                   NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
                     is not citable as precedent. It is a public record.

 United States Court of Appeals for the Federal Circuit

                                     04-1469, -1492

                         NISSEI SANGYO AMERICA, LTD.
                    (now Hitachi High Technologies 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 decision of the United States Court of

International Trade granting summary 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., Ltd. v. United States, No. 00-00113 (Ct.

Int'l Trade Aug. 18, 2003) ("Nissei Sangyo"). The Court of International 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 of
appellee's entries at the cash deposit rate. Because the arguments in favor of the

appellee are foreclosed by the decisions in Consolidated Bearings Co. v. United States,

348 F.3d 997 (Fed. Cir. 2003) ("Consolidated Bearings I"), and Consolidated Bearings

Co. v. United States, No. 04-1556 (Fed. Cir. June 21, 2005) ("Consolidated Bearings

II"), which collectively held that an unreviewed reseller is not statutorily entitled to the

manufacturer's review rate and that Commerce in the past consistently liquidated

unreviewed entries from unrelated resellers 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 its

merchandise for import from a reseller not associated with the manufacturer of the

DRAMs. The manufacturer of the DRAMs imported by the appellee was LG Semicon

Co., Ltd. ("LG"), formerly Goldstar Electron Co., Ltd., which was under review in

antidumping proceedings. An antidumping duty order was in effect when the appellee

imported the subject DRAMs.         See Antidumping Duty Order and Amended Final

Determination: Dynamic Random Access Memory Semiconductors 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 were

imported into the United States from October 29, 1992 to April 30, 1994 ("POR 1") was

initiated. Initiation of Antidumping and Countervailing Duty Administrative Reviews and




04-1469, -1492                           2
Request 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 Semiconductors of One Megabit or Above From the Republic of Korea; Final

Results of Antidumping Duty Administrative Review, 61 Fed. Reg. 20,216, 20,222

(May 6, 1996). The appellee did not participate in this administrative review.

       Beginning on June 15, 1995, a second period of review ("POR 2") from May 1,

1994 to April 30, 1995, was initiated. Initiation of Antidumping and Countervailing Duty

Administrative Reviews, 60 Fed. Reg. 31,447 (June 15, 1995). For this period, the

dumping margin for LG was determined to be de minimis at 0.01%. Dynamic Random

Access Memory Semiconductors of One Megabit or Above From the Republic of Korea;

Final Results of Antidumping Duty Administrative Review, 62 Fed. Reg. 965, 968

(Jan. 7, 1997). The appellee also did not participate in this review.

       Micron Technology, Inc. ("Micron"), a domestic producer of DRAMs, sued in

opposition to the rates determined for LG in POR 1 and POR 2.              The Court of

International Trade and this court sustained the rates determined for LG. See Micron

Tech., Inc. v. United States, 243 F.3d 1301 (Fed. Cir. 2001); Micron Tech., 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 suspension of the POR 1 and POR 2 entries and

directed Customs to liquidate appellee's entries at the cash deposit rate. Appellee's

entries were not given the benefit of the de minimis dumping rate determined for LG in

the administrative review.




04-1469, -1492                           3
       The appellee appealed to the Court of International Trade, which 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 issued its opinion, the Court of International Trade did not

have the benefit of this court's decision in either Consolidated Bearings I or

Consolidated Bearings II.

       The government appeals the decision of the Court of International Trade arguing

that Commerce had a consistent past practice of liquidating unreviewed resellers at the

cash deposit rate. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(5) (2000).

                                             II

       A decision of the Court of International Trade reviewing an antidumping decision

by Commerce is reviewed "anew" by this court by reapplying the same standard of

review applied by the Court of International 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, Commerce's

liquidation instructions should be set aside only if they are "arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance with law." See 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 issued

from this court on June 21, 2005. In the present case, the Court of International Trade

found that the liquidation instructions for appellee's entries were an arbitrary deviation

from past practice because the instructions suffered the same problems as those in




04-1469, -1492                           4
Consolidated Bearings Co. v. United States, 166 F. Supp. 2d 580 (Ct. Int'l Trade 2001).

See Nissei Sangyo, slip op. at 15. We have since reversed Consolidated Bearings,

166 F. Supp. 2d 580, in Consolidated Bearings I, and to the extent that the Court of

International Trade decision in this case relies on its opinion in that case, those

arguments are no longer sound. Because a "reseller" rate determination was never

requested by these importers or their suppliers, Consolidated Bearings I directs that the

appellee does not have a statutory right to liquidation at the manufacturer's review rate.

See 348 F.3d at 1006.

       What remains is whether Commerce deviated arbitrarily from a past consistent

practice when it liquidated appellee's unreviewed entries at the cash deposit rate. This

court has recently addressed this issue and held that Commerce "has consistently

liquidated unreviewed entries from unrelated resellers at the cash deposit rate."

Consolidated Bearings II, slip op. at 11. Consolidated Bearings II directly applies to the

facts of appellee's case. In particular, we note that the evidence relied upon by both

Consolidated 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 Consolidated Bearings II, the

decision of the Court of International Trade is reversed.




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