[Federal Register Volume 60, Number 22 (Thursday, February 2, 1995)]
[Notices]
[Pages 6519-6523]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-2609]



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DEPARTMENT OF COMMERCE
[A-588-604]


Final Affirmative Determination in Scope Inquiry on Antidumping 
Duty Order on Tapered Roller Bearings and Parts Thereof From Japan

AGENCY: Import Administration, International Trade Administration, 
Department of Commerce.

ACTION: Notice of final determination of scope inquiry.

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SUMMARY: We determine that tower forgings, hot forgings, and cold 
forgings are within the scope of the antidumping duty order on tapered 
roller bearings and parts thereof, finished or unfinished, from Japan.

EFFECTIVE DATE: February 2, 1995.

FOR FURTHER INFORMATION CONTACT:
Maureen Shields at (202) 482-1690 or John Kugelman at (202) 482-5253, 
Office of Antidumping Compliance, Import Administration, International 
Trade Administration, U.S. Department of Commerce, 14th Street and 
Constitution Avenue, N.W., Washington, D.C. 20230.

SUPPLEMENTARY INFORMATION:

Background

    On September 17, 1993, Koyo Seiko Company Ltd. and Koyo Corporation 
of U.S.A. (Koyo) requested that the Department of Commerce (the 
Department) issue a ruling that rough forgings, including tower 
forgings, hot forgings, and cold forgings, be found outside the scope 
of the antidumping duty order on tapered roller bearings and parts 
thereof from Japan (52 FR 37352, October 6, 1987). The forgings at 
issue are formed from bearing grade steel bar, which is sheared, 
pierced and, through either a hot or a cold process, extruded into the 
approximate shape of a TRB cup or cone, or, in the case of tower 
forgings, both a cup and a cone or an inner and an outer raceway. The 
forgings are not machined in any way prior to exportation. The 
Department initiated its scope inquiry on September 28, 1993, and 
granted interested parties an opportunity to comment on whether these 
forgings fall within the scope of the order. We received comments from 
the petitioner, the Timken Company, and rebuttal comments from Koyo.
    Due to the significant difficulty presented by this scope inquiry, 
we published a preliminary determination (59 FR 9471, February 28, 
1994) in accordance with the Department's regulations (19 CFR 
353.29(d)(3) (1993)). We preliminarily determined that Koyo's forgings 
constitute unfinished parts that are within the scope of the order. We 
received comments and rebuttal comments on the preliminary 
determination from Timken and from Koyo, and we held a public hearing 
on March 24, 1994. In order to ensure a more thorough understanding of 
the materials and processes used in the production of TRBs, the 
Department accepted invitations to tour the U.S. manufacturing 
facilities of American Koyo Bearing Manufacturing Company (AKBMC) and 
the Timken Company (Timken). We toured AKBMC's plant in Orangeburg, 
South Carolina, on April 21, 1994, and two Timken plants in Canton, 
Ohio, on April 22, 1994.
    In accordance with 19 CFR 353.29(i)(1), in analyzing the scope 
request in this proceeding, the Department considered the descriptions 
of the merchandise contained in the petition, the initial less-than-
fair-value (LTFV) investigation, and the determinations of the 
Department and the International Trade Commission (ITC). The 
regulations provide that if the Department determines that these 
descriptions are not dispositive, it will further consider the factors 
provided for under 19 CFR 353.29(i)(2), known commonly as Diversified 
Products criteria (see Diversified Products Corp. v. United States, 572 
F. Supp. 883 (CIT 1983)).
    Timken contends that the petition and the record of the 
investigation unambiguously include Koyo's forgings in the definition 
of unfinished parts, and that the Department's analysis of the 
Diversified Products criteria in the preliminary determination was 
therefore unnecessary. However, Timken claims that an analysis of these 
criteria further supports its position that Koyo's forgings are within 
the scope of the order.
    Koyo claims that the Department's preliminary affirmative 
determination contradicts previous scope determinations as well as the 
Department's acceptance in prior administrative reviews of Koyo's 
statements that the forgings in question are outside the scope of the 
order. Koyo has stated during administrative reviews that it imports 
forgings but has not reported them, since it considers them outside the 
scope of the order. The Department never challenged these statements.
    In this final determination we find that the forgings at issue are 
``unfinished parts,'' and are thus within the scope of the order. 
Because the descriptions in the petition, the LTFV investigation, and 
the determinations of the Department and the ITC are not dispositive, 
analysis of the Diversified Products criteria is necessary. In 
determining if forgings are within the order, the Department considered 
the factors set forth at 19 CFR 353.29(i)(2): (1) the physical 
characteristics of the product; (2) the expectations of the ultimate 
purchasers; (3) the ultimate use of the product; and (4) the channels 
of trade. These criteria indicate that the forgings in question are 
within the scope of the order because of their size and advanced shape, 
because they travel through the same channels of trade as other 
unfinished parts, and because it is highly unlikely that they will be 
used in anything other than a TRB. We have addressed comments from the 
parties on each of these issues in our analysis below.

Analysis

1. The Language of the Petition

    The original petition describes the subject merchandise as follows:

    The merchandise covered by this petition is all tapered roller 
bearings, tapered rollers and other parts thereof (both finished and 
unfinished) including, but not limited to, single-row, multiple-row 
(e.g., two-, four-), and thrust bearings and self-contained bearing 
packages (generally pre-set, pre-sealed, and pre-greased), but only 
to the extent that such merchandise is not presently covered by an 
outstanding antidumping duty order or finding in the United States. 
Timken notes that the language of the petition is inclusory rather 
than exclusionary, requesting protection for all unfinished parts 
not covered by an existing order.

Timken argues that the behavior of the parties during the LTFV 
investigation reflects a belief that forgings were included in the 
petition. Referring to a statement by one of the respondents that the 
inclusion of ``forgings and other unfinished components'' would cause 
it competitive harm, Timken claims that this argument would be made 
only if the parties believed that forgings were included in the 
petition. While Koyo agrees that the petition is clearly intended to 
include all unfinished parts, it notes that the petition makes no 
attempt to define an unfinished part.

The Department's Position

    While the petition clearly asks for coverage of all unfinished 
parts, it is unclear what articles should be considered unfinished 
parts. Although Timken may have intended the term unfinished parts to 
include the kind of imports Koyo describes as rough 

[[Page 6520]]
forgings, the language in the petition is not sufficiently clear on 
this point to be used as a basis for making a scope determination in 
this case.
2. Language of the Order and Determinations of the Department

    Under this heading we have examined arguments relating to the 
conduct of the Department's LTFV investigation and the scope language 
of the Department's determinations and order. Although not 
determinative of scope, we have also addressed here arguments regarding 
subsequent administrative reviews of the order, which Koyo urges should 
inform our interpretation of the record of the LTFV investigation.
    With respect to the LTFV investigation, Timken argues that Koyo's 
actions during the investigation indicate that forgings were considered 
to be within the scope of the investigation because it reported 
forgings. Specifically, Koyo reported inner rings for two part numbers 
that were cold-forged. Koyo did not argue during the Department's 
investigation that forgings should not be considered unfinished parts, 
but argued more generally that unfinished parts should be outside the 
scope of the order. At the Department's investigation hearing, in 
referring to raw material which it considered out of scope, Koyo 
referred only to steel coil.
    Koyo contends that its inclusion of the two cold-formed models in 
its response to the questionnaire in the LTFV investigation was due to 
its attempts to be over-inclusive in submitting any information the 
Department might need, and that this position is supported by the fact 
that once the scope of the order was defined, Koyo consistently treated 
forgings as outside the scope. Although not clear from the record of 
the investigation, Koyo also noted at the public hearing on this scope 
proceeding that these two cold-formed models had been machined, and 
that its inclusion of these models in its questionnaire response was 
therefore not relevant to the question of whether forgings which had 
not been machined were within the scope of the investigation.
    The products covered by the preliminary and final LTFV 
determinations and the order as it was published in 1987 are

 tapered roller bearings and parts thereof, currently classified 
under Tariff Schedules of the United States (TSUS) item numbers 
680.30 and 680.39; flange, take-up cartridge, and hanger units 
incorporating tapered roller bearings, currently classified under 
TSUS item number 661.10; and tapered roller housings (except pillow 
blocks) incorporating tapered rollers, with or without spindles, 
whether or not for automotive use, and currently classified under 
TSUS item number 692.32 or elsewhere in the TSUS. Products subject 
to the outstanding antidumping duty order covering certain tapered 
roller bearings from Japan (T.D. 76-227, 41 FR 34974) were not 
included within the scope of this investigation.'' (see Antidumping 
Duty Order: Tapered Roller Bearings and Parts Thereof, Finished and 
Unfinished, from Japan, 52 FR 37352, October 6, 1987).

Koyo argues that, because there is no disclaimer indicating otherwise, 
this language includes as parts of TRBs only articles classified under 
the list of specific tariff provisions. At the time of the 
investigation and the order, Koyo classified its forgings under a 
tariff number not listed in the order. Koyo disagrees with the 
Department's statement in the preliminary scope determination that the 
classification categories from the Tariff Schedules of the United 
States (TSUS) listed in the determinations and the order are provided 
for reference only, and are not definitional.1 Koyo points out 
that the Department's determinations contain no disclaimers that would 
indicate that parts imported under other tariff classification numbers 
might also be included; the only such disclaimer in the description of 
the scope appears with respect to tapered roller housings. Koyo argues 
that if the Department had meant to include items imported under 
classifications other than those listed, it would have stated so. In 
Koyo's view, however, because the Department relied specifically on 
TSUS numbers to define the merchandise, Koyo claims that the 
classification numbers listed in the scope description with respect to 
TRB parts are dispositive and exhaustive.

    \1\The Department notes that the TSUS, which was converted to 
the Harmonized Tariff Schedule in 1989, was in effect at the time 
the Department issued the order.
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    Timken counters that the language of the scope sections in the 
determinations and in the order should be analyzed in conjunction with 
the language of the petition, which states that the list of items named 
in the petition is not intended to be exhaustive. Timken also argues 
that the fact that Koyo classified the items in question under a 
provision for forgings and not under any provision mentioned in the 
order is irrelevant, since the classification was selected by Koyo 
rather than by Customs. Timken points out that, despite respondents' 
vigorous arguments during the investigation for the exclusion of 
unfinished parts, including forgings, from the like-product definition, 
the ITC and the Department made no move to exclude these items from the 
scope.
    Koyo also argues that, if the Department had believed that these 
forgings were within the scope of the order, it would have requested 
Koyo to report the forgings in subsequent administrative reviews. 
However, Koyo maintains, although Koyo consistently stated in the 
course of five administrative reviews that it did not report its 
imported forgings because it considered them to be outside the scope, 
neither the Department nor Timken ever questioned this practice or 
asked for further clarification prior to the 1990-92 reviews. Koyo 
suggests that the fact that Timken never asked for information on 
Koyo's forgings casts considerable doubt on Timken's claim that 
forgings have been within the scope since the time the order was 
issued. Koyo contends that it is impossible that the Department could 
have been unclear as to ``what form the imports took'', as the 
Department performed a further-processing verification of Koyo in 1990.
    Timken counters that a verification only involves information 
reported by the respondent; because Koyo submitted no sales information 
regarding forgings, Koyo cannot rely on this verification to support a 
conclusion that the Department was aware of the nature of the imported 
forgings and yet did not seek to include them within the merchandise 
examined in the administrative reviews. Furthermore, Timken argues 
that, because the scope was determined at the time of the LTFV 
investigation, Koyo's decision not to report forgings in subsequent 
reviews cannot change the scope of the order.

The Department's Position

    A respondent's decision during the proceeding to report or not to 
report particular items does not define whether or not those items are 
within the scope. Koyo's reporting of two ``cold-formed models does not 
imply its acceptance that forgings are within the scope; rather, it may 
have been an attempt to comply with the investigation by providing as 
much information as possible on U.S. further manufacturing. By the same 
token, Koyo's subsequent decision not to report its forgings does not 
establish that those forgings were not within the scope. We note that 
another respondent, NTN, does not share Koyo's view that forgings are 
excluded from the order and has reported its imports of forgings in its 
questionnaire responses.
    Moreover, the ``forgings'' to which Koyo refers in subsequent 
administrative reviews and in the current scope inquiry were not 
clearly 

[[Page 6521]]
defined. As indicated above, the only forgings Koyo ever reported were 
the machined forgings it reported during the LTFV investigation. Until 
the matter was brought to the Department's attention in the context of 
the current scope clarification request, we did not directly address 
the specific issue of whether the imports subject to this scope 
proceeding were sufficiently advanced to constitute unfinished parts 
for purposes of this antidumping duty order.
    With respect to the language of the order, the TSUS numbers listed 
in the scope of the order are not controlling. Only the Department has 
the authority to define the scope of the order; importers and Customs 
officials who determine how to classify imports do not determine the 
scope. This is in accordance with standard Department practice that 
Tariff Schedule numbers appearing in the scope of an order are only for 
convenience and Customs purposes, and are not dispositive. Furthermore, 
Timken is correct in pointing out that the TSUS number Koyo used to 
classify its forgings at the time of the order is irrelevant, since the 
forgings may not have been properly classified even at that time.
    In conclusion, neither the language of the investigation nor the 
language of the order provides guidance as to whether forgings are 
included within the scope.

3. The ITC's Determination

    Timken argues that the ITC indicated it considered forgings to be 
included because it found a single like product consisting of TRBs and 
all parts, both finished and unfinished, despite the extensive 
arguments of respondents to find unfinished parts a distinct like 
product: ``we decline to adopt the respondents' proposed like product 
definitions.'' (Tapered Roller Bearings and Parts Thereof, and Certain 
Housings Incorporating Tapered Rollers, from Japan, Inv. No. 731-TA-343 
(Final), USITC Pub 2020, September 1987, p.6). In its report, the ITC 
rejected Koyo's request to consider the following groups as discrete 
like products:
    1. ``Precursor materials'' (i.e., unfinished forged rings) and 
``finished bulk parts'' (i.e., rollers and cages) of tapered roller 
bearings;
    2. Unfinished tapered roller bearing components (i.e., unfinished 
outer rings and inner rings);
    3. Finished tapered roller bearings. (Id., p. 5) Furthermore, 
Timken argues, the ITC defined TRB parts in its questionnaire as those 
``that have been shaped sufficiently so they may only be used in the 
manufacture of tapered roller bearings'', which, Timken submits, 
applies to Koyo's forgings.
    Koyo argues that the ITC's finding of one like product does not 
imply that the ITC considered precursor materials (a term which Koyo 
submits describes, among other things, rings cut from tube steel) to be 
unfinished parts. Koyo also points out that, in its ruling, the ITC 
defined unfinished parts as having been green-machined. Although Timken 
argues that this description concerns a tube-based production process 
and not forgings, Koyo claims that this description of the production 
process supports the conclusion that the like product determination 
does not equate forgings with unfinished parts. Furthermore, Koyo 
disputes the Department's contention that the ITC's description of the 
production process (in which green-machining marks the first stage of 
producing a TRB) applies only to tube steel, stating that both forgings 
and TRB rings manufactured from tubes must undergo the same green-
machining process. Finally, Koyo notes that the U.S. Court of 
International Trade (CIT) has held that the ITC's like-product 
determination has only minimal relevance in a scope review (American 
NTN Bearing Manufacturing Corporation v. United States, 14 CIT 320, 325 
(1990) (NTN)).

The Department's Position

    The Commission did not explicitly address Koyo's and other 
respondents' arguments that forgings and other precursor materials 
should be defined as a distinct like product. However, the ITC's 
finding of a single like product does not specifically exclude forgings 
from the range of products under consideration by the Department and by 
the ITC in its injury determination.
    The staff report contained in the ITC's final determination is also 
ambiguous with respect to the point at which input materials become 
unfinished parts. Although this report describes green-machining as the 
first stage in the TRB production process, this discussion seems to 
deal with the process of producing TRBs from tubes (the predominant 
process used by Timken), rather than the forging process employed by 
Koyo. This is evidenced by the footnote on page A-8 of the ITC's 
determination, which points out that a ``hot roll ring forming'' 
forging process may be used as an alternative to green-machining.
    The Department disagrees with Koyo that the ITC's discussion of the 
TRB production process amounts to a bright line definition of green-
machining as the point of demarcation between inputs and unfinished 
parts regardless of the production process involved. Indeed, much of 
the formation process attributed solely to green machining in the 
fabrication of TRBs from tube, including imparting the characteristic 
taper, is achieved through the forging process when TRBs are 
manufactured using the forgings at issue here.
    The definition of unfinished parts in the ITC's questionnaire 
clearly applies to the forgings at issue here, which are formed close 
enough in shape to the finished parts to be considered dedicated to 
use.
    In summary, although the ITC's determination does not offer a clear 
indication that forgings are within the scope of the order, the 
Commission's injury determination did not specifically exclude 
forgings, and therefore does not foreclose the possibility that 
forgings may be within the scope of the order.

4. Previous Scope Determinations

    In examining the definition of unfinished TRB parts, we also 
considered previous TRB scope determinations. Koyo argues that the 
Department's 1989 ruling that green-machined rings that have not been 
heat treated are within the scope of the order implies that anything 
that has not been green-machined is outside the scope of the order. 
Koyo claims that this applies to forgings as well as to rings 
manufactured from tube steel. Koyo points out that the 1989 ``green 
rings'' scope ruling made no distinction between different production 
processes, although the Department was aware, according to Koyo, of the 
forging production process. Koyo cites several examples of references 
to forgings on the record of the 1989 scope determination. Koyo also 
points out that Timken uses the forging process itself, and therefore 
was very much aware of what forgings are, as well as the fact that Koyo 
imported forgings. Koyo suggests that if it believed the determination 
applied to forgings, Timken would have argued at the time of the 1989 
ruling that more information on Koyo's forgings was necessary. Koyo 
argues that the Department may not now reverse its position that green-
machining represents the first stage in the TRB production process, 
because to do so would be to expand the scope of the order ex post 
facto.
    Koyo further asserts that the Department's 1981 scope ruling in the 
context of the 1976 finding on tapered roller bearings, four inches and 
under in outer diameter, clearly defined unfinished parts of TRBs as 
those that have been rough-machined. Koyo argues that the Department 
must adhere to this 

[[Page 6522]]
precedent. Moreover, Koyo argues, in its petition in the over four-inch 
case, which Timken submitted after the 1981 scope ruling, Timken did 
not disagree with the Department's 1981 definition of unfinished parts.
    Timken counters that the issue of articles that had not yet been 
green-machined was not in question during the green-ring scope 
proceeding, and that the Department made no decision concerning non-
machined parts in that determination.

The Department's Position
    The green-ring scope determination dealt only with articles that 
had already been green-machined, and thus was silent with respect to 
whether articles that had not been machined were within the scope of 
the order. Therefore, this prior determination cannot serve as an 
indication of the Department's position with respect to forgings. We 
note further that for Koyo products, the forging production process 
does give some of the shape that green-machining might otherwise give.
    As for the 1981 ruling in the under-four-inch case, that ruling is 
irrelevant to this proceeding since it involved a separate class or 
kind of merchandise. See NTN, 14 CIT at 328. However, we note that even 
though the Department did refer, in the context of that case, to 
unfinished TRB components as having been rough-machined, that statement 
does not preclude other items, such as forgings, from also being 
included within the definition of unfinished TRB parts.

Diversified Products

    After examining the language of the petition, the Department's 
determinations, the ITC's determination, and the order, the Department 
determines that the language in these documents is not dispositive. 
Because there is no definitive language in any of these documents that 
would allow us to determine conclusively whether these forgings are 
unfinished parts within the scope of the order, we have determined that 
an analysis of the Diversified Products criteria is necessary.
    With respect to the Diversified analysis, the Department has 
determined that it is useful to compare the items in question both to 
articles which are clearly understood to be within the scope as well as 
to articles which are admittedly outside the scope. Examining related 
articles, both in-scope and outside the scope, provides perspective on 
the products under consideration.

Physical Characteristics

    Timken argues that these forgings have undergone significant 
processing and are advanced beyond the stage of raw materials. Timken 
states further that forgings are distinct from rings cut from tube 
steel, as forgings are ``near net shape'' and have already acquired the 
characteristic taper and the approximate dimensions of the finished 
product. According to Timken, these forgings have physical 
characteristics similar to those of unfinished parts. Furthermore, 
Timken contends that Koyo's comparison of forgings to rings cut from 
tube is inappropriate, since the tube from which TRBs are made is 
generally green-machined before the ring is sheared off.
    Koyo argues that green-machining is an extensive process that 
cannot be considered a finishing step performed on an unfinished part, 
and that these forgings, which have not been green-machined, therefore 
do not constitute unfinished parts. The green-machining process is so 
extensive, Koyo argues, that the forging must be considered physically 
distinct from the green-machined rings found to be within the scope in 
the Department's 1989 scope determination. Koyo argues further that 
tower forgings are even more distinct from green rings since each tower 
forging yields two separate parts.
    Koyo points out that the forgings at issue undergo the same number 
of green-machining steps as rings cut from tube steel, and that the 
major difference is the amount of waste. Koyo asserts that in 
considering the extent of physical similarity between forgings and the 
green-machined rings that are clearly within the scope of the order, 
the significant measure is weight loss, rather than the dimensional 
tolerances discussed by Timken, which Koyo also contends are 
inaccurate. Koyo suggests that Timken is contradicting its previous 
statements that green-machining represents the first stage in the 
manufacturing process and that a component is dedicated to use after 
green-machining. Furthermore, Koyo rebuts Timken's contention that Koyo 
cold-forms its hot forgings in order to bring them closer to the final 
form. Koyo states that it never cold-forms rings that have previously 
been hot-formed. Koyo also notes that the ``upset forging process'', 
which Timken submits is a substitute for green-machining, is no longer 
used by Koyo. According to Koyo, all of its forgings must be green-
machined to some extent.
The Department's Position

    We agree with Timken that forgings have undergone significant 
processing and are advanced beyond the stage of raw materials. Although 
all parties agree that these forgings still must be green-machined, the 
amount of green-machining required to produce a finished TRB varies 
according to the input. Cold forgings, for example, may not need to 
have all their surfaces worked and require very little green-machining.
    The Department disagrees with Koyo's contention that green-
machining is the process that defines the boundary between an input and 
an unfinished part. In this case, the physical characteristics of the 
forgings at issue, taken as a whole, are much more compelling. These 
forgings are already very close in shape and size to the in-scope 
green-machined rings, and already have much of the shape that green-
machining imparts to tubing. Although it is true that tower forgings 
must be cut into two parts, the approximate dimensions of the two rings 
which the tower will become are already defined in the forging. Thus, 
these forgings have the physical characteristics of unfinished parts.

Channels of Trade

    Koyo claims that forgings move through a separate channel of trade 
because they are sourced from forgers rather than from bearings 
manufacturers. Koyo submits that forgings move through the same 
channels of trade as other raw materials and precursor materials that 
are admittedly outside the scope.
    Timken argues that independent forgers are merely subcontractors, 
and further adds that Koyo performs its own forging. Timken notes that 
although forgers may sell to manufacturers of either TRBs or 
antifriction bearings (AFBs), the forgings at issue already have the 
profile of either a TRB or an AFB since the tooling and machinery are 
different depending upon the intended end use.

The Department's Position

    Most of Koyo's forgings are purchased from steel forgers or 
produced by Koyo itself. They travel through the same channel of trade 
as unfinished parts of TRBs in that they are destined for bearings 
manufacturers. In this respect, a significant portion of forgings move 
through the same channel of trade as the green rings referred to in the 
1989 decision. Therefore, this criterion indicates that forgings are 
within the scope of the order. 

[[Page 6523]]


Expectations of the Ultimate Purchaser

    Both parties agree that the expectation of the ultimate purchaser 
of the forgings at issue is to produce a TRB or an AFB. Timken submits 
that since the goal of the forging process is to come as close as 
possible to the shape of the finished part and thus to reduce the 
amount of scrap metal, the expectation of the purchaser is the same as 
that of any other unfinished TRB part, which is to produce a finished 
bearing.
    Koyo argues that this criterion is, at best, unhelpful, since the 
expectation of purchasers of articles that are admittedly outside the 
scope is also to incorporate them into TRBs.

The Department's Position

    All parties agree that the expectation of purchasers of the 
forgings in question is to incorporate them into TRBs, or, in some 
cases, AFBs. Although other products, such as raw materials, may be 
imported with the same expectation, this does not negate the argument 
that importers of forgings expect to use them in a limited range of 
model numbers. Forgings are imported into the United States tagged with 
the specific model number or numbers of TRB parts to be manufactured 
from the forging. Therefore, this criterion also indicates that 
forgings are within the scope.

Ultimate Use

    Koyo argues that since some forgings, especially tower forgings, 
are sometimes used for items outside the scope of the order, this 
criterion indicates that forgings are outside the scope. Koyo argues 
that forgings are not dedicated to use in the same manner as green 
rings, which are agreed to be within the scope. Koyo argues that the 
Department may not base a finding that merchandise is within the scope 
on the ultimate-use criterion when there is evidence that the product 
is not dedicated for use solely in merchandise within the scope of the 
order.
    Timken argues that there are no significant alternate uses for 
these forgings other than the manufacture of TRBs. Although it is 
possible to make both an AFB and a TRB from a single tower forging, the 
use of these tapered forgings to produce AFBs or other non-scope 
merchandise is unusual and not cost-effective. Timken suggests that 
Koyo knows how the forgings will ultimately be used at the time they 
are produced, and that Koyo could easily identify which forgings are 
destined for TRBs and which are for AFBs.
    Koyo submits that, regardless of whether the use of these forgings 
for anything other than TRBs is cost-effective, a forging is not 
dedicated to use until it is green-machined. This is particularly true 
of a tower forging, which must be separated into two rings.

The Department's Position

    The forgings in question will almost certainly be made into 
finished cups and cones for TRBs. Although other uses such as 
incorporation into AFBs are possible, they are merely alternatives to 
the main use. We agree with Timken that multiple-use forgings are not 
cost-effective on a commercial scale. We also note that other examiners 
of the product, such as Customs inspectors, recognize that the 
essential dedication of these forgings to use in the production of a 
TRB defines them as TRB parts. For example, in a 1990 ruling on similar 
forgings manufactured by another company, the U.S. Customs Service 
stated:

After importation, the articles will be processed into inner and 
outer rings for bearings by cutting and forming operations . . . 
there is no evidence or claim that the forgings have any other use . 
. . The forgings, which must be cut and machined after importation, 
are blanks which are unfinished inner and outer rings and classified 
as parts of ball or roller bearings in subheading 8482.99.10 or 
8482.99.30, HTSUSA, depending on whether they are blanks for ball 
bearings or for tapered roller bearings. (Customs Classification 
Letter of April 26, 1990, to Robert E. Burke, Esq., of Barnes, 
Richardson & Colburn (HQ 085579).)

Although classifications decisions by Customs are not determinative of 
the scope of an antidumping duty order, they can be indicative; this 
ruling provides perspective on the ultimate-use criterion, and, 
therefore, merits consideration. The ultimate-use criterion dictates 
that forgings fall within the scope.

Effective Date

    Koyo argues that if the Department concludes in its final 
determination that forgings are within the scope, the determination 
must be effective prospectively, as of the date of publication in the 
Federal Register. Timken did not comment on this issue.

Department's Position

    A scope determination is, by law, a clarification of what the scope 
of the order was at the time the order was issued. Therefore, the 
Department will incorporate this decision into all pending reviews of 
this order as well as all future reviews.

Conclusion

    Based primarily on the physical characteristics of the forgings, 
their ultimate use, the expectations of the ultimate purchaser, and the 
channels of trade, the Department determines that Koyo's rough 
forgings, defined above and including hot forgings, cold forgings, and 
tower forgings, are within the scope of the order.

    Dated: January 26, 1995.
Susan G. Esserman,
Assistant Secretary for Import Administration.
[FR Doc. 95-2609 Filed 2-1-95; 8:45 am]
BILLING CODE 3510-DS-P