that the Court’s order that mandated Commerce to exclude

NTN’s zero-priced sales from NTN’s dumping margin should have

encompassed NTN’s zero-priced sales as well as those NTN’s sales

where the gross unit price plus billing adjustment equaled zero.

Pointing to the fact that NTN’s margin was raised, rather than
Consol. Court No. 98-01-00146 Page 3

2 

Commerce initially relied on incorrect cost of production data

provided by NTN. Commerce corrected this oversight and,

consequently, recalculated NTN’s margin for Commerce’s Remand

Results. Had NTN been unhappy with Commerce’s recalculation, NTN

should have asserted its grievances accordingly. The Court,

however, fails to fancy a viable legal theory which prohibits an

agency from correcting its calculative error as long as the agency

applies the correct legal principle.

lowered, after Commerce has made Commerce’s recalculation, NTN

concludes that the abnormality of such effect is a per se

indication of Commerce’s misinterpretation of the Court’s order.

Commerce contends that Commerce’s actions were in accordance with

the Court’s order remanding the underlying case, and Timken

supports Commerce’s position. 

The Court agrees with Commerce and Timken. Indeed, a zeropriced sale (that is, a transaction made inherently for no

consideration) is a form of business dealing that is entirely

different in nature from a sale where the gross unit price plus

billing adjustment equaled zero (that is, a transaction made for a

consideration that was eventually offset by an adjustment given for

certain business reasons). Furthermore, the fact that NTN’s margin

rose as a result of Commerce’s recalculation has absolutely no

relevance to the issue of interpretation of the Court’s mandate,

since the change in margin was caused by Commerce’s correction of

a ministerial error.2 Therefore, this Court, having received and

reviewed the aforesaid documents holds that Commerce duly complied
Consol. Court No. 98-01-00146 Page 4

with the Court’s remand order, and it is hereby

ORDERED that the Remand Results are affirmed in their

entirety; and it is further

ORDERED that since all other issues have been decided, this

case is dismissed.

______________________________

NICHOLAS TSOUCALAS

 SENIOR JUDGE

Dated: August 12, 2002

New York, New York