                                 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


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


     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.
Consol.    Court No. 98-01-00146                                              Page 3


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 zero-

priced    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


      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.
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
