U.S. International Trade Commission

Publication 4082 May 2009

Washington, DC 20436

CERTAIN BALL BEARINGS AND PARTS

THEROF FROM JAPAN AND

THE UNITED KINGDOM

Investigation Nos. 731-TA-394-A and 399-A (Second Review) (Remand)
U.S. International Trade Commission

COMMISSIONERS

Shara L. Aranoff, Chairman

Daniel R. Pearson, Vice Chairman

Deanna Tanner Okun

Charlotte R. Lane

Irving A. Williamson

Dean A. Pinkert

Staff assigned

Address all communications to

Secretary to the Commission

United States International Trade Commission

Washington, DC 20436

Robert A. Rogowsky

Director of Operations

Jim McClure, Investigator

Catherine DeFilippo, Economist

David Goldfine, Attorney

Neal Reynolds, Attorney
U.S. International Trade Commission

Washington, DC 20436

www.usitc.gov

Publication 4082 May 2009

CERTAIN BALL BEARINGS AND PARTS

THEROF FROM JAPAN AND

THE UNITED KINGDOM

Investigation Nos. 731-TA-394-A and 399-A (Second Review) (Remand)
 
CONTENTS

Page

Views of the Commission on Remand . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Part I: Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I-1

Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I-1

Summary of proceeding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I-2

Part II: Information with respect to capacity, production and shipment data provided by

nonsubject producers ...................................................... II-1

Part III: Information with respect to pricing data provided by importers of nonsubject product . . . III-1

Appendix A: Federal Register notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-1

1

 The Commission determinations on appeal were published in Certain Bearings from France, Germany,

Italy, Japan, Singapore, and the United Kingdom, Inv. Nos. 731-TA-344, 391-A, 392-A and C, 393-A, 394-A, 396,

and 399-A (Second Review), USITC Pub. 3876 (Aug. 2006). In these views, we cite to the public version of the

Commission’s original sunset views and staff report as “USITC Pub. 3876.” We cite the confidential version of the

Commission’s original views as “CD.” 

2

 All citations in these remand views are to the confidential version of the Court’s slip opinion in NSK I. 

3

 Chairman Shara L. Aranoff, Vice Chairman Daniel A. Pearson, Commissioner Charlotte R. Lane,

Commissioner Irving A. Williamson, and Commissioner Dean A. Pinkert join the Commission’s views on remand. 

Commissioners Williamson and Pinkert were not members of the Commission at the time that the Commission

issued its determinations in these sunset reviews in 2006 and therefore did not participate in those determinations. 

Accordingly, for purposes of these remand views, they have reviewed the record of that proceeding and make an

affirmative determination for Japan and the United Kingdom now. As discussed below, they adopt the findings

made in the Commission’s original sunset views in this proceeding, as supplemented, revised, and noted below.

4

 Commissioner Deanna Tanner Okun did not participate in these reviews during the original proceeding,

and has not participated in these remand proceedings. 

5

 Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof from the Federal Republic

of Germany et al., Inv. Nos. 303-TA-19 & 20 and 731-TA-391-399 (Final), USITC Pub. 2185 (May 1989).

6

 Certain Bearings from China et al., Inv. Nos. AA1921-143, 731-TA-341, 343-345, 391-397 & -399

(Review), USITC Pub. 3309 (June 2000). 

7

 70 Fed. Reg. 31531 (June 1, 2005). 

VIEWS OF THE COMMISSION ON REMAND

By decision and order dated September 9, 2008, the U.S. Court of International Trade affirmed in

part, and remanded in part, the Commission’s affirmative sunset determinations that revocation of the

antidumping duty orders on ball bearings (“BBs”) from Japan and the United Kingdom would likely lead

to the continuation or recurrence of material injury to an industry in the United States within a reasonably

foreseeable time.1

 NSK Corp. v. United States, 32 CIT ___, 577 F. Supp. 2d 1322 (CIT 2008), Slip Op.

08-95 (Sept. 9, 2008) (hereinafter “NSK I”).2

 Upon consideration of the Court’s remand order, we again

determine that, under section 751(c) of the Tariff Act of 1930, as amended (“the Act”), revocation of the

antidumping duty orders covering BBs from Japan and the United Kingdom would be likely to lead to

continuation or recurrence of material injury to an industry in the United States within a reasonably

foreseeable time.3 4

I. BACKGROUND

A. The Commission’s Original Injury Determinations and Its Sunset Review

Determinations 

This appeal involves the Commission’s second sunset reviews of the antidumping duty orders on

BBs from France, Germany, Italy, Japan, Singapore, and the United Kingdom. The Department of

Commerce issued those orders in May 1989, after the Commission issued affirmative injury

determinations for these countries.5

 In June 2000, the Commission conducted its first sunset reviews of

the orders and issued affirmative determinations for ball bearings from France, Germany, Italy, Japan,

Singapore, and the United Kingdom.6

 

On June 1, 2005, the Commission instituted its second reviews to determine whether revocation

of the antidumping duty orders on ball bearings from France, Germany, Italy, Japan, Singapore, and the

United Kingdom would likely lead to the continuation or recurrence of material injury.7

 The
8

 71 Fed. Reg. 51850 (Aug. 31, 2006). 

9

 USITC Pub. 3876 at 36-37.

10 Id. Commissioner Pinkert adopts the finding by then-Chairman Pearson and Commissioner Koplan in the

second-five year review determinations that the subject imports from Singapore would not likely have a discernible

adverse impact on the domestic industry upon revocation. CD at 44-46. Because of that finding, he does not reach

the issue of whether he should exercise his discretion not to cumulate the subject imports from Singapore with those

from other subject countries based on other considerations. Commissioner Williamson adopts the decision of

Chairman Aranoff and Commissioner Hillman not to exercise their discretion to cumulate the subject imports of ball

bearings from Singapore based on the differences in conditions of competition between these imports and the other

subject imports and the domestic like product. CD at 52-54. 

11 The Court’s decision has been published in the Federal Supplement at 577 F. Supp. 2d 1322 (Ct. Int’l

Trade 2008). All cites in these remand determinations are to the confidential version of the Court’s opinion. 

12 444 F.3d 1369 (Fed. Cir. 2006)

2

Commission issued its final determinations in its second sunset reviews on August 31, 2006.8

 By

unanimous vote, the Commission determined that it was appropriate to cumulate the subject imports from

France, Germany, Italy, Japan, and the United Kingdom and that revocation of the antidumping duty

orders on ball bearings from the cumulated countries would likely result in continuation or recurrence of

material injury within a reasonably foreseeable time.9

 The Commission also determined, however, that

revocation of the order on ball bearings from Singapore would not likely result in continuation or

recurrence of material injury to an industry in the United States within a reasonably foreseeable time.10 

B. The Court of International Trade’s Remand Order

In September 2006, the Japanese and U.K. respondents appealed the Commission’s affirmative

determinations for ball bearings from Japan and the United Kingdom to the Court of International Trade. 

On September 9, 2008, the Court (per Judge Barzilay) issued its decision in NSK I. In that decision, the

Court affirmed the Commission’s sunset determinations for Japan and the United Kingdom in part, and

remanded them in part. Among other things, the Court affirmed the Commission’s findings that there was

a reasonable level of likely overlap of competition between the subject imports and the domestic industry,

that the United States remained an attractive market for subject imports, that the volumes of the subject

imports were likely to be significant upon revocation of the orders, and that the subject imports would

likely have significant adverse price effects upon revocation. NSK I at 17-18, 23-38.11 

However, the Court remanded the Commission’s affirmative determination with instructions to

address three issues. First, the Court concluded that, under the Federal Circuit’s decision in Bratsk

Aluminium Smelter v. United States (“Bratsk”),

12 the Commission must perform a Bratsk-style

replacement analysis in sunset reviews whenever the Bratsk triggering factors are met. Id. at 7-14. Since

the Court found that the Bratsk triggering factors were satisfied here, the Court instructed the Commission

to analyze “whether non-subject imports have captured or are likely to capture market share previously

held by the subject imports, and whether this level of displacement makes it unlikely that removal of the

orders will lead to a continuation or recurrence of material injury as a result of subject imports.” Id. at 11.

The Court also instructed the Commission to reconsider its vulnerability and impact findings in

light of the domestic industry’s “restructuring” activities during the POR. Id. at 22. The Court directed

the Commission to perform “a more thorough examination” of this issue, “given the amount of

information that suggests global restructuring had the effect of depressing certain economic measures of

industry performance relied upon {by the Commission} to cast the U.S. market as vulnerable.” Id. 

Third, the Court instructed the Commission to reconsider its discernible adverse impact analysis for the
13 The Commission published its notice of initiation for the remand proceeding in the Federal Register at 73

Fed. Reg. 63217 (Oct. 20, 2008).

14 73 Fed. Reg. 63217. The Commission’s staff relied on customs net import files to determine the largest

importers and foreign producers of non-subject importers in 2004 and 2005. Based on these files, the Commission

sent importer questionnaires to the 58 largest importers of non-subject imports. These importers represented

approximately 75 percent of imports from non-subject suppliers during these years. Relying on the same data, the

Commission also sent foreign producer questionnaires to the 76 suppliers of non-subject imports in countries that

were the largest suppliers of imported ball bearings to the United States in these years. The Commission sent

questionnaires to all of the producers in these countries, except for China, where the Commission sent questionnaires

to the 21 largest suppliers.

15 Commission Remand Staff Report (“RSR”) at I-2 & II-1.

16 73 Fed. Reg. 63217.

17 Mittal, 542 F.3d at 875-877. 

18 Mittal, 542 F.3d at 876.

19 Mittal, 542 F.3d at 876.

20 Mittal, 542 F.3d at 875.

3

United Kingdom in light of the “significant rise in non-subject imports and large-scale restructuring

within the ball bearing industry.” Id. at 20. 

Accordingly, on October 8, 2008, the Commission instituted its remand proceedings for the

sunset reviews for ball bearings from Japan and the United Kingdom.13 The Commission reopened the

record to obtain certain foreign production, capacity, and shipment information for non-subject imports in

order to address the Court’s Bratsk instructions on remand.14 In reopening the record, the Commission

sent questionnaires to 76 foreign producers and 58 importers of non-subject ball bearings.15 The

Commission did not reopen the record on any other issue. The Commission also permitted parties to

comment on the Court’s remand instructions and on the new information obtained on remand.16

C. The Court of International Trade’s Denial of the Commission’s Motion for

Reconsideration

Nine days after the Court issued NSK I, the Federal Circuit issued its decision in Mittal Steel

Point Lisas v. United States, 542 F.3d 867 (Fed. Cir. 2008) (“Mittal”). In Mittal, the Federal Circuit

clarified the scope of its holding in Bratsk. Among other things, the Federal Circuit made clear that

Bratsk is intended only to apply on a retrospective, rather than prospective, basis in injury

investigations.17 The Federal Circuit explained that the Bratsk analysis was “not concerned with whether

an antidumping duty order would actually lead to the elimination of those goods from the market in the

future or whether those goods would be replaced by goods from other sources.”18 Instead, the Federal

Circuit stated, the “focus of the inquiry is on the cause of injury in the past, not the prospect of

effectiveness in the future.”19 Further, the Federal Circuit added, an assessment of whether a particular

product was a “commodity” for purposes of the Bratsk analysis was a matter committed to the

Commission’s sole discretion.20

In light of Mittal, the Commission filed a motion for reconsideration with the Court of

International Trade on October 9, 2008. In the motion, the Commission asked the Court to reconsider its

instruction that the Commission perform a Bratsk-style replacement/benefit analysis in these sunset

reviews on remand. The Commission argued that Mittal established that the Commission was not

required to assess in a sunset review whether non-subject imports had replaced, or were likely to replace,
21 The Commission published a notice of its decision to stay the remand process in the Federal Register at

73 Fed. Reg. 72836 (Dec. 1, 2008). 

22 All citations in these remand views to NSK II are to the Court’s slip opinion. 

23 NSK II at 21-27. 

24 NSK I at 17-21. 

25 NSK I at 19. 

26 74 Fed. Reg. 6173 (Feb. 5, 2009).

27 74 Fed. Reg. 6174.

28 See generally RSR at I-1 et seq.

4

the subject imports after imposition of the orders, as the Court held in NSK I. The Commission also

argued the Court should not have made findings on the Bratsk triggering factors, but should have

remanded these issues to the Commission for its consideration. Finally, the Commission asked the Court

to stay its remand order until it disposed of the Commission’s reconsideration request. DefendantIntervenor The Timken Company (“Timken”) filed a similar motion for reconsideration and a motion for

a stay of the remand proceedings. 

On October 29, 2008, the Court granted the Commission’s and Timken’s motions to stay the

remand proceeding. As a result, on November 17, 2008, the Commission stayed its remand proceedings

until the Court ruled on the Commission’s motion for reconsideration.21 

On December 29, 2008, the Court denied the Commission’s and Timken’s respective motions for

reconsideration. NSK Corp. et al. v. United States, Slip Op. 08-145 (Dec. 29, 2008) (“NSK II”).22 The

Court concluded that Mittal did not indicate that a Bratsk analysis was not applicable in the sunset

context, as the Commission argued.23 Moreover, the Court added, it had not made factual findings on the

Bratsk triggering factors.24 According to the Court, rather than issuing factual findings on these factors, it

simply “relied on the {Commission’s} record . . . for its legal conclusions” on these issues.25 

After the Court denied the Commission’s and Timken’s respective motions for reconsideration, 

the Commission resumed its remand proceeding on February 5, 2009.26 In a published notice, the

Commission provided parties with an opportunity to file comments on the Court’s remand instructions

and the evidence obtained on remand, and directed that they be filed by March 23, 2009.27 The

Commission also prepared a supplemental staff report regarding non-subject producer questionnaire

information gathered in the remand proceeding.28 On March 23, 2009, comments on the remand were

filed by petitioner The Timken Company, and the Japanese and United Kingdom respondents JTEKT

Corp., Koyo Corp. of U.S.A., NSK Corporation, NSK Ltd., and NSK Europe Ltd.

Accordingly, we address the Court’s remand instructions below.

III. COMMENTS ON THE COURT’S INTERPRETATION OF BRATSK IN NSK I

As instructed by the Court, we have reviewed the record of these sunset reviews in detail, taken

into account the evidence obtained on remand, considered the parties’ remand comments, and evaluated

the Court’s instructions concerning non-subject imports, the industry’s restructuring efforts, and the

impact of these issues on our cumulation analysis for the United Kingdom. We again determine that

revocation of the antidumping duty orders on ball bearings from Japan and the United Kingdom is likely

to lead to continuation or recurrence of material injury within a reasonably foreseeable time, and discuss

our findings in detail below.

Before doing so, however, we comment on the Court’s holding that the Federal Circuit’s decision
29 NSK I at 11. 

30 Bratsk, 444 F.3d at 1375. 

31 Id.

32 NSK I at 7-8, 11-12. 

33 NSK I at 8-9. 

34 NSK I at 9. 

35 NSK I at 11. 

36 NSK I at 10-11. The Court added that “[t]o hold otherwise would permit the ITC to ignore a significant

factor affecting the domestic industry when conducting a sunset review.” Id. at 11.

5

in Bratsk is applicable in a sunset context and that the Commission must therefore assess in a sunset

review “whether non-subject imports have captured or are likely to capture, market share previously held

by the subject imports, and whether this level of displacement makes it unlikely that removal of the orders

will lead to a continuation or recurrence of material injury as a result of subject imports.”29 Because the

Court has ordered us to perform this analysis on remand in this review, we have, of course, done so. 

Nonetheless, we continue to maintain that such an analysis is not required in a sunset review.

A. The Court’s Bratsk Analysis in NSK I

In NSK I, the Court determined that the “basic principles” outlined by the Federal Circuit in

Bratsk are applicable to the Commission’s likely injury analysis in a sunset review. In Bratsk, the Federal

Circuit stated that the Commission must undertake “an additional causation inquiry” in an original

antidumping duty investigation “whenever the antidumping investigation is centered on a commodity

product, and price competitive non-subject imports are a significant factor in the market.”30 When these

two triggering factors are met, the Federal Circuit added, the Commission should assess “whether nonsubject imports would have replaced the subject imports without any beneficial effect on domestic

producers” as part of its injury and causation analysis in an original injury investigation. 31

In NSK I, the Court concluded that the Bratsk replacement/benefit analysis “reaches beyond

injury investigations.” Accordingly, the Court held that Bratsk “requires the ITC to analyze, in the

course of conducting a sunset review, whether non-subject imports have replaced or are likely to replace

subject imports in the domestic market to such an extent that removal of the order would be unlikely to

lead to continuation or recurrence of material injury by reason of subject imports.”32 In coming to this

conclusion, the Court reasoned there was an “implied element of causation under” the sunset provisions

of the statute. It also noted that the Commission assesses similar volume, price and impact factors in

original injury investigations and sunset reviews.33 In the Court’s view, these facts indicated there was a

“significant overlap in the statutory considerations that guide the ITC’s evaluation of material injury in an

investigation and likelihood of material injury in a sunset review.”34 Relying on this level of overlap, the

Court inferred that a Bratsk-style replacement analysis was a necessary part of the Commission’s

causation analysis in a sunset review.35 

Consequently, the Court concluded that the “application of Bratsk to sunset review causation

analysis would compel the ITC to address significant increases in market share by non-subject imports

and thereby examine the effectiveness of the underlying antidumping order in relation to fundamental

changes in the marketplace that might be more likely to cause injury to the domestic industry than

unrestrained subject imports.”36 Accordingly, the Court held that, “whenever [a sunset review] is

centered on a commodity product, and price competitive non-subject imports are a significant factor in the
37 NSK I at 11. In such circumstances, the Court stated, the Commission “would be obligated to explain

why continuation of the order is warranted, given that non-subject imports have replaced or are likely to replace

subject imports as the overriding cause of material injury to the domestic industry.” Id. at 12.

38 NSK I at 12-14. 

39 NSK I at 13. 

40 NSK I at 14. 

41 NSK I at 14. 

42 NSK I at 10-11.

6

market,” the Commission “must consider whether non-subject imports have captured or are likely to

capture market share previously held by the subject imports, and whether this level of displacement

makes it unlikely that removal of the orders will lead to continuation or recurrence of material injury as a

result of subject imports.”37 

In addition to holding that a Bratsk-style analysis is required in sunset reviews if the Bratsk

triggering factors are met, the Court found that the Bratsk triggering factors were satisfied in these

reviews.38 With respect to the first factor, i.e., whether the product under investigation is a commodity

product, the Court found that domestic and subject bearings were generally considered “always” or

“frequently” interchangeable and determined that “the subject ball bearings {were} sufficiently fungible

to satisfy the ‘commodity product’ test under Bratsk.”39 With respect to the second factor, i.e., whether

there was a significant volume of price-competitive non-subject imports in the market, the Court found

that non-subject imports accounted for between *** and *** percent of total imports, by volume, from

2003 to 2005 and determined that “non-subject imports are a significant factor in the domestic industry.”40

 After finding that the triggering factors were met, the Court directed the Commission to conduct a “full

review of the impact of non-subject imports on the domestic industry in conformity with this opinion.”41

B. Comments on the Court’s Conclusion that a Bratsk Replacement Test is

Required in a Sunset Review

1. Causation and Non-Subject Imports Generally

As we indicated above, we do not agree with the Court that Bratsk requires the Commission to

assess whether non-subject imports have captured, or are likely to capture, the market share previously

held by the subject imports and to assess whether this level of displacement means that the subject

imports are not likely to cause material injury to the industry upon revocation of the orders.42 Although

we disagree with the Court on this issue, we do agree that the Commission is required to find causation in

both its material injury and sunset review analyses, and that it must consider the possible injurious effects

of other relevant factors, such as non-subject imports, as an integral part of causation analysis in injury

investigations and sunset reviews.
43 See, e.g., 1-Hydroxyethylidene-1, 1-Diphosphonic acid from China and India, Inv. Nos. 1146-1147

(Final), USITC Pub. No. 4072 at 16 (April 2009). 

44 USITC Pub. 4072 at 16.

45 Statement of Administrative Action Accompanying the Uruguay Round Agreements Act, H.R. Rep. No.

103-316 (1994) (“SAA”) at 851-52 (“{T}he Commission must examine other factors to ensure that it is not

attributing injury from other sources to the subject imports.”); S. Rep. 96-249 at 75 (1979); H.R. Rep. 96-317 at 47

(1979) (“the ITC will take into account evidence presented to it which demonstrates that the harm attributed by the

petitioner to the subsidized or dumped imports is attributable to such other factors,” including such factors as“the

volume and prices of nonsubsidized imports or imports sold at fair value, contraction in demand or changes in

patterns of consumption, trade restrictive practices of and competition between the foreign and domestic producers,

developments in technology and the export performance and productivity of the domestic industry”).

46 The SAA is the “authoritative expression” of the meaning of the Uruguay Round amendments to the

antidumping and countervailing duty laws in all judicial proceedings. 19 U.S.C. §3512(d).

47 SAA at 885; 19 U.S.C. §1675a(2) & (4)(the Commission shall consider “all relevant factors” when

assessing likely volumes and impact of the subject imports”).

48 Mittal, 542 F.3d at 873 (citing U.S. Steel Group v. United States, 96 F.3d 1352, 1362 (Fed. Cir. 1996).

49 Commissioner Pinkert does not join this paragraph or the following two paragraphs. He points out that

the Federal Circuit, in Bratsk, 444 F.3d 1369, and Mittal, held that the Commission is required in original

investigations, under certain circumstances, to undertake a particular type of analysis of non-subject imports. 

50 Mittal, 542 F.3d at 879.

51 Mittal, 542 F.3d at 878-79.

7

As we have consistently stated, in investigations and sunset reviews, there may be economic

factors other than the subject imports that are having, or may be likely to have, adverse effects on the

domestic industry.43 Such economic factors might include, for example, non-subject imports, changes in

technology, demand, or consumer tastes, competition among domestic producers, or management

decisions by domestic producers.44 The legislative history of the statute explains that, in an injury

analysis, the Commission must examine factors other than subject imports to ensure that it is not

attributing injury from other factors to the subject imports, thereby inflating an otherwise tangential cause

of injury into one that satisfies the statutory material injury threshold.45 Moreover, in the Statement of

Administrative Action for the sunset review provisions of the statute,46 Congress has indicated that the

Commission should also consider other factors in its sunset analysis, because they may account for any

injury likely to be suffered by the industry after revocation of an order.47

Nonetheless, as the Federal Circuit has consistently made clear, the Commission has broad

discretion to perform its causation analyses in any reasonable manner and is not required to follow a

single methodology for making these determinations.48 49 Indeed, in Mittal, the Federal Circuit

emphasized that the Commission was not bound to follow any “Procrustean formula,” such as the

“replacement/benefit” analysis discussed in Bratsk, when performing its injury and causation analysis in

an investigation.50 Instead, when assessing causation, the Commission need only have “evidence in the

record ‘to show that the harm occurred ‘by reason of’ the LTFV imports, not by reason of a minimal or

tangential contribution to material harm caused by LTFV goods.’”51
52 E.g., Welded Stainless Steel Pressure Pipe from China, Inv. No. 731-TA-1144, USITC Pub. 4064 at 13

(March 2009) (Final); Small Diameter Graphite Electrodes from China, Inv. No. 731-TA-1133, USITC Pub. 4062 at

13, n. 67 (Feb. 2009) (Final).

53 E.g., Welded Stainless Steel Pressure Pipe, USITC Pub. 4064 at 13; Small Diameter Graphite Electrodes,

USITC Pub. 4062 at 13, n. 67.

54 Commissioner Pinkert does not join this paragraph. He points out that the Federal Circuit, in Bratsk, 444

F.3d 1369, and Mittal, held that the Commission is required, in certain circumstances, to undertake a particular kind

of analysis of non-subject imports. See his discussion of this issue in Welded Stainless Steel Pressure Pipe, USITC

Pub. 4064, at 13, n.74 & Small Diameter Graphite Electrodes, USITC Pub. 4062 at 13, n.68.

55 Commissioner Lane also refers to her dissenting views in Polyethylene Terephthalate Film, Sheet, and

Strip from Brazil, China, Thailand, and the United Arab Emirates, Invs. Nos. 731-TA-1131 to 1134 (Final), USITC

Pub. 4040 (Oct. 2008), for further discussion of Mittal Steel. 

56 E.g., Welded Stainless Steel Pressure Pipe, USITC Pub. 4064 at 13; Small Diameter Graphite Electrodes,

USITC Pub. 4062 at 13, n. 67.

57 NSK I at 11; see also Nucor, Slip Op. at 08-191 at p. 124. 

58 Inv. Nos. 1146-1147 (Final), USITC Pub. No. 4072 (April 2009). 

59 To that end, after the Federal Circuit issued its decision in Bratsk, the Commission began to send out

information requests in final phase investigations to producers in non-subject countries that accounted for substantial

shares of U.S. imports of subject merchandise (if, in fact, there were large non-subject import suppliers). In order to

provide a more complete record for the Commission’s causation analysis, these requests typically seek information

on capacity, production, and shipments of the product under investigation in the major source countries that export to

the United States. The Commission plans to continue utilizing published or requested information in final phase

investigations in which there are substantial levels of non-subject imports.

60 USITC Pub. No. 4072, at 29-31 (April 2009).

8

As a result, in injury determinations since Mittal, the Commission has not applied the

replacement/benefit test that it originally concluded was required by Bratsk.

52 Instead, we have

performed an assessment of other relevant factors designed to ensure the Commission does not attribute

injury from non-subject imports or other factors to the subject imports.53 54 55 Thus, when an

investigation involves commodity products and price-competitive non-subject imports are a significant

factor in the U.S. market, we will give full consideration to significant causation issues, including nonattribution issues respect to other factors (such as non-subject imports), and will provide a reasoned

explanation of our findings on these issues.56 In other words, we do not, and will not, “ignore significant

factor{s} affecting the industry,” such as non-subject imports, in our injury or sunset analysis, which was

the Court’s primary concern in NSK I.

57 

The Commission seeks to obtain the necessary information and performs a reasoned analysis of

these issues in our original injury investigations. For example, prior to reaching our affirmative threat

determination in the recent investigation involving 1-hydroxyethylidene-1, 1-diphosphonic acid

(“HEDP”) from China and India,58 we collected information from major producers and importers of nonsubject imports of HEDP relating to their capacity, production, export and home market shipments, and

the prices of non-subject imports.59 After obtaining these data, we examined the available information

concerning the relative volume and price trends for domestic, subject and non-subject HEDP; the levels of

substitutability among the domestic, subject and non-subject HEDP; demand trends in the market; the

capacity, production, and shipments levels of non-subject producers of HEDP, and the export-orientation

of non-subject producers.60 By performing a reasoned analysis of the record data on these and other 

issues, we were able to support our finding that subject imports were a significant cause of the material
61 USITC Pub. No. 4072, at 29-31 (April 2009).

62 See, e.g., Silicon Metal from Russia, 731-TA-991, USITC Pub. 4018 at 11-13 (Review) (June 2008)

(discussing the role of non-subject imports in the U.S. market in the Commission’s analysis of likely significant

volume and price effects); Sorbitol from France, Inv. No. 731-TA-44, USITC Pub. 3706 at 23-24 (July 2004)

(Review) (“[b]ecause the domestic market is dominated by U.S. and non-subject suppliers . . . revocation of the

antidumping order is not likely to lead to [a] significant increase in the volume of subject imports.”).

63 SAA at 883. 

64 As the SAA points out, unlike the injury portions of the statute, which instructs the Commission to

determine “whether there is current material injury by reason of imports of subject merchandise” or whether such

“injury is imminent, given the status quo,” in a sunset review, the Commission must “engage in a counter factual

analysis,” in which it assesses “the likely impact in the reasonably foreseeable future of an important change in the

status quo – the revocation or termination of a proceeding and the elimination of its restraining effects on volumes

and prices of imports.” SAA at 883.

65 CD at 71, n.382.

66 NSK I at 12, n. 11.

67 444 F.3d at 1373-1374. 

9

injury that the industry was likely to suffer in the imminent future, even though we did not perform the

replacement/benefit analysis that we originally believed was required in Bratsk.

61 

Similarly, in sunset reviews, we have always considered non-subject imports and their current

and possible future effects on the industry as one aspect of our analysis.62 Such an analysis in a sunset

review is different than the analysis we perform in an injury investigation, because the statutory standards

in a sunset review are “not the same as the standards for material injury and threat of material injury.”63

In a sunset review, unlike an original injury investigation, the Commission is required to project likely

future events upon revocation of an order, including the likely volume, price and impact of subject

imports, rather than assessing whether the subject imports caused material injury to the industry in the

past or whether material injury is threatened imminently, given the status quo in the market.64

Nonetheless, even in sunset reviews, we typically examine the current volume and price levels of

the non-subject imports, as well as other pertinent data, as a means of assessing whether non-subject

imports are so significant that the subject imports are not likely to contribute significantly to any injury

likely to be suffered by the domestic industry upon revocation. In fact, we performed such an assessment

of the non-subject imports from China in our determinations for these sunset reviews.65 We recognize

that the Court found our analysis of the potential effects of the non-subject imports from China to be

insufficient to ensure that we were not attributing the likely effects of these imports to the subject imports

upon revocation.66 However, we could have done a more detailed analysis of this issue on remand, had

the Court afforded us the opportunity to do so.

 

2. A Bratsk Replacement Analysis is Not Required or Meaningful in the

Sunset Context

 

We disagree with the Court that the Commission is required by Bratsk to perform the “market

share replacement” analysis prescribed in NSK I. As an initial matter, we note that Bratsk is not, by its

terms, specifically applicable to a likely injury analysis in a sunset review. The Bratsk appeal involved

the Commission’s determination in an original injury investigation, not a sunset review.67 Moreover,

Bratsk did not discuss the sunset review provisions of the statute, or address the injury and causation

analysis required in sunset reviews. In fact, the Federal Circuit specifically stated that a Bratsk analysis
68 Bratsk, 444 F.3d at 1375. 

69 In Nucor Corp. v. United States, Consol. Ct. No. 07-00071, Slip Op. 08-141, at pp. 115-125 (Ct. Int’l

Trade) (Dec. 23, 2008) (“Nucor”), Judge Carman specifically held that a Bratsk replacement analysis was not

required in the sunset context, and relied, in part, on the fact that Bratsk linked the replacement analysis directly to

the statutory provisions concerning a present injury analysis. Id. at 119. Judge Carman noted that the Bratsk “ruling

was issued in a case reviewing the ITC’s final phase investigation in an antidumping case,” and that the “ruling does

not speak to the applicability of the analysis to any other type of Commission decision, such as . . . five year

review{s}. . .” Id. Moreover, he added that, in Mittal, the Federal Circuit explicitly “link[ed] the Bratsk analysis

with the final phase investigation statute, supporting a strong inference that the final phase investigation is the only

context in which the Bratsk/Mittal Steel analysis should be applied.” Id. at 120.

70 Mittal, 542 F.3d at 874-77. 

71 Mittal, 542 F.3d at 876 (emphasis added). 

72 Mittal, 542 F.3d at 876 (emphasis added).

10

was only triggered “whenever the antidumping investigation is centered on a commodity product, and

price competitive non-subject imports are a significant factor in the market.”68 Given this, there is

nothing in Bratsk itself that suggests that a “replacement” analysis is necessary or appropriate in a sunset

review.69

Further, in Mittal, the Federal Circuit has made clear that the Bratsk analysis was limited in

nature and was not intended to require a prospective replacement analysis in sunset reviews.70 In Mittal,

the Federal Circuit explained that Bratsk was not “addressed to the potential effectiveness of any possible

remedial order” but was only “directed to determining the cause of the injury already suffered by the

domestic industry.”71 The Federal Circuit further emphasized the following: 

Bratsk . . . directs that in cases involving commodity products in which non-LTFV imported

goods are present in the market, the Commission must ... consider{} . . . whether the domestic

industry would have been better off if the dumped [imports] had been absent from the market.

That inquiry is not concerned with whether an antidumping order would actually lead to the

elimination of those goods from the market in the future or whether those goods would be

replaced by goods from . . . other sources. Rather, the inquiry is a hypothetical one that sheds

light on whether the injury to the domestic industry can reasonably be attributed to the subject

imports. The focus on the inquiry is on the cause of injury in the past, not the prospect of

effectiveness in the future.”72

Mittal therefore establishes that the Bratsk inquiry is focused solely on the issue of whether the subject

imports have caused injury to the industry in the past, and that Bratsk does not require the Commission to

assess whether an order will be effective in the future. More to the point, the decision also establishes

that Bratsk does not require the Commission to assess whether non-subject imports are likely to replace

subject imports after an order is in place. Yet, that is exactly what the Court has asked the Commission to

do here. 
73 Consol. Ct. No. 07-00071, Slip Op. 08-141, at pp. 115-125 (Ct. Int’l Trade) (Dec. 23, 2008) (“Nucor”)

74 Nucor, Slip Op. 08-141 at 119-125. 

75 Nucor, Slip Op. 08-141 at 123 (citing Mittal, 542 F.3d at 876.) 

76 Nucor, Slip Op. 08-141 at 121. In coming to this conclusion, Judge Carman specifically cited the NSK I

Court’s holding to the contrary and concluded that Mittal had indicated that the Court’s analysis was overbroad. 

Nucor, Slip Op. 08-141 at 120-121, n. 47. We would also add that, in Diamond Sawblades Manufacturers Coalition

v. United States, Ct. No. 06-00247, Slip Op. 09-05 (Jan. 13, 2009), Judge Musgrave of the Court of International

Trade rejected the argument that, under Bratsk, the Commission must perform a prospective replacement analysis

before making an affirmative threat determination. Diamond Sawblades Manufacturers Coalition, Slip Op. 09-05 at

24. Judge Musgrave also held that this type of prospective analysis had been rejected by the Federal Circuit in

Mittal. Id. 

77 542 F.3d at 879.

78 542 F.3d at 879.

79 E.g., Welded Stainless Steel Pressure Pipe, USITC Pub. No. 4064 at 14; Small Diameter Graphite

Electrodes, USITC Pub. No. 4062 at 13, n. 67.

11

In fact, in Nucor Corp. v. United States,73 which was issued after NSK I and Mittal, Judge

Carman held that a Bratsk-style replacement analysis was not required in a sunset review.74 In Nucor,

Judge Carman explained that Mittal “unambiguously held that in a Bratsk analysis, ‘{t}he focus of the

inquiry is on the cause of injury in the past,’”75 and that Bratsk “requires a strictly retrospective

assessment of what has happened during the period of investigation, prior to the imposition of an

antidumping order.” As a result, he noted that “any language within the text of Bratsk arguably implying

that it should have been extended to sunset reviews now seems foreclosed in light of the holding and

reasoning of Mittal.”76 

Indeed, in Mittal, the Federal Circuit explained that the Commission need not perform the “rigid”

Bratsk replacement/benefit analysis even in the injury context. The Federal Circuit also confirmed that

the Commission has broad discretion to perform its causation analysis in any reasonable manner and is

not bound to follow any “Procrustean formula,” such as the “replacement/benefit” analysis apparently

specified in Bratsk, when assessing causation in an injury investigation.77 Accordingly, Mittal states that

the Federal Circuit does not require the Commission to apply an additional test nor any one specific

methodology.78 Instead, Mittal instructs that the Commission must have “evidence in the record ‘to show

that the harm occurred ‘by reason of’ the LTFV imports, not by reason of a minimal or tangential

contribution to material harm caused by LTFV goods,’” and that the Commission should not attribute

injury from non-subject imports or other factors to subject imports.79 As a result, we do not consider 
80 In this regard, we agree with Judge Carman that we should not “unilaterally disregard data related to

non-subject imports during a sunset review, {when we} find that such imports are a ‘relevant economic factor{}’ to

{our} determination.” Nucor, Slip Op. at 08-141 at p. 124. 

81 Commissioner Pinkert does not join this paragraph. He points out that the Federal Circuit, in Bratsk, 444

F.3d 1369, and Mittal, held that the Commission is required in original investigations, under certain circumstances,

to undertake a particular type of analysis of non-subject imports.

82 Commissioner Lane also refers to her dissenting views in Polyethylene Terephthalate Film, Sheet, and

Strip from Brazil, China, Thailand, and the United Arab Emirates, Invs. Nos. 731-TA-1131 to 1134 (Final), USITC

Pub. No. 4040 (Oct. 2008), for further discussion of Mittal Steel. 

83 In United States Steel Group v. United States, 96 F.3d 1352, 1362 (Fed. Cir. 1996)(emphasis added), the

Federal Circuit held as follows:

This Court has no independent authority to tell the Commission how to do its job. We can only direct the

Commission to follow the dictates of its statutory mandate. So long as the Commission’s analysis does not

violate any statute and is not otherwise arbitrary and capricious, the Commission may perform its duties in

the way it deems most suitable. 

12

that we are required to apply, either in original injury investigations or sunset reviews, the

replacement/benefit test that we previously interpreted Bratsk as requiring in the present injury 

context.80 81 82 

Moreover, we note that the statute does not itself direct the Commission to perform the type of

“replacement” analysis prescribed in NSK I. See generally 19 U.S.C. §§ 1675(c) & 1675a(a). In

particular, the statute directs the Commission to consider in a sunset analysis such factors as (i) the “likely

volume, price effect, and impact of imports of the subject merchandise on the industry” upon revocation,

(ii) the Commission’s “prior injury determinations,” (iii) any “improvement in the state of the industry . . .

related to the order,” (iv) the industry’s “vulnerab{ility} to material injury” if an order is revoked, and (v)

whether importers have absorbed duties after imposition of an order. 19 U.S.C. §§ 1675a(a)(1)(A)-(D). 

The statute also instructs the Commission to assess whether import volumes are likely to be significant

after revocation of the order, taking into account (i) “likely increase{s} in production capacity or existing

unused production capacity in the {subject} countr{ies},” (ii) existing and likely levels of inventories of

the subject merchandise, (iii) third country barriers to trade impacting the subject merchandise, and (iv)

the potential for product-shifting in the production facilities in the subject countries. 19 U.S.C. §§

1675a(a)(2)(A)-(D). 

The statute also provides that the Commission must assess the likely price effects of the subject

imports, by considering whether there is “likely to be significant price underselling” by the subject

imports of the domestic like products and whether the subject imports “are likely to enter the {market} at

prices that would otherwise have a significant depressing or suppressing effect” on domestic prices. 19

U.S.C. §§ 1675a(a)(3)(A)-(B). Finally, under the statute, the Commission must consider “all relevant

economic factors which are likely to have a bearing on the state of the industry,” including such factors as

likely declines in the industry’s “output, sales, market share, profits, productivity, return on investments,

and capacity utilization,” and likely negative effects of the subject imports on the industry’s “cash flow,

inventories, employment, wages, growth, ability to raise capital, investment,” and development and

production efforts. 19 U.S.C. §§ 1675a(a)(4)(A)-(C). As can be seen, the statute specifies in detail the

factors the Commission must analyze when assessing whether revocation of an order is likely to result in

material injury by reason of the subject imports. It does not, however, direct the Commission to consider

the type of “replacement” analysis prescribed by the Court in NSK I. In other words, there is no explicit

statutory basis for the Court’s instruction for the Commission to perform this analysis.83
84 See, e.g., Carbon and Certain Alloy Steel Wire Rod From Brazil, Canada, Indonesia, Mexico, Moldova,

Trinidad and Tobago, and Ukraine, Inv. Nos. 701-TA-417, and 731-TA-953, 954, 957-959, 961, and 962 (Review),

USITC Pub. No. 4014 at 21 n.126 (June 2008); Polyethylene Terephthalate Film, Sheet, and Strip From India and

Taiwan, Inv. Nos. 701-TA-415 and 731-TA-933 and 934 (Review), USITC Pub. No. 3994 at 28-29 n.203 (April

2008).

85 467 U.S. 837, 842-843 (1984); United States v. Eurodif S.A., 129 S. Ct. 878, 886-887 (2009) Under

Chevron, unless a statute contains clear and unambiguous language to the contrary, an agency’s reasonable

interpretation of a statute must be given deference by a Court. Id. Moreover, the agency’s interpretation of an

ambiguous statute need not be the only reasonable interpretation, or even the most reasonable interpretation for it to

be approved by the Court. Allegheny Ludlum Corp. v. United States, 475 F. Supp.2d 1370, 1375 (CIT 2006). 

86 Chevron, 467 U.S. at 842-43; see also Allegheny Ludlum Corp. v. United States, 475 F. Supp.2d 1370,

1375 (CIT 2003). 

87 Chevron, 467 U.S. at 842-43. 

88 Chevron, 467 U.S. at 843.

89 Allegheny Ludlum, 475 F. Supp.2d at 1375. 

90 For a full discussion of the rationale for this interpretation of the present injury provisions of the statute,

see Carbon and Certain Alloy Steel Wire Rod from Trinidad and Tobago, Inv. No. 731-TA-961 (Final) (Remand),

USITC Pub. 3903, at 4-5 & 14-16 Jan. 2007); Silicon Metal from Russia, Inv. No. 731-TA-991, (Final) (Second

Remand), USITC Pub. 3910, at 3-8.

91 Eurodif S.A., 129 S. Ct. at 886 (citing National Cable & Telecommunications Service Association v.

Brand X Internet Services, 545 U.S. 967, 982-983 (2005)). 

92 NSK I at 10-11.

13

Given that the statute does not itself require, explicitly or implicitly, that the Commission perform

a Bratsk-style replacement analysis, the Commission has consistently taken the position it is not required

to apply such an analysis in the sunset context.84 We continue to believe that this is a reasonable

interpretation of the sunset provisions of the statute and is entitled to deference from the Court under 

Chevron U.S.A., Inc. v. Natural Resources Defense Council.

85 

When reviewing an agency’s construction of a statute under Chevron, the Courts must apply a

two-prong analysis, under which it first looks at whether Congress has spoken directly to the issue.86 If

the intent of the statute is clear, then “that is the end of the matter; for the court, as well as the agency,

must give effect to the unambiguously expressed intent of Congress.”87 However, where Congressional

intent is unclear, “the court does not simply impose its own construction on the statute,” but assesses

whether the agency’s interpretation is based on a permissible construction of the statute.88 If the agency’s

interpretation of the statute is reasonable, the Courts must affirm it, even if it is not the only reasonable

interpretation of the statute, or the most reasonable interpretation.89 

 Given the absence of any indication in the statute or legislative history that a replacement/benefit

analysis is required in the injury or the sunset context, we believe that such an analysis is neither

necessary nor meaningful in either context.90 Moreover, it is not dispositive that the Court may have

spoken to the contrary on this issue in NSK I. As the Supreme Court has held, “a court’s choice of one

reasonable reading of an ambiguous statute does not preclude an implementing agency from later

adopting a different reasonable interpretation.”91

Finally, we do not agree that it is appropriate to extend the “basic principles” of Bratsk to the

sunset area simply because similarities exist between the Commission’s analysis in sunset reviews and its

analysis in injury investigations. It is true, as the Court indicates in NSK I,

92 that the statute directs the

Commission to consider some similar elements in its causation analysis in injury investigations and sunset
93 SAA at 883 (emphasis added). 

94 SAA at 883.

95 SAA at 884. We agree with Judge Carman that the difference in the nature of the two analyses renders

the use of a replacement analysis in a sunset “untenable.” As Judge Carman points out, sunset reviews require the

Commission to perform an analysis of how the subject imports will impact the industry in the reasonably foreseeable

future upon revocation of an order, not on whether the subject imports were a cause of injury already suffered by the

industry. Nucor, Slip Op. 08-141 at 122. Accordingly, as Judge Carman stated, “{i}f the Commission was required

to apply such an analysis in a sunset review, it would necessarily have to do so counterfactually, i.e., without any

data on the price, volume, and effect of subject and non-subject imports that would possibly re-enter the market upon

revocation of the antidumping duty order. Attempting to complete a Bratsk analysis under such conditions would be

predicated upon speculation and conjecture. It would therefore be untenable.” Id. 

96 The Court appears to assume that, whenever non-subject imports have fully replaced subject imports

after an order is imposed, it is likely that non-subject imports will constitute the “overriding cause of material injury”

to the industry in the reasonably foreseeable future, even after revocation of the order. NSK I at 10-12. This

assumption is simply not correct. Even if non-subject imports have replaced the subject imports at the same volume

and pricing levels in the market after imposition of an order, revocation of an order can still result in the influx of a

significant volume of low-priced subject imports into the market that can have a significant negative impact on

pricing in the market as well as the industry’s overall condition. It is for this reason that the SAA makes clear that

an order may remain in place even if “other causes, as well as future imports, are likely to contribute to injury.” 

SAA at 885. Moreover, as we have previously pointed out in the present injury context, “{t}he statutory scheme

clearly contemplates that an industry may be facing difficulties from a variety of sources, including non-subject

imports and other factors, but the existence of injury caused by other factors does not compel a negative

determination if the subject imports are themselves making more than a minimal or tangential contribution to

injury.” Silicon Metal from Russia, USITC Pub. 3910 at 7; see also Nippon Steel Corp., 345 F.3d at 1381 (dumped

imports “need not be the sole or principal cause of injury”). 

97 NSK II at 19. 

14

reviews. Nonetheless, in the SAA, the President and Congress made clear that the “likelihood of

continuation or recurrence of material injury standard is not the same as the standards for material injury

and threat of material injury.”93 As the SAA points out, unlike the injury portions of the statute, which

instruct the Commission to determine “whether there is current material injury by reason of imports of

subject merchandise” or whether such “injury is imminent, given the status quo,”94 in a sunset review, the

Commission must “engage in a counter factual analysis,” in which it assesses “the likely impact in the

reasonably foreseeable future of an important change in the status quo – the revocation or termination of

a proceeding and the elimination of its restraining effects on volumes and prices of imports.”95 Given that

the legislative history of the sunset provisions makes clear that the two analyses are not to be considered

the same and do not involve the exact same considerations, the Commission does not believe that the

similarities between the injury and sunset analyses themselves justify an extension of the Bratsk analysis

to the sunset context, as the Court appeared to conclude in NSK I.

96

3. The Court’s Consideration of the Bratsk Triggering Factors

We also maintain that the Court should not have independently made factual and legal

conclusions with respect to the Bratsk triggering factors. We recognize that the Court believes that it did

not make factual and legal findings on these factors, but simply “relied on the [Commission’s] record . . .

for its legal conclusions.”97 Nonetheless, as we pointed out in our reconsideration motion, the

Commission simply did not address the triggering factors – or perform any aspect of the Bratsk analysis –

in its decision, because it has never considered such an analysis to be necessary or meaningful in a sunset
98 CD at 49-51.

99 CD at 58-61, 67.

100 See generally CD. 

101 E.g., Nippon Steel Corp. v. ITC, 345 F.3d 1379, 1381 (Fed. Cir. 2003) (Nippon I). 

102 E.g., Nippon I, 345 F.3d at 1381; Nippon Steel Corporation v. United States, 458 F.3d 1345, 1358-59

(Fed Cir. 2006).

103 Nippon I, 345 F.3d at 1381 (emphasis added).

104 Mittal, 542 F.3d at 875. 

105 Mittal, 542 F.3d at 875. 

15

review. In its determinations, the Commission did, of course, make findings on the fungibility of

domestic and subject ball bearings (in its cumulation analysis),98 and the substitutability of domestic and

subject bearings (for purposes of its causation analysis).99 However, the Commission did not consider

any aspect of the Bratsk analysis in its determinations, such as whether subject and non-subject imports

are interchangeable, whether ball bearings from all sources are reasonably considered “commodities” for

purposes of Bratsk, or whether there are significant volumes of price-competitive non-subject imports in

the market.100 Given the fact that the Commission neither addressed nor reached any conclusions on these

factors, the Court was required to permit the Commission to address them in the first instance.101

As the Federal Circuit and this Court have consistently recognized, it is the Commission – not the

Court of International Trade – that makes factual and legal findings in injury investigations and sunset

reviews.102 As the Federal Circuit emphasized in Nippon I:

Under the statute, only the Commission may find the facts and determine causation and

ultimately material injury – subject, of course, to Court of International Trade review under the

substantial evidence standard. {In the Nippon appeal}, {t}he Court of International Trade, despite

its very fine opinions and analysis, went beyond its statutorily-assigned role to “review.” 

Despite its express dissatisfaction with the fact-finding underlying the Commission’s remand

decision, the Court of International Trade abused its discretion by not returning the case to the

Commission for further consideration. See, e.g., Fla. Power & Light Co. v. Lorion, 470 U.S.

729, 744, 84 L. Ed. 2d 643, 105 S. Ct. 1598 (1985). Thus, to the extent the Court of International

Trade engaged in refinding facts (e.g., by determining witness credibility), or interposing its own

determinations on causation and material injury itself, the Court of International Trade, we hold,

exceeded its authority.103

Thus, by drawing its own conclusions on the Bratsk factors rather than remanding the issue to the

Commission for its consideration, we respectfully maintain that the Court exceeded its review authority

here. 

We would add that the Federal Circuit addressed this very issue in Mittal and resolved it in the

Commission’s favor.104 In that appeal, the Commission pointed out that the Federal Circuit appeared to

make findings on the triggering factors in its prior decision in the appeal, thus preventing the

Commission from addressing the factors itself.105 The Federal Circuit acknowledged that its holdings on

this issue were unclear and that it may have inadvertently appeared to draw such a conclusion in its prior

decision. The Federal Circuit added, however, that making such a finding was not within its authority. 

Noting that “{t}he Commission, and not this Court, is the finder of facts in antidumping
106 Mittal, 542 F.3d at 875. 

107 Mittal, 542 F.3d at 875. 

108 NSK I at 13.

109 E.g., Certain Activated Carbon from China, Inv. No. 731-TA-1103 (Final), USITC Pub. No. 3913 (April

2007); Certain Polyester Staple Fiber from China, Inv. No. 731-TA-1104 (Final), USITC Pub. No. 3922 at 27 (June

2007). For example, in Activated Carbon, the Commission concluded that activated carbon was not a commodity

product for purposes of Bratsk because the non-subject imports were not generally interchangeable with the

domestic and subject imports, even though the domestic and subject merchandise were interchangeable with each

other. Activated Carbon, USITC Pub. No. 3913 at 26-27. In coming to this conclusion, the Commission noted that

domestic and subject activated carbon were coal-based, while the non-subject imports were primarily coconut-based,

which meant they were not significantly interchangeable with each other and were used for different end uses. Id. It

also noted that there was a lack of customer overlap for the two types of activated carbon, thus demonstrating limited

substitutability between the two. Id. 

110 E.g., Certain Activated Carbon from China,USITC Pub. 3913 at 26-27; Certain Polyester Staple Fiber

from China, USITC Pub. 3922 at 27. 

111 NSK I at 13-14. 

112 E.g., Certain Polyester Staple Fiber from China, Inv. No. TA-1104 (Final), USITC Pub. No. 3922 at 27,

n. 176 (June 2007). Moreover, in Mittal, the Federal Circuit agreed with the Commission that it was reasonable to

take such an approach to the commodity issue under Bratsk. Mittal, 542 F.3d at 875.

16

investigations,”106 the Federal Circuit emphasized that it is the Commission’s responsibility --- not the

Court’s -- to make a determination on the “commodity” nature of products under Bratsk. Accordingly,

the Federal Circuit remanded the matter so that the Commission could consider the issue on its own.107 

Simply put, the Court could have, and should have, done the same here. 

Moreover, the Court’s analysis does not reflect an assessment of all of the factors relevant to a

this determination. In its analysis, the Court relied solely on record evidence showing that the domestic

and subject bearings were generally considered to be “always” or “frequently” interchangeable as a basis

for its finding that all bearings are commodity products.108 To assess whether bearings are

“interchangeable regardless of source,” however, it is necessary to examine whether all of the bearings in

the market are reasonably considered interchangeable for one another, including those sold by nonsubject suppliers.

109 We would note that the Commission did not make a specific finding on this issue in

its own views, as it would have if it had been given the opportunity to perform this analysis.110 Since the

Court relied only on the evidence relating to the interchangeability of domestic and subject bearings, its

findings reflect an incomplete analysis of the evidence on the interchangeability of bearings sold by all

sources in the market. 

The Court’s analysis also reflects an incomplete understanding of the evidence examined by the

Commission when it assesses whether a particular product is a commodity. In its analysis of this issue,

the Court relied solely on record evidence concerning purchaser and importer statements about the

interchangeability of domestic and imported bearings.111 As the Commission, however, has consistently

stated:

 {I}t is improper to assume that simply because goods are generally interchangeable for purposes

of the “reasonable overlap of competition” analysis for cumulation, or are interchangeable for

purposes of defining the domestic like product, that they are necessarily “commodities,” for

purposes of assessing causation, which is the function of the Bratsk ‘test.’ (citing BIC Corp. v.

United States, 964 F. Supp. 391, 397, & 399 (Ct. Int’l Trade 1997)).112 
113 Certain Color Television Receivers from China, Inv. No. 731-TA-1034, USITC Pub. 3905 (Final)

(Remand) (Feb. 2007) (finding that color televisions are not highly interchangeable and not considered a commodity

product); see also Certain Polyester Staple Fiber from China, USITC Pub. No. 3922 at 26-27; . 

114 Nippon I, 345 F.3d at 1381.

115 Nippon Steel Corp. v. United States, 458 F.3d at 1352.

17

As a result, in its prior determinations, the Commission has looked at a number of factors when analyzing

whether a product is a commodity under Bratsk. In addition to considering purchaser, importer and

producer comments on interchangeability, for example, the Commission has examined evidence

concerning the types of customers to whom the products are sold, the degree to which the products are

produced from the same raw material inputs, and market perceptions on whether the products are thought

to be “commodity” products.113 Because it did not apply a Bratsk analysis here, however, the

Commission never had the opportunity to determine whether there was pertinent evidence on these issues

and address them in its views.

Of course, it is possible that, in any particular case – including this one – the Commission could

reasonably rely solely on purchaser and importer characterizations of the interchangeability of the

imported and domestic product as a basis for its “commodity” finding under Bratsk. However, that

decision is within the Commission’s discretion as the trier-of-fact in injury proceedings under the

antidumping laws.114 In the end, the Court should have remanded this matter to the Commission, so that

the Commission could have collected, considered and analyzed the relevant record data and issued its

own findings on the matter. Once made, those findings could then properly be reviewed by the Court in

its role as the entity that “vet{s} the {Commission’s} determination,” but does not make it.115 

IV. REVOCATION OF THE ANTIDUMPING DUTY ORDERS ON BALL

BEARINGS FROM JAPAN AND THE UNITED KINGDOM IS LIKELY TO

LEAD TO CONTINUATION OR RECURRENCE OF MATERIAL INJURY

WITHIN A REASONABLY FORESEEABLE TIME

As indicated above, we have again reviewed the record of this proceeding, the evidence obtained

on remand, the Court’s remand instructions, and the comments of the parties relating to the Court’s

instructions. Having taken these steps, we again determine that revocation of the orders on ball bearings

from Japan and the United Kingdom would likely result in the recurrence of material injury to an industry

in the United States within a reasonably foreseeable time. We discuss our reasons for this determination

below.
116 See USITC Pub. No. 3876 at 5-13; CD at 5-13. 

117 See USITC Pub. No. 3876 at 5-13; CD at 5-13. 

118 See USITC Pub. No. 3876 at 5-15; CD at 5-14.

119 See USITC Pub. No. 3876 at 25-37; CD at 34-54.

120 See USITC Pub. No. 3876 at 25-37; CD at 34-54. 

121 In this regard, we have also reviewed and adopted the Commission’s prior determination that the subject

imports from Singapore should not be cumulated with the other subject imports. CD at 44-47 & 52-54. As

indicated previously, Commissioner Pinkert adopts the views on this issue of Commissioner Pearson and Koplan, as

expressed in their original views in these sunset reviews. See CD at 44-47 & 52, n.287. Commissioner Williamson

adopts the views on this issue of Commissioners Aranoff and Hillman, as expressed in their original views in these

sunset reviews. See CD at 52-54. Commissioner Lane reaffirms her prior decision to exercise her discretion to

cumulate the subject imports from Singapore with the other subject imports, but otherwise joins the discussion in the

remainder of these remand views. She notes that the inclusion of the Singapore imports in her analysis does not

significantly affect her analysis in these remand views.

18

A. The Domestic Like Product and the Domestic Industry

We have reviewed the Commission’s prior findings concerning the domestic like product and the

domestic industry in these reviews, and adopt them in their entirety here.116 Accordingly, we again

determine that the domestic like product includes all ball bearings, as defined within the scope of the

order and that the industry consists of all domestic producers of ball bearings.117 In this regard, we note

that neither the Japanese nor the United Kingdom plaintiffs challenged the Commission’s domestic like

product or domestic industry findings on appeal. We also incorporate the Commission’s previous

discussion of the background information for these reviews and the legal standards governing its sunset

review analysis.118 

B. Cumulation

We have reviewed the Commission’s prior findings concerning the cumulation of the subject

imports of ball bearings from Japan and the United Kingdom with the subject imports from France,

Germany, and Italy, and adopt them in their entirety here, except to the extent that we supplement and

revise them below.119 Accordingly, we determine (I) that there is likely to be a reasonable overlap of

competition between the subject imports of ball bearings from France, Germany, Italy, Japan, and the

United Kingdom and the domestic like product, (ii) that the subject imports of ball bearings from France,

Germany, Italy, Japan, and the United Kingdom are not likely to have no discernible impact on the

industry if the orders are revoked; and (iii) that conditions of competition do not warrant a decision not to

exercise our discretion to cumulate these countries in this sunset review.120 As a result, we exercise our

discretion to cumulate the subject imports from France, Germany, Italy, Japan, and the United Kingdom

for purposes of our analysis in these reviews.121 We address below the Court’s remand instructions

concerning our decision to cumulate the subject ball bearings from the United Kingdom with the other

cumulated imports. 
122 NSK I at 17-19.

123 NSK I at 17-18.

124 NSK I at 19.

125 NSK I at 19.

126 NSK I at 19.

127 NSK I at 19.

128 NSK I at 19-20.

129 NSK I at 20.

130 NSK I at 20.

19

1. The Court’s Remand Instructions

In NSK I, the Court affirmed most of the Commission findings underlying its decision to

cumulate the subject ball bearings from the United Kingdom with the subject imports from France,

Germany, Italy, and Japan.122 The Court affirmed the Commission’s finding that the subject imports

from the United Kingdom were likely to have a reasonable competitive overlap with the domestic like

product and the other subject imports, stating the overwhelming majority of purchasers reported that U.K.

subject imports were “always” or “frequently” interchangeable with the domestic like product, and with

subject imports from France, Germany, Italy, and Japan.123 

The Court also affirmed several Commission findings supporting the finding that the subject

imports from the United Kingdom were not likely to have no discernible adverse impact on the industry

upon revocation.124 For example, because the record showed that the “subject imports from the United

Kingdom have remained steady in terms of value throughout the review period,” the Court found that the

Commission “reasonably found that U.K. producers maintain a significant share of the U.S. market.”125

Similarly, because the record showed there was a “large percentage increase in [the UK’s] exports over

the review period” and that the United Kingdom was “the *** exporter of ball bearings during the period,

the Court also affirmed the Commission’s finding that producers in the United Kingdom were “highly

export oriented.”126

The Court found “less convincing,” however, the Commission’s “findings that U.K. producers

have discernible levels of excess production capacity and capacity utilization” that could be directed at

the U.S. market upon revocation.127 In questioning these findings, the Court noted that the United

Kingdom’s production capacity for ball bearings fell from *** million in 2000 to *** million in 2005,

and that U.K. capacity utilization rates increased from *** percent to *** percent during the period.128 

The Court pointed out the U.K. imports represented only one percent of all U.S. imports and maintained

a market share of *** to *** percent during the period, which the Court thought “might {otherwise}

appear insignificant.”129 Nonetheless, the Court acknowledged that, “given the weakened state of the

domestic industry, even the most marginal increase in exports would likely lead to material injury,” and

stated that “the existence of non-negligible excess capacity in relation to non-negligible percentage of

U.S. consumption provides sufficient grounds to cumulate.”130 The Court found that all of these 
131 NSK I at 20. The Court agreed with the Commission that “it seems that any increase in subject imports

would likely have an adverse impact,” given the vulnerability of the industry. Id. In fact, the Court recognized that

the Court of International Trade had “upheld the ITC’s decision to cumulate imports in cases with similar facts.” Id. 

(citing Usinor v. United States, 28 CIT 1107 (2004)). 

132 NSK I at 20.

133 NSK I at 20-21.

134 NSK Comments at 12.

135 NSK Comments at 12. In particular, NSK notes that U.K. production capacity dropped by *** percent

between 2001 and 2005, and that the production levels in the United Kingdom also fell substantially during this

same period. Id. at 12-13. NSK also notes that capacity utilization in the United Kingdom was 99 percent in 2005. 

Id. at 13. 

136 NSK Comments at 12.

137 NSK Comments at 12.

138 NSK Comments at 14.

20

considerations “would likely constitute a discernible level of subject imports,” especially since the

Commission had “characterized the domestic industry as extremely vulnerable.”131 Id.

Nonetheless, the Court found that, since the Commission had “failed to address the significant

rise in non-subject imports and large scale restructuring within the ball bearing industry,” it could not

“determine, without a more complete analysis of the conditions of competition, whether this level of

available capacity would likely have an adverse impact on the domestic industry.” 132 The Court therefore

remanded the Commission’s discernible adverse impact findings for the U.K. imports “for additional

explanation as to whether the potential volumes of U.K. exports discussed above are likely to have an

adverse impact on the domestic industry if the order is removed.”133

2. Parties’ Arguments 

On remand, NSK Corporation, NSK Ltd., and NSK Europe Ltd. (“the NSK companies”) argue

that the Commission should not cumulate the subject imports from the United Kingdom with those from

France, Germany, Italy and Japan.134 According to the NSK companies, the restructuring efforts made by

the U.K. producers during the period of review have resulted in substantial declines in the U.K.’s capacity

and production levels for ball bearings, and resulted in very high capacity utilization rates during the last

years of the period of review.135 Moreover, they claim, the U.K. industry has focused on bearing types

that are of interest to the European market.136 In other words, they assert, “the restructuring of the U.K.

ball bearings industry since the imposition of the order demonstrates that the levels of excess production

capacity and capacity utilization within that industry will not be directed to the United States and thus

will not have an adverse impact on the domestic industry if the order is revoked.”137 As a result, they

contend that the Commission should not cumulate the subject imports from the United Kingdom with the

other subject imports because they are unlikely to have a discernible adverse impact on the domestic

industry.138

For its part, Timken argues that the subject imports from the United Kingdom are likely to have a

discernible adverse impact on the industry, and that a consideration of the increasing role of non-subject

imports in the market and the issue of global restructuring “simply affirms the correctness and

reasonableness of the Commission’s initial findings in these reviews,” i.e., that the subject imports from 
139 Timken Comments at 15. 

140 Cogne Acciai, Slip Op. 05-122 at 9.

141 Wieland-Werke AG v. United States, Slip Op. 07-163 at 16-17 (Nov. 7, 2007) (quoting Cogne Acciai,

2005 Ct. Int’l Trade LEXIS 130 at 13-14, (Slip Op. 05-122 at 9)); see also Usinor, Beautor, Haironville v. United

States, 28 CIT 1107, 342 F. Supp. 2d 1267, 1285 (Ct. Int’l Trade 2004) (explaining that even a small increase in

subject imports after revocation would not likely be absorbed without discernible injury).

142 In quantity terms, the capacity of the U.K. producers fell by *** million bearings from 2000 to 2005,

and the production levels of the U.K. producers fell by *** million bearings from 2000 to 2005. CR/PR at Table

BB-IV-9. 

143 CR/PR at Table BB-IV-9; CR at BB-IV-42, PR at BB-IV-21. As a point of comparison, we note that

the domestic industry’s production quantity was 203.8 million ball bearings in 2005. CR/PR at Tables BB-I-1 & C2.

144 CR/PR at Table BB-I-IV-9; CD at 47-48. 

145 By value, the subject imports from the United Kingdom fell from $*** in 2000 to $*** in 2001 to $***

in 2002. However, they have increased every year since 2002, growing from $*** in 2003 to $*** in 2004 to $***

in 2005. CR/PR at Tables BB-I-1 & C-2.

146 CR/PR at Tables BB-I-1 & C-2; CD at 47. 

21

the United Kingdom should be cumulated with imports of ball bearings from the other subject

countries.139

3. Analysis

We determine that the subject imports of ball bearings from the United Kingdom are likely to

have a discernible adverse impact on the domestic industry if the order is revoked. The Court of

International Trade has consistently pointed out that the discernible adverse impact standard presents a

“relatively low threshold” and “is relatively easy for the [Commission] to satisfy.”140 Moreover, the

Court has stated that the discernible adverse impact standard is satisfied as long as it is “likely that [a

producer] could obtain a discernible amount of [the product in question] from somewhere – such as by

exploiting excess capacity, by shifting from domestic and internal production, or by shifting from other

export markets – and would have some incentive to sell a discernible amount into the U.S. market.”141 

We find that the record evidence in this review more than satisfies this standard, for the following

reasons.

First, the industry in the United Kingdom remains a substantial producer of ball bearings. 

Although the capacity and production levels of the U.K. industry declined considerably during the period

of review,142 the U.K. industry still remained a substantial supplier of ball bearings at the end of the

period. In particular, the U.K. industry had a capacity of *** bearings in 2005 and produced *** bearings

in that year.143 Moreover, the subject producers in the United Kingdom have been highly and increasingly

export-oriented throughout the period of review, with their export shipments rising from a level of ***

percent of total shipments in 2000 to a level of *** percent of total shipments in the final year of the

period.144 Finally, the record shows that, even with the disciplining effects of the order in place, subject

imports of ball bearings from the United Kingdom have maintained a stable and consistent presence in the

U.S. market.145 In particular, the subject imports from the United Kingdom have generally maintained the

same market share level throughout the period of review, ranging between 0.3 and 0.4 percent during the

period.146

Furthermore, although it is true that the U.K. producers reported significant declines in their
147 CR/PR at Table BB-I-IV-9.

148 The total value of total shipments by U.K. subject producers increased from $239.4 million in 2000 to

$*** million in 2001 to $*** in 2002 to $*** in 2003 to $*** in 2004 to $*** in 2005. CR/PR at Table BB-IV-9. 

As we stated in our views, the Commission generally relies on value measures, rather than quantity measures, when

assessing most volume-related data in its bearings investigations and reviews, due to product mix issues. CD at 38,

n.191. In NSK I, the Court confirmed that the Commission can reasonably rely primarily on value-based measures

when assessing the volumes of the subject imports, due to the “wide variety of ball bearings” within the scope of the

review. The Court stated that “case law confirms that the {Commission} may assign more weight to value versus

quantity in administering reviews under the antidumping statutes.” NSK I at 19 (citing American Bearings Mfrs.

Ass’n, 28 CIT 1698, 1705; 350 F. Supp. 2d 1100, 1108 (2004).

149 The total value of total exports by U.K. subject producers increased from $*** million in 2000 to $***

in 2001, dropped to $*** in 2002, and then increased from $*** in 2003 to $*** in 2004 to $*** in 2005. CR/PR at

Table BB-IV-9. 

150 CR/PR at Table BB-IV-11; USITC Pub. 3876 at BB-IV-11.

151 NSK I at 19-20.

152 CR/PR at Table BB-IV-9. 

153 CR/PR at Tables BB-III-1 & BB-IV-9 (U.K. producers’ excess capacity was *** bearings in 2005,

compared to domestic production of *** bearings). We would add that, in NSK I, the Court noted that this excess

capacity would appear to allow the U.K. producers to capture an additional $8 million in U.S. market share, which

“would likely constitute a discernible level of [U.K.] subject imports” given that it exceeded the domestic industry’s

operating income in 2005. NSK I at 20.

22

capacity and production levels, in terms of quantity, during the period of review,147 the U.K. producers

actually increased their total shipments of all ball bearings (in terms of value) during the period of review,

with the total value of their aggregate shipments growing by *** percent during the period of review.148

Similarly, despite the reported capacity declines, the U.K. producers were able to increase the value of

their exports by *** percent during the period of review.149 Finally, the record shows that the United

Kingdom is the *** largest ball bearing exporter in the world.150 In light of the significant size of the

U.K. industry, the continued and stable presence of U.K. ball bearings in the U.S. market and the

consistent increases in the value of their exports to global markets during the period, we find that, if the

order covering ball bearings from the United Kingdom were revoked, the subject producers in the United

Kingdom are likely to ship sufficient volumes of ball bearings to the United States upon revocation that

these volumes will have a discernible adverse impact on the industry in the reasonably foreseeable future.

In coming to this conclusion, we again find that the subject U.K. producers are likely to use

existing and available capacity to direct additional shipments of ball bearings to the United States upon

revocation of the U.K. order. In making this finding, we recognize that the Court questioned the

Commission’s prior findings, given the reported declines in the U.K. industry’s capacity and production

levels and its high capacity utilization rates during the final years of the period.151 However, despite the

reported capacity declines and the recent high capacity utilization rates, the subject producers still

retained the capacity to direct additional exports to the U.S. market upon revocation of the order that

could have a discernible impact on the industry. For example, in 2005, the last year of the period of

review, the U.K. industry reportedly operated at a capacity utilization rate of *** percent.152 Even at this

high rate of utilization, however, the U.K. industry’s available excess capacity in that year was equivalent

to *** percent of U.S. production.153 Further, even when operating at high capacity levels in 2003, 2004,

and 2005, the U.K. producers were still able to increase the total value of their shipments to home and
154 CR/PR at Table BB-IV-9. During this period, the U.K. industry’s total shipments grew, in value, from

$*** in 2003 to $*** in 2005, which were both higher than the value of the industry’s shipments in 2000. Id. The

U.K. industry’s total exports also increased in value between 2003 and 2005, growing from $*** in 2003 to $*** in

2005, which were again both higher than the value of the industry’s shipments in 2000. Id. 

155 USITC Pub. No. 3876 at 34; CD at 48.

156 USITC Pub. No. 3876 at 46-47; CD at 67. 

157 CR/PR at Table BB-II-4; CD at 49. The NSK companies claim that the restructured U.K. industry is

unlikely to enter the U.S. market upon revocation because it is increasingly focused on products of “particular

interest” to the European market. NSK Comments at 13-14. However, NSK notes that, among other things, the

U.K. industry is focused more on custom-produced products for this market, including the automotive market. Id. 

Given that the U.K. producers already have a stable presence in the U.S. market, that the domestic industry sells

significant numbers of bearings to the automotive market, and that the domestic industry itself produces a large

number of custom products, CD at 60-61, n. 335, we do not believe that this distinction makes it likely that the

subject imports from the United Kingdom will not have a discernible adverse impact on the industry upon revocation

of the order. 

In this same vein, we note that substantial proportions of ball bearings are sold as both standard and

customized product in the United States by the domestic industry and the suppliers of subject ball bearings from the

United Kingdom. CD at 50 n.280. As a share of value, standard bearings reportedly constituted 51.3 percent and

custom bearings 48.7 percent of subject imports from the United Kingdom that were sold in the U.S. market in 2005,

while standard bearings constituted 33.1 percent and custom bearings constituted 66.9 percent of domestically

produced ball bearings. CR at BB-I-40, PR at BB-I-34. The data also showed an overlap among end-user categories

for both standard bearings and custom bearings for the UK product and the domestic product, including for custom

bearings sold to aerospace and other OEM users. CR/PR at Table BB-I-10. 

158 USITC Pub. No. 3876 at 44; CD at 64.

159 NSK I at 20. 

23

export markets considerably between 2003 through 2005.154 Thus, even as the U.K. producers were

reportedly reducing their capacity levels in an effort to focus on the production of higher-value, custom

products, the record indicates they nevertheless retained the ability to increase significantly the value of

their shipments of ball bearings to the U.S. market. We find that this indicates that they would likely

have a discernible adverse impact on the industry upon revocation of the order, especially given their

current presence in the market. 

Furthermore, as the Commission indicated in its original determination,155 the prevailing

conditions of competition in the market indicate that the volumes of subject imports from the United

Kingdom are likely to enter the U.S. market in a manner that is likely to have a discernible adverse impact

on domestic pricing. In this regard, the record shows that price is an important factor in the purchase

decision for ball bearings,156 that purchasers reported there is a high degree of substitutability between the

U.K. and domestic ball bearings,157 and that prices for ball bearings tend to be higher in the U.S. market

than other markets.158 In other words, as the Court itself correctly stated, even a relatively small volume

of imports from the United Kingdom after revocation of the order would not likely be absorbed without at

least some discernible impact on the domestic industry.159 Considering that the U.K. industry remains a

large and export-oriented industry, that subject U.K. imports are substitutable for the domestic like

products, and that price is an important factor in the purchase decision, we find that U.K. producers are

likely to take advantage of the revocation of the order to compete more aggressively with both the
160 Moreover, we find that the U.K. subject imports are likely to be priced aggressively in the market if the

U.K. order were revoked, given that the limited available data on pricing reflects that they were already competing

aggressively on price with the domestic ball bearings. Six purchasers reported that U.S. prices were higher than the

prices of the U.K. imports, and one purchaser reported their prices were comparable. CR at BB-V-7, PR at BB-V-5. 

Further, the price comparison data show that the U.K. subject imports undersold the domestic like product in 45 out

of 48 instances over the period of review, that is, even with the order in place. CR/PR at Table BB-V-2. Although

these overselling figures are, as the Court points out, based on a small number of price comparisons, the limited

pricing data are consistent with purchaser responses and constitute a higher coverage percentage than the data for the

United Kingdom in the first sunset review. CR at BB-V-9, n.19; PR at BB-V-7, n.19. 

161 In their remand comments, the NSK companies also argue that the Commission’s decision to cumulate

the UK imports with other subject imports was inconsistent with its decision not to cumulate subject imports from

Singapore in these second five-year reviews. NSK Remand Comments at 14-15. The Commission reasonably

explained why the imports from Singapore should not be cumulated with the other imports, including those from the

United Kingdom. CD at 44-47 (Chairman Pearson and Commissioner Koplan) & 52-54 (Vice Chairman Aranoff and

Commissioner Hillman, joined by Chairman Pearson and Commissioner Koplan). Unlike the subject imports from

the United Kingdom, the subject imports from Singapore declined significantly in terms of value during the period,

and were approximately one-third of the value of subject imports from the United Kingdom at the end of the period. 

CD at 44, 52-53; CR/PR at Table BB-I-1. Moreover, Singapore accounted for the smallest share, by far, of all of the

subject imports from the individual subject countries. In addition, the product mix of subject imports from

Singapore differed substantially from the products produced by the UK and other subject suppliers because they

included a large volume of miniature, non-precision BBs. In fact, the industry in Singapore could not produce BBs

in excess of 30 mm. CD at 44-45, 52-53. These differences justified the Commission’s different treatment of the

subject imports from Singapore and the United Kingdom. 

The NSK companies also argue that the Commission’s decision to cumulate the UK imports with other

subject imports was inconsistent with its decision not to cumulate subject imports from Romania during the first

sunset reviews of the ball bearings orders. Again, this argument is misplaced. First, it is well-established that each

Commission determination is “sui generis, [in that it] involv[es] a unique combination and interaction of many

economic variables; and consequently, a particular circumstance in a prior investigation cannot be regarded as

dispositive of the determination in a later investigation.” Nucor Corp. v. United States, 414 F.3d 1331,1340 (Fed.

Cir. 2005). Second, the factual circumstances relating to the Romanian exports in the first review differ from those

of the U.K. imports here, given that the Romanian imports’ market fell from 0.7 percent of U.S. consumption in the

original period of investigation to just 0.1 percent at the end of the period in the first review; the Romanian industry

was significantly smaller than the U.K. industry was at the end of the period, and the subject imports from Romania

were not certified for sales to major OEM's, among other things. Certain Bearings from China,

France, Germany, Hungary, Italy, Japan, Romania, Singapore, Sweden, and the United Kingdom, Inv. Nos.

AA1921-143, 731-TA-341, 343-345, 391-397 & -399 (Review), USITC Pub. 3309 at 36-38 (June 2000). 

162 NSK I at 20. 

24

domestic and non-subject ball bearings suppliers on price and thereby increase their market share.160 We

find therefore that the subject imports of ball bearings from the United Kingdom will have a discernible

adverse impact on the industry upon revocation.161

We have also considered the Court’s instruction that the Commission reconsider its discernible

adverse impact analysis in light of the “significant rise in non-subject imports and {the} large scale

restructuring within the ball bearing industry, which might have skewed its analysis of the domestic

industry’s level of vulnerability and likely injury from unrestrained imports.”162 As we discuss below,

neither of these factors change our view that the subject imports from the United Kingdom are not likely

to have no discernible adverse impact on the industry upon revocation of the order. 

First, as is discussed in detail below, we again determine that the industry was in a weakened

condition during the period and therefore vulnerable to the likelihood of material injury by reason of the
163 NSK Comments at 10.

164 Neither the Japanese nor United Kingdom respondents have chosen to address this issue specifically in

their remand comments. 

165 CR/PR at Tables BB-I-1 & C-2.

166 Wieland-Werke AG, Slip Op. 07-163 at 16-17 (Nov. 7, 2007) (quoting Cogne Acciai, Slip Op. 05-122

at 9)); see also Usinor, Beautor, Haironville, 342 F.Supp.2d at 1285.

25

cumulated subject imports. We incorporate that analysis in full in this discussion. As can be seen from

that discussion, we do not regard the evidence concerning the industry’s restructuring efforts during the

period of review as indicating that the domestic ball bearings industry was “strong at the end of the

review period and was growing stronger,” as the NSK companies contend.163 Instead, the record evidence

shows that, during the period, the domestic industry suffered serious declines in its production levels,

sales volumes, sales revenues, income, profit margins, market share and employment, and that these

declines cannot be attributed solely, or even primarily, to the industry’s “restructuring” efforts. As a

result, we conclude that the industry’s condition during the period of investigation made it vulnerable to

the likely discernible adverse impact of the subject imports from the United Kingdom upon revocation of

the U.K. order. 

We have also considered the Court’s instruction that we reconsider our discernible adverse

impact finding for the subject U.K. imports in light of the “significant rise in non-subject imports” during

the period.164 Again, we do not find that the increase in the volume of the subject imports affects our

conclusion that the subject imports from the United Kingdom will have a discernible adverse impact on

the industry if the U.K. order is revoked. We discuss the role of non-subject imports in the market in 

detail in our likely impact analysis below, and incorporate that discussion here. Nonetheless, we would

add, the record shows that the increase in the non-subject imports during the period of review has not had

a significant impact on the role that the subject bearings from the United Kingdom have played in the

market during the period, nor is it likely to do so upon revocation of the order.

In this regard, we find that the increase in non-subject imports has not resulted in a significant

displacement of the subject U.K. ball bearings during the period of review. During the period of review,

the U.K. imports have consistently retained a market share of *** percent, despite the existence of the

U.K. order and despite the increase in non-subject imports during the period of review.165 Given that the

non-subject imports have not significantly replaced the subject imports from the United Kingdom or been

able to capture significant market share from the U.K. imports even with the disciplining effects of the

U.K. order in place, we find that they are not likely to have such an effect in the reasonably foreseeable

future once the order is revoked. Moreover, given the size and export-orientation of the subject U.K.

producers and their level of substitutability with the domestic products, we find that, upon revocation of

the order, the subject U.K. imports are likely to begin pricing their products more aggressively in the

market in order to recover any market share that may have been lost immediately after imposition of the

U.K. order. As a result of these efforts, we find that the subject imports of ball bearings from the United

Kingdom are likely to have a discernible effect on the prices, market share, and overall condition of the

industry upon revocation, even with the level of non-subject imports now seen in the market. 

Furthermore, our finding on this issue is not affected by the fact that the non-subject imports

occupy a considerably larger share of the market than the subject imports from the United Kingdom. As

we noted earlier, the discernible adverse impact standard presents a “relatively low threshold” and “is

relatively easy for the [Commission] to satisfy.”166 Given the small level of impact required to establish

that the subject U.K. imports will have a discernible adverse impact on the industry here, the substantial

presence of non-subject imports in the market does not cause us to conclude that the subject imports from

the United Kingdom will have no discernible adverse impact on the industry, especially once they are free
167 Commissioner Lane notes that she also determined to cumulate the subject imports from Singapore in

her analysis. 

168 See CD at 54-61.

169 NSK I at 21-27. 

170 NSK I at 23-25.

171 NSK I at 25 & 27. 

172 NSK I at 19 (citing American Bearings Manufacturers Association, 28 CIT 1698, 1705; 350 F. Supp. 2d

1100, 1108-10 (2004).

26

of the disciplining effects of the U.K. order.

Accordingly, we conclude that the subject imports from the United Kingdom are not likely to

have no discernible adverse impact on the industry upon revocation of the order. Since we have also

concluded that there is a reasonable level of overlap of competition between the subject imports from the

United Kingdom and the subject imports from the other cumulated countries, and we do not find that

other considerations warrant a decision not to cumulate the U.K. imports with the other cumulated

countries, we exercise our discretion to cumulate the subject imports from the United Kingdom with the

subject imports from France, Germany, Italy, and Japan.167

C. Conditions of Competition

We have reviewed the Commission’s prior findings concerning conditions of competition in the

United States market for ball bearings during the period of review, and adopt them in their entirety

here,168 except to the extent that we supplement and revise them in the discussion of the industry’s

restructuring efforts set forth below. As we have noted, in NSK I, the Court instructed the Commission

to reconsider its analysis of the vulnerability of the industry in light of the restructuring of the industry’s

operations during the period of review. Since this issue is directly related to our finding of the industry’s

level of vulnerability, we discuss this issue in our likely impact analysis below.

However, we note that the Court affirmed several other aspects of the Commission’s conditions

of competition findings.169 In particular, the Court affirmed that the Commission reasonably analyzed the

impact of subject imports on the industry as a whole, rather than on certain aspects of the industry’s

operations. In doing so, the Court noted that it is “well-settled that the ITC bears no obligation to

perform a market segmentation analysis.”170 Second, the Court affirmed the Commission’s finding that 

“‘there is a significant degree of substitutability between domestically produced {bearings} and subject

imports.’” In this regard, the Court noted that a “clear majority of respondent purchasers and importers

reported that subject bearings were interchangeable with the domestic like product.”171 Finally, the Court

confirmed that it was appropriate for the Commission to rely primarily on value-based measures when

assessing the volumes of the subject imports, noting that the Commission prefers value-based measures

for this purpose due to the “wide variety of ball bearings” within the scope of the review. The Court

stated that “case law confirms that the {Commission} may assign more weight to value versus quantity in

administering reviews under the antidumping statutes.”172
173 See CD at 61-66.

174 NSK I at 28-33.

175 NSK I at 29-30. 

176 NSK I at 29-30. 

177 NSK I at 30. The Court also emphasized that the Commission “incorporated other conditions within the

industry – such as the modest increase in demand for bearings, export orientation of subject producers, current

volume in the U.S. market, high degree of substitutability, and price incentives to shift exports to the United States –

to support its determinations concerning the likely use [of] excess capacity.” Id. 

178 NSK I at 32-33.

179 NSK I at 33.

180 Id.

181 See CD at 66-68.

182 The Court expressed its concern that the Commission’s underselling analysis was “based on a relatively

small sample of price comparisons” for the subject and domestic merchandise. NSK I at 35.

27

D. The Likely Volume of the Cumulated Subject Imports 

We have also reviewed the Commission’s previous determination that there is likely to be a

significant volume of the cumulated subject imports upon revocation of the orders.173 We adopt and

incorporate in their entirety the Commission’s findings on this issue. In doing so, we note that the Court

has affirmed the Commission’s determination that the volumes of subject imports are likely to be

significant upon revocation.174 In particular, the Court held that the Commission reasonably found that

the subject producers had sufficient excess capacity to increase their exports significantly to the United

States upon revocation.175 The Court noted that the record showed that “the subject countries could

potentially capture an additional *** percent of U.S. consumption by utilizing their excess capacity.”176

“Viewed in this context,” the Court agreed that “the subject producers do indeed possess a significant

level of excess capacity.”177 NSK I at 29-30. Moreover, the Court added that the United States “remains

an attractive market for the subject producers’ ball bearings,” given that the United States is the “second

largest destination for imported ball bearings.”178 Furthermore, the Court found that, “with higher prices

available in the U.S. market as compared to other foreign markets, there is [an] incentive to shift available

capacity to capture U.S. sales.”179 Emphasizing that the subject producers are “among the world’s top

exporters” and “have at their disposal a significant level of excess capacity,” the Court found that the

Commission’s likely volume finding was reasonable.180 Accordingly, we again determine that the volume

of the cumulated subject imports would likely be significant in the reasonably foreseeable future upon

revocation of the orders. 

E. The Likely Price Effects of the Cumulated Subject Imports 

 We have also reviewed the Commission’s prior determination that revocation of the orders on the

cumulated subject imports would be likely to lead to significant underselling by the subject imports and

significant price-suppression or depression within a reasonably foreseeable time.181 We adopt and

incorporate in their entirety the Commission’s findings on this issue. In doing so, we note that, although

the Court questioned certain aspects of the Commission’s underselling analysis,182 the Court ultimately

concluded that the Commission reasonably found that the subject imports were likely to have significant
183 NSK I at 33-38.

184 NSK I at 37.

185 NSK I at 37-38.

186 The Court also found “that there {was} sufficient evidence to support the ITC’s determination that price

is an essential factor in purchase decisions,” noting that price was reported to be the second most important factor

after quality in the purchase decision and the large majority of purchasers reported that price was a “very important”

factor in the purchase decision. NSK I at 34-35. 

187 NSK I at 37-38.

188 NSK I at 38.

189 See CD at 68-71.

190 See CD at 66-68.

191 NSK I at 21-23. 

192 NSK I at 10-11.

28

adverse effects on domestic prices upon revocation of the orders.183 In particular, the Court found that

the Commission reasonably determined that, due to the high degree of substitutability between subject

imports and the domestic like product, the “‘subject imports would likely be priced aggressively to gain

market share, and would undersell the domestic like product by substantial margins so as to significantly

suppress domestic prices.”184 The Court also found that the Commission reasonably determined that

“significant volumes of subject imports are likely to suppress the price increases necessary to compensate

for the domestic industry’s increasing costs.”185 Further, the Court concluded that the Commission

reasonably found “there {was} a strong likelihood that competitive pricing will be a significant factor in

purchasing decisions,”186 given that “demand for ball bearings is not expected to increase dramatically

within the foreseeable future.”187 Given these considerations, the Court held that it was reasonable for

the Commission to determine that “removal of the orders would likely lead to significant underselling and

price suppression within the foreseeable future.”188 Accordingly, we again determine that revocation of

the orders would be likely to lead to significant underselling by the subject imports and significant pricesuppression or depression within a reasonably foreseeable time. 

F. The Likely Impact of the Cumulated Subject Imports on the

Industry

Finally, we have also reviewed the Commission’s prior determination that revocation of the

orders on the cumulated subject imports would likely have a significant adverse impact on the domestic

industry.189 We adopt and incorporate in their entirety the Commission’s findings on this issue, except to

the extent they are supplemented and revised below.190 As we have previously stated, in NSK I, the Court

instructed the Commission to reconsider its vulnerability and likely impact findings in light of the

industry’s “restructuring” efforts during the period of review.191 The Court also instructed the

Commission to perform a Bratsk-style replacement analysis on remand.192 Accordingly, we address the

Court’s instructions in detail below. After considering these issues, we again determine that revocation

of the orders on the cumulated subject imports would likely have a significant adverse impact on the

domestic industry. 
193 NSK I at 21-23. 

194 NSK I at 22.

195 NSK I at 22-23.

196 NSK I at 23.

197 NSK I at 23.

198 NSK I at 23.

199 The Court explained that “[w]hether the domestic industry is vulnerable to increased volumes of subject

imports or simply responding to other market forces is an appropriate inquiry” for the Commission to perform on

remand. Id.

200 NSK Comments at 2.

29

1. Consideration and Analysis of the Industry’s Restructuring

Efforts

a. The Court’s Instructions.

In NSK I, the Court remanded the Commission’s vulnerability and likely impact findings so that

the Commission could re-examine and take into account the impact of the industry’s restructuring efforts

on its condition during the period of review.193 In its analysis, the Court noted that the Commission had

found the industry to be vulnerable to the likely impact of subject imports, based in part on the fact that

there had been a “widespread contraction in various statistical measures of industry performance.”194 

According to the Court, the Commission’s reliance on this data “appears to understate evidence of large

scale restructuring within the ball bearing industry that could explain much of {this} seemingly negative

data.”195 The Court observed that, “[i]n an effort to respond to evolving market conditions and reduce

production costs, several major producers have moved their production facilities for less-technical ball

bearings to non-subject countries, while tailoring their U.S. production facilities to serve specific clients

located in the same geographic area, most of which require highly customized ball bearings.”196

The Court added that, “[a]s a result of this restructuring, it seems logical that domestic

production, capacity, capacity utilization, and net sales would experience sharp declines as major ball

bearing producers moved some of their manufacturing facilities to other countries.”197 After observing

that “structural changes of this magnitude would undoubtedly depress certain indicators of market

performance,” the Court stated that the Commission“did not analyze these issues in its discussion of the

conditions of competition.”198 The Court therefore directed the Commission to perform “a more

thorough examination” of this issue, “given the amount of information that suggests global restructuring

had the effect of depressing certain economic measures of industry performance relied upon to cast the

U.S. market as vulnerable.”199 

b. The Parties’ Arguments.

In their remand comments, the NSK companies have argued that, on remand, the Commission

should find that “the domestic industry, having undergone a self-imposed restructuring during the review

period, grew stronger towards the end of that period.”200 According to the NSK companies, during the

period of review, the domestic industry “widely re-designed its production lines to maximize future
201 NSK Comments at 2.

202 NSK Comments at 2.

203 NSK Comments at 5.

204 In its comments, NSK points in particular to the restructuring efforts of *** during the review period. 

NSK Comments at 5-7. NSK notes that it accounted for *** in the domestic industry’s production capacity but

concedes that declines were related, in part, to *** efforts to *** Id. at 8. NSK also acknowledges that the declines

in *** production capacity are due in part to efforts to *** Id. at 8-9. 

205 NSK Comments at 7.

206 NSK Comments at 7.

207 Timken Comments at 11.

208 Timken Comments at 13.

209 Timken Comments at 13-14.

210 Timken Comments at 12.

211 Timken Comments at 13-14.

30

financial performance.”201 To achieve a “balance between market orientation and cost optimization,”202

they assert that the industry took two steps. First, it reduced its capacity to “better position specialized

ball bearing production capabilities in the U.S. market.” Second, it moved “commodity ball bearing

capabilities overseas to more cost-effective countries so as to remain competitive against BB imports from

non-subject countries.”203 In their comments, the NSK companies acknowledge that the industry’s

capacity, production, capacity utilization, and sales levels all declined seriously over the period.204 They

theorize that these declines represent a “positive trend” for the industry, because the industry’s

restructuring efforts have resulted in a “a stronger, more robust” industry at the end of the review

period.205 Indeed, they argue, the record shows that the majority of U.S. producers reported stable to

increased capacity, production, and capacity utilization during the latter part of the period of review, and

that the industry’s net sales values, gross profits, operating income, and capital expenditures all increased

toward the end of the review period.”206

 For its part, Timken argues that the Commission should again find that the domestic industry is

vulnerable to material injury.207 Timken points out that, “[i]f the reduction in capacity [for domestic BB

producers] had resulted in a stronger domestic industry, one would expect to see evidence of that in the

industry’s financial performance.”208 Timken emphasizes that the industry’s operating income margins

steadily declined throughout the review period, and that its financial performance was worse than its

performance during the original period of investigation.209 Timken also challenges NSK’s claim that “the

domestic industry’s restructuring efforts consisted primarily of shifting standard BB production offshore

and retooling remaining domestic capacity to produce custom {ball bearings},” noting that many of the

reported changes in industry capacity have nothing to do with shifting their production of various

categories of ball bearings to specific markets.210 Moreover, Timken argues, Respondents’ claims are

inconsistent with the requirements of the statute, which requires the Commission to focus on the condition

of the industry’s domestic operations, not its domestic and international operations.211
212 NSK I at 21-23.

213 NSK Comments at 5-7. 

214 CR/PR at Table BB-I-1 (***). 

215 CR/PR at Table BB-I-13.

216 CR/PR at Table BB-I-13.

217 E.g., CR/PR at Table BB-I-13 (***).

218 E.g., CR/PR at Table BB-I-13 (***).

219 CR at BB-I-55 (*** reported that it ***); CR at BB-I-53 (*** reported that it ***); *** U.S. Producer

Questionnaire at Response to Question IV-B-19 (***).

220 CR at BB-I-40, PR at BB-I-34.

221 Nor is it true, as NSK suggests, that the shift of production overseas by the industry is a new trend that

began occurring in this period of review. NSK Comments at 4. In the first reviews of the ball bearings orders, for

example, the Commission specifically addressed this issue and noted as follows:

31

c. Analysis.

As instructed by the Court, we have considered the industry’s restructuring efforts during the

period to assess whether these efforts explain “much of the seemingly negative data” concerning the

industry’s overall condition, and whether the industry was actually in a stronger and less vulnerable

condition at the end of the period due to these restructuring efforts.212 As discussed below, we do not

believe that the declines in the industry’s capacity, production, and sales levels during the period have

resulted in a “stronger,” more “robust,” and more “efficient” industry that is less vulnerable to the likely

effects of the subject imports, as the NSK companies contend. Instead, we find that the serious declines

in almost all significant indicia of the industry’s condition establish that the industry was in a weakened

condition at the end of the period and was therefore vulnerable to likely material injury from the subject

imports.

First, we do not agree with the NSK companies’ claims that the industry’s capacity and

production reductions were effectuated primarily to rationalize the industry’s production of commodity

bearings in overseas markets and to focus their domestic operations on higher-value, customized ball

bearings.213 Of the domestic producers that reported shutting down significant production capacity

during the period of review,214 only two, ***, reported in their questionnaires that the closure was

intended to retool their capacity to produce high-valued, customized bearings.215 Instead, the majority of

producers who shuttered significant capacity during the period reported that the reductions were caused

by an inability to meet aggressive import competition in the U.S. market,216 reported other reasons for

their production reductions,217 or reported no specific reasons for the shutdowns.218 Further, ***, the three

domestic producers that reported the largest capacity declines during the period, all stated that they closed

production facilities in the United States due, in significant part, to price competition from subject and/or

non-subject imports.219 Furthermore, the record established that the U.S. producers still sold substantial

amounts of commodity-type ball bearings in the market during the period of review, with approximately

33.1 percent of the industry’s sales consisting of these types of ball bearings.220 Given this, we do not

find that the industry’s capacity and production reductions were simply part of an overall industry

strategy to locate most of their commodity production operations overseas, as the NSK companies have

suggested throughout these proceedings.221 Instead, the circumstances underlying these shut-downs
The industry includes production facilities owned by large multinational producers that have facilities in

several nations. These large producers typically produce for the local market, but also engage in some

degree of global rationalization . . . The expansion of overseas facilities reflects in part a trend by large

bearing manufacturers to localize production facilities in response to customers needs. 

USITC Pub. 3309 at 59-60.

222 Calling the changes experienced by the domestic industry a "strategic rationalization" begs the question

of why it might be considered strategic for the domestic industry to undertake such changes. We concede that, in

some circumstances, global rationalization could represent a change in management philosophy freely adopted by

the industry. On the facts of these reviews, however, we find that the industry’s strategic management decisions

were generally reactive and defensive actions driven by the economic realities imposed on the domestic industry,

which were caused in significant part by competition from low-priced imports and other considerations.

223 CR/PR at Table C-2. 

224 CR/PR at Tables BB-I-1 & C-2. 

225 CR/PR at Tables BB-I-1 & C-2. In this regard, the record shows that the declines in the industry’s

production and shipment quantities over the period of review were 37.9 and 41.8 percent, respectively, significantly

higher than the decline of 24.8 percent in the industry’s capacity during the period. CR/PR at Table C-2.

226 Moreover, we would add, these declines of *** million bearings represent *** percent of the industry’s

total production levels in 2005 and *** percent of the industry’s U.S. shipment levels in 2005. CR/PR at Table BBI-1. 

32

suggest that the industry has shut down much of its capacity due in significant part to the fact that it is

unable to compete on price with subject and non-subject imports in the market.222

Second, even if the reductions in the industry’s capacity could be attributed to a strategic decision

on the industry’s part to rationalize the standard bearing production operations overseas, the declines in

the industry’s capacity levels do not fully account for the corresponding declines in the industry’s

production levels and sales volumes during the period of review. In this regard, the record shows that the

industry’s production capacity fell from 448.8 million bearings in 2000 to 338.3 million bearings in 2005,

thus representing an overall decline in capacity of 110.4 million ball bearings during the period.223 The

industry’s production and shipment quantities fell by a greater volume than its capacity during the period

of review, however.224 Between 2000 and 2005, the industry’s production and shipment levels both

declined by approximately 125 million bearings, a decline that was approximately 15 million bearings

larger than the decline in the industry’s capacity during the period.225 Since this 15 million bearing

decline represents approximately 12 percent of the declines in the industry’s total production and

shipment quantities between 2000 and 2005, the record shows that a significant amount of the declines in

the industry’s production, shipment and sales levels declines cannot be attributed to the reductions in the

industry’s capacity during the period, whether or not that reduction was designed to rationalize its

bearings production in the U.S. and other markets.226

Furthermore, the NSK companies’s claim that the industry’s restructuring efforts during the

period have resulted in a “stronger,” “robust” and “healthy” industry are clearly not borne out by the

record. In addition to the capacity, production, and shipment declines relied upon by the NSK companies

in their remand comments, the domestic industry experienced serious, and often double digit, declines in

the other indicia of its condition. For example, during the period of review, the industry’s gross profits

declined from $358.4 million in 2000 to a period low of $218.6 million in 2005, representing a decline of
227 CR/PR at Table C-2.

228 CR/PR at Tables BB-I-1 & C-2. In fact, the industry actually experienced operating losses of 

$8.7 million in 2004. Id.

229 CR/PR at Table C-2.

230 CR/PR at Tables BB-III-8.

231 Moreover, this decline in profits, as well as the declines in the industry’s sales revenues, has impacted

the industry’s ability to reinvest in its operations. In particular, the industry’s capital expenditures fell from $107.7

million in 2000 to $77.2 million in 2005, a decline of 28.3 percent. CR/PR at Tables BB-I-1 & C-2.

232 CR/PR at Table BB-I-1. 

233 CR/PR at Table C-2.

234 CR/PR at Tables BB-I-1 & C-2.

235 CR/PR at Tables BB-I-1 & C-2.

33

39.1 percent during that period.227 Similarly, the industry’s operating income levels fell sharply during

the period, falling from a total of $132.0 million in 2000 to only $7.3 million in 2005, thus representing a

decline of approximately 94.4 percent during that period.228 The industry’s operating income margins

also fell significantly during the period, dropping from 6.1 percent in 2000 to 0.4 percent in 2005, which

represents a 5.7 percentage point decline over the period.229 The industry’s gross profit margins also fell,

declining from 16.6 percent in 2000 to 11.5 percent in 2005.230 In other words, the industry’s gross profit

and operating income levels and its gross profit and operating margins were considerably worse at the end

of the period of review than at the beginning.231 They were, moreover, considerably lower at the end of

the period of review than they were during the original period of investigation.232 If the industry’s

reported capacity and production declines had indeed caused it to be stronger and more robust at the end

of the period, as NSK claims, then the industry’s gross profit and operating income margins should have

remained relatively stable, or even improved, by the end of the period. As can be seen, this is simply not

the case.

In addition to watching its profits decline during the period, the industry has also seen its cost

structure deteriorate significantly during the period of review, thus belying the claim that the industry has

become more efficient as a result of its capacity reductions. Despite the reductions in its capacity and

declines in its aggregate costs, the ratio of the industry’s cost of goods sold to its sales revenues increased

by 5.1 percentage points during the period, growing from 83.4 percent in 2000 to 88.5 percent in 2005.233 

Given the increase in this ratio, it can hardly be said that the industry has become more efficient in cost

terms as a result of its decision to reduce its capacity levels during the period. On the contrary, the

industry has instead become increasingly susceptible to the likelihood of price-suppression from

additional volumes of dumped imports from the cumulated countries, if the orders were revoked.

Furthermore, the industry’s capacity utilization rates do not indicate that the industry has become

healthier and more robust, as the NSK companies claim. If the industry had become more efficient and

stronger as a result of its reported capacity reductions during the period, we would expect that the

industry’s capacity utilization rates would have remained stable or improved over the period as a result of

these reductions. The record shows, however, that the industry’s capacity utilization declined

considerably in the period, first falling from 73.1 percent in 2000 to 61.2 percent in 2001,234 and then

remaining between 60.2 to 63.8 percent through 2005.235 Moreover, these capacity utilization rates are

significantly lower than the industry’s capacity utilization rates during the original period of investigation
236 CR/PR at Tables BB-I-1 & C-2.

237 The industry’s average unit values for net sales were $*** in 2000, $*** in 2001, $*** in 2002, $*** in

2003, $*** in 2004, and $*** in 2005. CR/PR at Table C-2. The average unit values for the industry’s U.S.

shipments exhibited a similar trend. Id.

238 CR/PR at Tables BB-1 & C-2. In their comments, the NSK companies point to increases in some of the

indicia of the industry’s condition, such as its net sales value, gross profits, operating income, and capital

expenditures, during the last year or two of the period, as a sign of the industry’s new-found robustness. NSK

Comments at 2. While there was some improvement in these factors in the last years of the period, all of these

factors remained considerably below the levels seen in 2000, the first year of the period. Accordingly, we do not

consider these improvements to be a sign of the industry’s incipient health. 

239 CR/PR at Tables BB-1 & C-2.

34

and the first sunset review, when they ranged between 70 and 76 percent.236 Since the industry’s capacity

reductions appear not to have allowed it to operate at a stable or more efficient level of capacity

utilization, we cannot conclude that these reductions have caused the industry to become stronger and

more efficient during the period. Instead, we find these declines to be a sign of the industry’s increasing

susceptibility to likely material injury by reason of the subject imports upon revocation.

Similarly, the declines in the industry’s net sales revenues and market share levels are not a sign

of a “strong” and “robust” industry. To the extent that U.S. producers have actually reduced their

capacity levels as a result of shifting their production focus from lower-value, standardized ball bearings

to higher-value, customized ball bearings, we would expect that they would manage that transition in a

way that would allow them to maintain a reasonably stable stream of revenues. In particular, we would

expect that shifting to higher-value products would allow the industry to maintain a reasonably consistent

revenue level, given the increase in the U.S. industry’s unit prices over the period.237 It has not been able

to do so, however, as its net sales values fell by 12.0 percent during the period of review, declining from

$2.2 billion 2000 to $1.9 billion in 2005.238 

We also find that the industry’s market share levels reflect an increasingly vulnerable industry. 

As indicated above, if it were true that the industry were shifting to higher-value, custom products in the

U.S. market, as the NSK companies claim, we would expect that the industry would have maintained a

reasonably stable market share, in value terms, over the period, because it should have been able to

compensate for declining sales volumes with higher sales prices in the market for its customized bearings. 

However, despite an increase in the industry’s average unit values over the period of review, the

industry’s market share declined by 4.3 percentage points (in terms of value) over the period, falling from

67.5 percent in 2000 to 63.2 percent in 2005.239 

Finally, we note that the statute directs us to consider whether the “industry” is “vulnerable to

material injury” upon revocation of an order. 19 U.S.C. § 1675a(a)(1)& (4). The statute provides that the

“industry” consists of the “producers as a whole of a domestic like product, or those producers whose

collective output of a domestic like product constitutes a major proportion of the total domestic

production of the product.” 19 U.S.C. § 1677(4). Thus, we must focus our vulnerability analysis on

whether the domestic production operations of the industry are in a vulnerable or healthy state, not

whether the overall operations of the domestic producers and their overseas affiliates are strong and

robust. Furthermore, the SAA establishes that the determination that an industry is vulnerable to the

likely impact of subject imports can depend on factors having nothing to do with the subject imports, such

as a decision to shift production overseas, changes in demand trends, or changes in consumer
240 SAA at 885 (other factors not related to the subject imports “may demonstrate that an industry is facing

difficulties from a number of sources and is vulnerable to dumped or subsidized imports.”). In this respect, we note

that NSK mistakenly assumes that the industry’s vulnerability must be caused by the subject imports. NSK

Comments at 7 & 11 (arguing that the declines in the industry’s condition were “caused by the industry’s

restructuring, and not by imports of the subject bearings.”) The industry’s vulnerability can be caused by any

number of factors having nothing to do with subject imports, including a decision to substantially reduce its capacity

and production levels, demand or regulatory changes, or consumer preferences. 

241 As the Court of International Trade has acknowledged, “{u}nderlying the vulnerability analysis is the

principle that the foreign industry {and therefore the Commission} must 'take the industry as [it]finds it.’” 

Committee for Fair Beams Imports v. United States, 27 CIT 932, 961 (2003) (quoting Hosiden Corp. v. Advanced

Display Mfrs. of America, 85 F.3d 1561, 1569 (Fed. Cir. 1996)). 

242 NSK I at 7-11. 

243 NSK I at 11. 

244 As a threshold matter, JTEKT observes that the Court has already conclusively determined that the

Bratsk triggering factors are satisfied in this proceeding. JTEKT Comments at 2. According to JTEKT, therefore,

the Commission “should proceed directly to the Bratsk analysis of non-subject imports as required in the remand

instructions.” JTEKT Comments at 2-3.

35

preferences.240 Given these considerations, we are statutorily given the discretion to consider any

significant deterioration in the industry’s condition, whatever its source or underlying rationale, to be an

indication of the industry’s vulnerability.241 Because the record shows that the industry experienced

substantial declines in almost all of its economic indicia and was therefore in a considerably smaller and

more weakened condition at the end of the period, we believe that a finding that the industry is vulnerable

to the likely impact of the subject imports upon revocation is warranted here. 

For the foregoing reasons, as well as for the reasons the Commission discussed in its original

views, we find that the domestic industry is vulnerable to the likely adverse impact of the subject imports

upon revocation. 

2. Response to the Court’s Instruction to Apply a Bratsk-style

Analysis In these Reviews

a. The Court’s Instructions. 

As previously discussed, in NSK I, the Court concluded that the basic principles of Bratsk were

applicable in a sunset review and that the Commission should therefore apply a Bratsk-style replacement

analysis on remand.242 After finding the Bratsk triggering factors were met in these reviews, the Court

instructed the Commission to analyze on remand “whether non-subject imports have captured, or are

likely to capture, market share previously held by the subject imports, and whether this level of

displacement makes it unlikely that removal of the orders will lead to continuation or recurrence of

material injury as a result of subject imports.”243 

b. The Parties’ Arguments 

The Japanese respondents JTEKT and Koyo Corporation (“JTEKT”) argue that, if the

Commission applies the Court’s “replacement” test here, the Commission should conclude that the

cumulated subject imports will not cause the continuation or recurrence of material injury to the domestic

industry upon revocation of the orders.244 JTEKT contends that the non-subject imports are more likely
245 JTEKT Comments at 7-8.

246 JTEKT Comments at 7-8

247 JTEKT Comments at 8.

248 JTEKT Comments at 9-10.

249 JTEKT Comments at 10.

250 JTEKT Comments at 11.

251 JTEKT Comments at 13-14. JTEKT adds that, “[t]he Commission has never explained how it could

find, on the one hand, that unfettered Chinese imports were not causing, and did not threaten to cause, injury to the

domestic industry in Ball Bearings from China, but, on the other hand, that subject imports would cause a recurrence

of injury in the underlying sunset review.” Id. at 14. JTEKT submits that, “if Chinese imports, which chronically

undersell both the subject imports and domestic products and whose production capacity is expanding, pose no

threat to the domestic industry, the higher priced subject imports similarly pose a negligible risk of material injury to

the domestic industry in the reasonably foreseeable future.” Id. at 14.

252 In its brief, Timken first acknowledges that the Court has not given the Commission the opportunity to

address the Bratsk triggering factors but nonetheless contends that the Commission should do so, and should find

that they are not satisfied here. Timken Comments at 3-5. 

253 Timken Comments at 5.

36

than subject imports to be the cause of material injury to the domestic industry if the orders are revoked. 

In this regard, JTEKT asserts that the data obtained on remand show that the production capacity of nonsubject producers far exceeded U.S. apparent consumption in 2004 and 2005.245 JTEKT also points out

that non-subject imports accounted for *** percent of U.S. apparent consumption in 2004 and *** percent

of U.S. apparent consumption in 2005, and that the volumes of non-subject imports were equal to ***

percent and *** percent of U.S. domestic production capacity in 2004 and 2005, respectively.246 JTEKT

asserts that this comparison of non-subject import volume to domestic capacity “reveals that the supply of

non-subject imports has been increasing at the same time that domestic production capacity has

declined.”247 According to JTEKT, these data indicate that the volume of the non-subject imports are

likely to remain significant upon revocation. 

With respect to pricing, JTEKT argues that the price comparison data indicate that the nonsubject imports undersold both domestic and subject bearings and that the “large volume of non-subject

imports is {therefore} priced aggressively in comparison to domestic merchandise.”248 JTEKT also

argues that, when “[t]aken together, the data concerning non-subject import volumes and price effects

indicate that non-subject imports are likely to have a significant adverse impact on the domestic

industry.”249 

JTEKT raises two additional points concerning the Court’s replacement analysis. First, JTEKT

argues, “the fact that lower-priced non-subject imports would be purchased in preference to subject

imports indicates that subject imports will have difficulty entering the U.S. market in greater quantities if

the antidumping duty orders are revoked.”250 Id. at 11. Second, JTEKT emphasizes that any “likely

future injury caused by subject imports is . . . minimized when viewed in conjunction” with the growing

presence of low-priced non-subject imports from China.251 

For its part, Timken argues that, even if the Commission applies the Court’s “replacement”

analysis, it should not conclude that subject imports are unlikely to cause a recurrence or continuation of

material injury if the bearings orders are revoked.252 Timken asserts that the non-subject imports have

not replaced, and are not likely to replace, the subject imports, noting that the market share of the

cumulated subject imports has increased during the review period, even with the orders in place.253
254 Timken Comments at 5. Timken points out that, after revocation of the orders on tapered roller bearings

and cylindrical roller bearings in the 2000 sunset reviews of the bearings orders, the subject producers increased

their shipments of those products to the United States considerably. Id. at 6.

255 Timken Comments at 6-8.

256 Timken Comments at 8.

257 Timken Comments at 9.

258 Timken Comments at 10.

259 NSK I at 11. 

260 NSK I at 11; NSK II at 27. In this regard, we note that the Court’s instructions can be broken down into

three distinct but related analytical inquiries. First, the Court directed the Commission to assess whether “nonsubject imports have captured ... the market share previously held by the subject imports.” Id (emphasis added). 

Second, the Court instructed the Commission to assess whether the “non-subject imports ... are likely to capture

market share previously held by the subject imports” in its analysis. Id. Third, to the extent the non-subject

imports have or will capture the market share held by the subject imports, the Court has instructed the Commission

to assess “whether this level of displacement makes it unlikely that removal of the orders will lead to continuation or

recurrence of material injury as a result of subject imports.” Id. 

37

Timken also points out that the subject imports from Japan and the United Kingdom increased their

market share at a faster rate than the non-subject imports between 2003 and 2005, and contends that it is

reasonable to infer that subject imports will increase even more if the orders were revoked.254 As further

evidence that the subject imports are likely to increase their U.S. exports significantly upon revocation,

Timken notes that purchasers reported the orders were impairing their ability to purchase subject imports

and that subject import pricing would have a beneficial effect on market prices.255

Timken adds that the subject producers are among the most important exporters of ball bearings

in the world market and that their exports to the U.S. market increased during the period of review.256

Despite the limited response to the Commission’s remand questionnaires, Timken contends these data

establish that non-subject imports are unlikely to displace subject imports, since bearings “producers in

non-subject countries have less capacity and less unutilized capacity than producers in subject

countries.”257 Finally, Timken points out that, “[i]f the substantial and widespread underselling of subject

imports by non-subject imports during the review period could not displace the former with the orders in

place, there is no reasonable basis to conclude that they would do so with the orders removed.”258 

Analysis. As directed by the Court, we have considered “whether non-subject imports have

captured, or are likely to capture, market share previously held by the subject imports, and whether this

level of displacement makes it unlikely that removal of the orders will lead to continuation or recurrence

of material injury as a result of subject imports.”259 As we discuss below, we do not find that the nonsubject imports have captured, or are likely to capture, the market share previously held by the subject

imports and we do not find that any such displacement makes it unlikely that revocation of the orders will

result in a recurrence or continuation of material injury by reason of the subject imports. Accordingly,

we again find that revocation of the antidumping duty orders covering ball bearings from Japan and the

United Kingdom is likely to result in the continuation or recurrence of material injury by reason of subject

imports.

 To address the Court’s order on this issue, we first consider the Court’s instruction that the

Commission must assess whether “non-subject imports have captured . . . the market share previously

held by the subject imports.”260 After review of the record, we find that the non-subject imports have not

fully, or even mostly, captured the market share previously held by the subject imports before the orders
261 CR/PR at Tables BB-I-1 & C-2. 

262 CR/PR at Table BB-I-1 & C-2 (these data do not include the import data for Singapore). The market

share of the subject imports was 17.3 percent in 1985, 19.7 percent in 1986, and 20.0 percent in 1987. Id.

263 CR/PR at Tables BB-I-1 & C-2 (these data do not include the import data for Singapore). The market

share of the subject imports fell from 20.0 percent in 1987 to 13.2 percent in 2005, the last year covered by these

second sunset reviews.

264 CR/PR at Table BB-I-1 & C-2 (these data do not include the import data for Singapore). 

265 CR/PR at Table BB-I-1 & C-2 (these data do not include the import data for Singapore). The subject

imports’ share of the market was 14.1 percent in 1997 and 14.2 percent in 1998.

266 CR/PR at Table BB-I-1 & C-2 (these data do not include the import data for Singapore). 

267 CR/PR at Table BB-I-1 & C-2 (these data do not include the import data for Singapore). The subject

imports share of the market was 12.9 percent in 2000, 12.5 percent in 2001, 11.5 percent in 2002, 11.7 percent in

2003, 12.8 percent in 2004, and 13.2 percent in 2005. Id.

268 Commissioner Lane does not join this sentence (and other statements concerning the increase in subject

imports in the analysis above) because she cumulated the subject imports from Singapore with the other subject

imports for purposes of her determination. With the imports from Singapore included in her analysis, the record

shows that the market share of the subject imports declined somewhat during the period, decreasing from 14.1

percent in 2000 to 13.3 percent in 2005. CR/PR at Tables BB-I-1 & C-2. Nonetheless, she agrees with the other

Commissioners that the subject imports maintained a stable and significant share of the market throughout the period

of review and that the non-subject imports have not captured, and are not likely to capture, the market share

previously held by the subject imports. 

269 CR/PR at Table BB-I-1 & C-2. 

38

were put in place.261 In 1987, the last year of the period of investigation, the market share of the subject

imports reached a level of 20.0 percent in 1987, which was their highest market share level during that

period.262 After the orders were imposed, the subject imports lost approximately seven percentage points

of market share during the period from 1987 through 2005, the final year of the period covered by these

second sunset reviews.263

Nonetheless, despite this loss of six percentage points of market share, the subject imports have

maintained a significant presence in the market since the imposition of the orders.264 For example, despite

a loss of 5.9 percentage points of market share between the imposition of the orders and the beginning of

the first sunset reviews, the subject imports maintained a significant share of the market during the first

sunset reviews, with their market share staying at a level of 14 percent.265 Similarly, despite losing an

additional 1.3 percent of market share between the first sunset review and the beginning of the second

sunset reviews, the subject imports continued to maintain a significant share of the market during the

period covered by the second sunset reviews, with their market share ranging between 11.5 and 13.2

percent during the period from 2000 to 2005.266 In fact, although the market share of the subject imports

fluctuated somewhat during the period covered by these second sunset reviews, the market share of the

subject imports actually grew somewhat between 2000 and 2005, increasing from 12.9 percent in 2000 to

13.2 in 2005.267 268 In other words, despite some decline in market share, the subject imports have

remained a consistent and significant presence in the market after the orders were put in place. 

Accordingly, the non-subject imports have not captured all, or most of the market share

previously held by the subject imports before the orders were imposed. It is true that the market share of

the non-subject imports has grown considerably since the orders were imposed, with the market share of

the non-subject imports increasing from a level of 5.2 percent in 1987 to 23.6 percent in 2005.269 

However, most of the market share increases obtained by the non-subject imports occurred at the expense
270 CR/PR at Table BB-I-1 & C-2. The market share of the non-subject imports was 5.2 percent in 1987,

the last year of the period of investigation, 14.0 percent in 1997, 14.7 percent in 1998, 18.4 percent in 2000, 18.7

percent in 2001, 19.8 percent in 2002, 20.4 percent in 2003, 23.2 percent in 2004, and 23.6 percent in 2005.

271 CR/PR at Tables BB-I-1 & C-2. Moreover, because the non-subject imports entered the market and

took market share primarily from the domestic industry, we find that it was not the orders that drew most of the nonsubject imports into the market, but the attractiveness of the U.S. market. In our view, this indicates that nonsubjects will not readily exit the market and will compete aggressively with the likely significant volumes of subject

imports that enter the market after revocation of the orders, in an attempt to maintain their existing market share. 

This intense competition between the subject and non-subject imports will likely have a significant adverse impact

on domestic market share, sales volumes and revenues, and pricing. In other words, we do not agree with JTEKT

that the significant and growing volumes of the low-priced non-subject imports will “serve as a formidable bulwark”

that will prevent any significant volume increase or price effects from the subject imports after revocation. JTEKT

Comments at 11-12. 

272 NSK I at 11; NSK II at 27.

273 NSK I at 10-11.

274 We note that the Court did not make clear whether the Commission was supposed to perform this

“likely market share replacement” analysis before or after the order is revoked. NSK I at 7-10. We believe that the

most reasonable interpretation is that the Court expects the Commission to assess whether the non-subject imports

are likely to replace the subject imports after revocation of the order, since this is the primary focus of the sunset

provisions of the statute. 

275 CR/PR at Tables BB-I-1 & C-2.

276 CR/PR at Tables BB-I-1 & C-2.

39

of the domestic industry, with the industry losing 10.1 percentage points of market share to the nonsubject imports between 1987, the last year of the period of investigation, and 2005.270 Moreover, the

subject imports actually gained a small amount of market share from the other participants in the market

between 2000 and 2005, thus establishing that non-subject imports have captured no market share at all

from subject imports during the five most recent years covered by these second reviews. Given the

foregoing, we find that the record establishes that the subject imports have continued to maintain a

consistent and significant presence in the U.S. market and that the non-subject imports have not seriously

displaced the subject imports from the market during the period after imposition of the orders.271 

Accordingly, we do not find that the “non-subject imports have captured . . . the market share previously

held by the subject imports.”272

Second, we consider the Court’s instruction that the Commission assess whether “non-subject

imports ... are likely to capture market share previously held by the subject imports.”273 After

considering the original record and the additional evidence obtained on remand, we find that the record

evidence does not establish that the non-subject imports are likely to capture the market share previously

held by the subject imports upon revocation.274 In coming to this conclusion, we have relied primarily on

the historical market share trends that we previously discussed. These trends indicate that, while the nonsubject imports did capture some market share from the subject imports before the beginning of the period

covered by these second sunset reviews, they have not captured any meaningful level of market share

from the subject imports since the beginning of these second reviews. 275 Instead, during the most recent

period covered by these reviews, the subject imports have continued to maintain a significant share of the

market even with the orders in place, and have even increased their market share in a small fashion.276 

Given these considerations, we do not find that in the reasonably foreseeable future non-subject imports

are likely to capture the market share previously held by the subject imports before the orders were

imposed. 
277 In coming to this conclusion, we note that there has been an increase of 5.2 percent in the market share

of the non-subject imports between 2000 and 2005, which might otherwise suggest that the non-subject imports

would continue gaining market share in the reasonably foreseeable future once the orders are revoked. CR/PR at

Tables BB-I-1 & C-2. But, as we have previously pointed out, the record also establishes that none of this market

share gain was made at the expense of the subject imports during the period between 2000 and 2005, even with the

disciplining effect of the orders in place. This indicates that, whether or not the orders are in place, the non-subject

imports are unlikely to capture significant market share from the subject imports in the reasonably foreseeable future. 

278 See RSR at I-1-I-2, II-1-II-12.

279 RSR at II-1. The Commission received responses reflecting a reasonable degree of coverage from nonsubject producers in five of the other ten non-subject countries: France (the only non-subject producer sent a

questionnaire responded); Romania (2 of 2 responded), Slovakia (2 of 3 responded), Spain (1 of 1 responded), and

Thailand (2 of 3 responded).

280 RSR at II-1. 

281 RSR at II-1, n.2.

282 The questionnaire responses from the producers in China indicate the extent to which the questionnaires

provide only a limited level of coverage for non-subject producers generally. Only 4 of 21 non-subject producers

from China responded to the Commission’s questionnaires. As shown in Table BB-IV-1 of the Confidential Staff

Report, non-subject imports from China were 265.2 million BBs in 2004 and were 276.3 million BBs in 2005. 

However, the four responding non-subject producers from China reported just *** million BB exports to the U.S.

market in 2004, and just *** million BB exports to the U.S. market in 2005. CR/PR at Table C-2; RSR at Table II2. 

40

In other words, the historical market share trends suggest that the presence of the non-subject

imports in the market will not prevent the subject imports from seeking to regain market share in a

significant fashion from the domestic industry, once the disciplining effects of the orders are removed. 

Moreover, we determine that these trends do not seriously call into question our finding that the subject

imports will, upon revocation, continue to seek to gain market share at the expense of the domestic

industry by underselling, that they will have significant price depressing and suppressing effects on

domestic prices as a result of this underselling, and that they will therefore have a significant adverse

impact on the industry’s sales volumes, sales revenues, market share and profitability.277

In coming to these conclusions, we have also examined the capacity, production, and shipment

data that was obtained on remand from producers in the major non-subject countries that supply ball

bearings to the United States.278 We have chosen to place very little weight on these data because the

responses received by the Commission to these questionnaires provide only limited coverage for

producers in half of the non-subject countries in question.279 In particular, we note that the Commission

received questionnaires from 1 of 10 Canadian producers to whom the staff sent questionnaires, 4 of 21

Chinese producers, 2 of 7 Korean producers, 2 of 7 Mexican producers, and 1 of 7 Taiwanese

producers.280 Given that China, Korea and Canada were the three of the largest non-subject suppliers of

ball bearings to the U.S. market during the period of review,281 we believe that, on the whole, the data

obtained from these questionnaire responses is of limited utility, at best.282 Accordingly, we do not think 
283 To the extent that this limited data does have any relevance, it does not suggest that there is likely to be

a sudden significant increase in the volume of the non-subject imports that would overwhelm the subject imports and

capture significant amounts of their market share upon revocation of the orders. Of the five countries that provided

a reasonably complete set of responses from their non-subject producers (i.e., France, Romania, Slovakia, Spain,

and Thailand), the non-subject producers in two countries (France and Spain) shipped less than *** percent of their

total shipments to the United States during the period, the non-subject producer in one country (France) shipped less

than *** of its total shipments to export markets, and two (Romania and Thailand) were operating at capacity

utilization rates in excess of *** percent. RSR at Tables II-3, II-6 to II-8, and II-10. The remaining country

(Slovakia) had a small amount of total capacity and was operating at a capacity utilization rate of approximately ***

percent in 2004 and 2005. Id. at Table II-7. Morever, the non-subject imports have been able to compete in the

market without the disciplining effects of an order, which indicates to us that there is unlikely to be such a sudden

and significant increase in their exports to the United States in the reasonably foreseeable future that would minimize

the effects of any likely increase in subject imports after the orders are revoked. 

284 NSK I at 12. By making this statement, the Court seems to be indicating that non-subject imports will

constitute the “overriding cause” of material injury to the industry if they are large enough or significant enough to

be the “principle” or “most important” cause of injury to the industry. However, Congress, the Courts and the

Commission have consistently stated that the subject imports need not be the “sole” or “principal” cause of injury to

the industry. Nippon Steel Corp., 345 F.3d at 1381; see also SAA at 885. Thus, as long as the subject imports are

more than a minimal or tangential contributor to the injury being suffered by the industry, causation is established,

even if the non-subject imports themselves cause a significantly greater portion of the injury being suffered by the

industry. Id. 

285 RSR at Table III-15. 

286 RSR at Tables III-1 to III-15.

287 See CD at 67, n. 363.

288 CD at 58-59 & CR/PR at Table BB-II-4.

289 In its remand comments, JTEKT argues that the non-subject imports are now in the market in significant

volumes, are currently underselling the subject imports and are likely to have significant adverse effect on the

industry, thus indicating that they will be the only significant cause of injury to the industry upon revocation. 

JTEKT Comments at 7-11. We note that the volume and price trends cited by JTEKT have occurred with the

41

that it undercuts, in any significant manner, our conclusion that the non-subject imports are not likely in

the reasonably foreseeable future to capture the market share previously held by the subject imports.283

Finally, in order to assess whether the significant volumes of non-subject imports in the market

are likely to be the “overriding cause of material injury to the domestic industry” upon revocation of the

orders, as instructed by the Court in NSK I,

284 we have also considered the price comparison data for the

domestic, subject and non-subject products that we collected on remand.285 These price comparisons

show that the non-subject imports undersold the domestic like products in approximately 66 percent of

possible price comparisons and undersold the subject imports in approximately 72 percent of the possible

price comparisons.286 Although these levels of underselling are significant, they represent a level of

underselling by non-subject imports that has occurred with the volume- and price-disciplining effects of

the orders in place. As we have previously noted, we have concluded that the subject imports will, upon

revocation of the orders, begin aggressively underselling the domestic and non-subject merchandise in an

attempt to regain the market share that they have lost since the original period of investigation, as well as

additional market share. Because price is an important aspect of the purchase decision287 and because

there is a good degree of substitutability between the domestic, subject and non-subject imports,288 these

levels of underselling by the subject imports are likely to have a significant adverse effect on both

domestic and non-subject prices, and on the overall condition of the industry.289 In sum, even with the
volume- and price-disciplining effects of the orders in place, and that revocation of the orders will allow the subject

imports to compete more aggressively on price with the domestic and non-subject imports in the market in an

attempt to regain market share. Moreover, even if non-subjects are a cause of material injury in the reasonably

foreseeable future, it is clear that the subject imports can themselves also be a cause of injury as well. SAA at 885

(factors other than subject imports may be causing injury to the industry but “may also demonstrate that an industry

is facing difficulties from a variety of sources and is vulnerable to dumped or subsidized imports. . . If the

Commission finds that an industry is vulnerable to injury from subject imports, it may determine that injury is likely

to continue or recur, even if other causes, as well as future imports, are likely to contribute to future injury”); see

also Nippon Steel Corporation, 345 F.3d at 1381. 

290 Finally, JTEKT claims that “[t]he Commission has never explained how it could find, on the one hand,

that unfettered Chinese imports were not causing, and did not threaten to cause, injury to the domestic industry in

Ball Bearings from China, but, on the other hand, that subject imports would cause a recurrence of injury in the

underlying sunset review.” JTEKT Comments at 14. This argument is mistaken in two respects. First, it has been

long-established that the Commission is not required to explain the differences between its findings in one

investigation and another review, even if they involve similar products, because each Commission investigation or

review is sui generis, and involves a unique combination of many economic variables. See, e.g., Cleo, Inc. v. United

States, 2007 U.S. App. LEXIS 21642 at *16 (Fed. Cir. Sept. 10, 2007); Nucor v. United States, 414 F.2d 1331, 1340

(Fed. Cir. 2005). Second, the Commission quite clearly explained why it made a negative injury determination in its

Chinese ball bearings investigation. For example, it noted that the record in that investigation showed that the

increase in the volume of the subject imports was “modest,” that the increase “came at the expense of non-subject

imports,” and that there was no evidence of price effects from the Chinese imports. Ball Bearings from China, 731-

TA-989, USITC Pub. 3593 at 16-20 (Apr. 2003). Moreover, in our original and these remand views, we have

provided a detailed discussion of our affirmative findings in these reviews. To contend that the Commission has

“never explained” why it made a negative determination in one matter and affirmative determinations in these

reviews is both legally and factually unfounded. 

291 NSK I at 11. 

42

significant volume of non-subject imports in the market, we expect that revocation of the ball bearings

orders will result in severe price competition in the market between the domestic, subject and non-subject

merchandise, and that this intense price competition among the domestic, subject and non-subject

suppliers in the market will have a significant adverse effect on the prices and sales volumes of an already

vulnerable domestic industry.290 

Accordingly, we find that the non-subject imports have not captured, and are not likely to

capture, market share previously held by the subject imports, and that the evidence of record as to

displacement does not obviate our conclusion that removal of the orders will lead to continuation or

recurrence of material injury as a result of subject imports.291 Moreover, as we discussed above, we find

that the domestic industry is vulnerable to the likely adverse impact of the subject imports upon

revocation. Furthermore, we find that the subject imports are likely to enter the market in significant

volumes and at prices that will have a significant adverse impact on the industry’s prices. As a result, we

find that revocation of the orders would result in the entry of significant quantities of dumped subject

imports of ball bearings into the U.S. market and that these imports are likely to have a significant adverse

impact on the domestic ball bearings industry.
43

V. CONCLUSION

Accordingly, we determine that revocation of the antidumping duty orders on imports of ball

bearings from Japan and the United Kingdom would be likely to lead to continuation or recurrence of

material injury to an industry in the United States within a reasonably foreseeable time. 
44
 1 Certain Bearings from China, France, Germany, Italy, Japan, Singapore, and the United Kingdom,

Investigation. Nos. 731-TA-344, 391-A, 392-A and C, 393-A, 394-A, 396, and 399-A (Second Review), USITC

Publication 3876 (August 2006), p. 1. Commissioner Deanna Tanner Okun not participating. Ibid.

 2 NSK Corp. et al. v. United States, Slip Op. 08-95 (Sept. 9, 2008).

 3

 Slip Op. at 23-38.

 4

 Slip Op. 08–95 at Judgment, pp.1-2.

 5

 The Defendant-Intervenor, The Timken Company (“Timken”), filed a similar motion for reconsideration with

the Court.

 6

 73 Fed. Reg. 72836 (Dec. 1, 2008). 

I-1

PART I: INTRODUCTION

BACKGROUND

On August 25, 2006, the U.S. International Trade Commission (“Commission” or “USITC”)

determined that revocation of the antidumping duty orders on ball bearings from France, Germany, Italy,

Japan and the United Kingdom (UK) would be likely to lead to continuation or recurrence of material

injury to an industry in the United States within a reasonably foreseeable time.1

The Commission’s determinations for Japan and the UK were appealed by Japanese and UK

respondents to the U.S. Court of International Trade (“Court”). On September 9, 2008, the Court

affirmed-in-part and remanded-in-part the Commission’s affirmative sunset determinations that

revocation of the orders on ball bearings from Japan and the United Kingdom would likely result in the

recurrence or continuation of material injury within a reasonably foreseeable time.2

 The Court affirmed

the Commission’s findings that the subject and imported merchandise were substitutable, that the volumes

of subject imports were likely to be significant upon revocation, and that the subject imports were likely

to have significant price effects upon revocation, among other things.3

 

However, the Court remanded the Commission’s affirmative determinations and instructed the

Commission to address certain issues. The Court instructed the Commission to (1) “conduct a Bratsk

analysis of nonsubject imports as outlined in this opinion;”(2) “reassess supply conditions within the 

domestic industry,” i.e., the industry’s restructuring efforts during the period of review, and (3)

“reexamine its findings with regard to likely impact and its decision to cumulate imports from the United

Kingdom in light of changes in its determinations that may result as a consequence of the foregoing

remand instructions.”4

 The Court ordered the Commission to file its remand results on these issues by

January 7, 2009. 

On October 8, 2008, the Commission re-opened the record and instructed the Office of

Investigations to collect data to perform the analysis of nonsubject imports outlined in the Court’s opinion

on remand. The Office of Investigations issued questionnaires seeking data on nonsubject pricing

(Importers’ questionnaire) and nonsubject foreign industry data (Foreign producers’ questionnaire) in

October 2008. The Office of Investigations issued these questionnaires to 76 nonsubject producers of ball

bearings 58 U.S. importers. 

On October 9, 2008, the Commission filed a motion with the Court asking it to reconsider its

instruction in light of the Federal Circuit’s subsequent decision in Mittal Steel Point Lisas v. United

States, 542 F.3d 867 (Fed. Cir. 2008)(“Mittal”), which clarified and limited the scope of the Bratsk

decision.5

 When the Commission filed this motion for reconsideration, it also asked that the Court stay

the remand proceeding, pending its decision on the reconsideration request. The Court granted this

request, and the Commission published notice of the stay of its remand proceedings in the Federal

Register on December 1, 2008.6
 7

 NSK Corp. et al. v. United States, Slip Op. 08-145 (Dec. 29, 2008).

 8

 The Federal Register notice cited in the tabulation are presented in app. A.

I-2

On December 29, 2008, Judge Barzilay denied the Commission’s motion for reconsideration.7 In

her opinion, Judge Barzilay instructed the Commission to file its remand determination with the Court by

May 4, 2009. She also authorized the other parties to file comments on the Commission’s remand

determination by June 22, 2009. Accordingly, on January 30, 2009, the Commission resumed its remand

proceedings in these reviews.

SUMMARY OF PROCEEDING

Information relating to the remand proceeding is provided below.8

Date Action

September 9, 2008 Remand issued by Court (Slip Opinion 08-95). 

October 8, 2008 Commission issues notice of remand proceedings, noting its intent to re-open

the record (73 FR 62317, October 20, 2008).

October 9, 2008 Commission’s files motion for reconsideration with the Court

December 1, 2008 Commission stays remand proceeding pending the Court’s consideration of its

motion for reconsideration (73 FR 72830, December 1, 2008)

December 29, 2008 Court denies Commission’s motion for reconsideration (Slip Opinion 08-145)

January 30, 2009 Commission issues notice of resumption of remand proceedings (74 FR 6173,

February 5, 2009)

March 16, 2009 Commission’s remand staff report

March 23, 2009 Submission of briefs by parties

May 4, 2009 Transmittal of the Commission’s determinations and views to the Court. 
 1

 Slip Op. 08-95 at 11, see also Slip Op.08-95 at 7 & 12.

 2

 Proprietary Customs data identified 58 firms as significant importers of ball bearings during the period for

which data were gathered. ***.

 3

 ***. 

 4

 Foreign producers questionnaires were also sent to producers in Austria, Germany, India, Italy, Japan, Poland, 

Singapore, and the United Kingdom

II-1

PART II: INFORMATION WITH RESPECT TO CAPACITY, PRODUCTION,

AND SHIPMENT DATA PROVIDED BY NONSUBJECT PRODUCERS

In its opinion, the Court directed the Commission to assess whether “nonsubject imports have

captured or are likely to capture market share previously held by the subject imports, and whether this

level of displacement makes it unlikely that removal of the orders will lead to a continuation or recurrence

of material injury as a result of imports.1

 Accordingly, the Commission reopened the record to obtain

data concerning the capacity, production, and shipment levels of nonsubject producers. Additionally, the

Commission sought to obtain quarterly pricing data from importers of nonsubject product.2

 The pricing

data obtained from importers’ questionnaires are discussed in Part III of this report, Information With

Respect to Pricing Data Provided by Importers of Nonsubject Product.

The Commission sent questionnaires to 76 foreign firms identified as producers of nonsubject

ball bearings during the period for which data were gathered. It received useable responses from 18

foreign producers located in 10 different countries ***3

 *** responded to the Commission’s request for

data.4

 That data are presented in tables II-1 through II-10.
II-2

Table II-1

Ball bearings: CANADA’S production capacity, production, purchases of third-party ball bearings,

shipments, and inventories, 2004-05

* * * * * * *

Table II-2

Ball bearings: CHINA’S production capacity, production, purchases of third-party ball bearings,

shipments, and inventories, 2004-05

* * * * * * *

Table II-3

Ball bearings: FRANCE’S production capacity, production, purchases of third-party ball bearings,

shipments, and inventories, 2004-05

* * * * * * *

Table II-4

Ball bearings: KOREA’S production capacity, production, purchases of third-party ball bearings,

shipments, and inventories, 2004-05

* * * * * * *

Table II-5

Ball bearings: MEXICO’S production capacity, production, purchases of third-party ball bearings,

shipments, and inventories, 2004-05

* * * * * * *

Table II-6

Ball bearings: ROMANIA’S production capacity, production, purchases of third-party ball bearings,

shipments, and inventories, 2004-05

* * * * * * *

Table II-7

Ball bearings: SLOVAKIA’S production capacity, production, purchases of third-party ball

bearings, shipments, and inventories, 2004-05

* * * * * * *
II-3

Table II-8

Ball bearings: SPAIN’S production capacity, production, purchases of third-party ball bearings,

shipments, and inventories, 2004-051

* * * * * * *

Table II-9

Ball bearings: TAIWAN’S production capacity, production, purchases of third-party ball bearings,

shipments, and inventories, 2004-051

* * * * * * *

Table II-10

Ball bearings: THAILAND’S production capacity, production, purchases of third-party ball

bearings, shipments, and inventories, 2004-051

* * * * * * *
II-4
 1

 These products were the same products selected for quarterly price comparison purposes in the Second Review.

As in the review investigations, data were requested separately for sales to distributors and for sales to end users. 

 2

 Proprietary Customs data identified 58 firms as significant importers of ball bearings during the period for

which data were gathered. ***. Importers were requested to provide pricing data for sales of ball bearings imported

from Canada, China, and Korea separately and for sales of ball bearings imported from all other nonsubject

countries.

III-1

PART III: INFORMATION WITH RESPECT TO PRICING DATA PROVIDED

BY IMPORTERS OF NONSUBJECT PRODUCT

The Commission requested U.S. importers of certain ball bearings to provide quarterly data for

the total quantity and f.o.b. value of selected products that were imported from nonsubject country

sources and were shipped to unrelated U.S. customers.1 2

 Data were requested for the period January

2004-December 2005 . The products for which pricing data were requested are as follows:

Product 11: 203PP Z10 SF 5000 (Fafnir)/ 6203.2RS (ISO) Radial ball bearing, single row,

deep groove, with two single lip contact seals and a steel retainer. ABEC 1. 17

mm bore, 40 mm OD, and 12 mm width.

Product 12: 6202ZZSBall bearing, single row, deep groove radial. 15 mm bore, 35 mm OD,

11 mm width with two shields. ABEC 3 tolerance.

Product 13: 5203KYY2 (Fafnir)/ 5203BLL (NTN)/ 5203KVVAN (Federal Mogul) Annular

ball bearing, double row, angular contact 3200 Series with (2) double lip rubber

seals. 0.640" bore, 1.5748" OD, and 1.730" width.

Product 14: 6001 RS1ZSBall bearing, single row, deep groove radial. 12 mm bore, 28 mm

OD, 8 mm width with one seal and one shield. ABEC 1 tolerances.

Product 15: 204RR6 (A4216 & A3812)SRadial ball bearing, single row with two seals.

ABEC 1 tolerance.

Product 16 : BAHB 311424 B. Ball bearing Hub unit, generation 1, inner diameter 42 mm,

outer diameter 75 mm, width 37 mm, weight 0.537 kg.

Product 17: 618/630 MA. Large size ball bearing, radial deep groove, bore diameter 630 mm,

outer diameter 780 mm, weight 72.2 kg, cage machined solid.

Product 18: RA100-RRB + CollarSBall bearing, single, deep groove radial with eccentric

locking collar, narrow overall width. 1 inch bore, 52 mm spherical OD, 1-7/32

inch overall width with two seals. ABEC 1 tolerance.

Product 19: SR6HH5, Stainless, R6 size. ABEC 5. 0.375" bore, 0.875" OD, and 0.3125"

width.
 3 Certain Bearings from China, France, Germany, Italy, Japan, Singapore, and the United Kingdom, Inv. Nos.

731-TA-344, 391-A, 392-A and C, 393-A, 394-A, 396, and 399-A (Second Review), Confidential Staff Report,

INV-DD-084, app. H, pp. H-3 through H-24.

 4

 Pricing data reported in the second review investigations accounted for approximately 2.9 percent of U.S.

producers’ shipments of BBs in 2005 (by quantity), 11.0 percent of U.S. shipments of subject imports from France,

0.7 percent of U.S. shipments of subject imports from Germany, 1.2 percent of U.S. shipments of subject imports

from Italy, 1.8 percent of U.S. shipments of subject imports from Japan, and 0.1 percent of U.S. shipments of subject

imports from the United Kingdom.

 5

 Pricing data reported for nonsubject imports accounted for approximately 7.2 percent of U.S. shipments of ball

bearings imported from nonsubject countries.

III-2

Product 20: Two bearings matched by width, angular contact of 15 degrees, 17 mm bore, 35

mm OD, 10 mm width per bearing; ABEC 7 tolerance.

Data for domestic ball bearings and ball bearings imported from subject countries were obtained

from the final staff report in the Second Review investigations.3

 In those review investigations, eight U.S.

producers and 12 importers provided usable pricing data for sales of the requested products, although not

all firms reported pricing for all products for all quarters.4

 In this remand, questionnaires were sent to 58

importers; useable pricing data for sales of ball bearings from nonsubject countries were received from

seven firms.5

 Price data for domestic and imported ball bearings are presented in tables III-1 to III-10 and

in figures III-1 to III-10. Tables III-11 through III-15 present data on price comparisons.
Table III-1

Ball bearings: Weighted-average f.o.b. prices and quantities for sales of PRODUCT 11 to DISTRIBUTORS, as

reported by U.S. producers and importers, by quarters, January 2004-December 2005

* * * * * * *

Figure III-1

Ball bearings: Weighted-average f.o.b. prices and quantities for sales of PRODUCT 11 to DISTRIBUTORS, as

reported by U.S. producers and importers, by quarters, January 2004-December 2005

* * * * * * *

Table III-2

Ball bearings: Weighted-average f.o.b. prices and quantities for sales to of PRODUCT 11 to END USERS, as

reported by U.S. producers and importers, by quarters, January 2004-December 2005

* * * * * * *

Figure III-2

Ball bearings: Weighted-average f.o.b. prices and quantities for sales of PRODUCT 11 to END USERS, as

reported by U.S. producers and importers, by quarters, January 2004-December 2005

* * * * * * *

Table III-3

Ball bearings: Weighted-average f.o.b. prices and quantities for sales of PRODUCT 12 to DISTRIBUTORS, as

reported by U.S. producers and importers, by quarters, January 2004-December 2005

* * * * * * *

Figure III-3

Ball bearings: Weighted-average f.o.b. prices and quantities for sales of PRODUCT 12 to DISTRIBUTORS, as

reported by U.S. producers and importers, by quarters, January 2004-December 2005

* * * * * * *

Table III-4

Ball bearings: Weighted-average f.o.b. prices and quantities for sales of PRODUCT 12 to END USERS, as

reported by U.S. producers and importers, by quarters, January 2004-December 2005

* * * * * * *

Figure III-4

Ball bearings: Weighted-average f.o.b. prices and quantities for sales of PRODUCT 12 to END USERS, as

reported by U.S. producers and importers, by quarters, January 2004-December 2005

* * * * * * *

Table III-5

Ball bearings: Weighted-average f.o.b. prices and quantities for sales of PRODUCT 13 to DISTRIBUTORS, as

reported by U.S. producers and importers, by quarters, January 2004-December 2005

* * * * * * *

Figure III-5

Ball bearings: Weighted-average f.o.b. prices and quantities for sales of PRODUCT 13 to DISTRIBUTORS, as

reported by U.S. producers and importers, by quarters, January 2004-December 2005

* * * * * * *
III-4

Table III-6

Ball bearings: Weighted-average f.o.b. prices and quantities for sales of PRODUCT 14 to DISTRIBUTORS, as

reported by U.S. producers and importers, by quarters, January 2004-December 2005

* * * * * * *

Figure III-6

Ball bearings: Weighted-average f.o.b. prices and quantities for sales of PRODUCT 14 to DISTRIBUTORS, as

reported by U.S. producers and importers, by quarters, January 2004-December 2005

* * * * * * *

Table III-7

Ball bearings: Weighted-average f.o.b. prices and quantities for sales of PRODUCT 14 to END USERS, as

reported by U.S. producers and importers, by quarters, January 2004-December 2005

* * * * * * *

Figure III-7

Ball bearings: Weighted-average f.o.b. prices and quantities for sales of PRODUCT 14 to END USERS, as

reported by U.S. producers and importers, by quarters, January 2004-December 2005

* * * * * * *

Table III-8

Ball bearings: Weighted-average f.o.b. prices and quantities for sales of PRODUCT 15 to DISTRIBUTORS, as

reported by U.S. producers and importers, by quarters, January 2004-December 2005

* * * * * * *

Figure III-8

Ball bearings: Weighted-average f.o.b. prices and quantities for sales of PRODUCT 15 to DISTRIBUTORS, as

reported by U.S. producers and importers, by quarters, January 2004-December 2005

* * * * * * *

Table III-9

Ball bearings: Weighted-average f.o.b. prices and quantities for sales of PRODUCT 15 to END USERS, as

reported by U.S. producers and importers, by quarters, January 2004-December 2005

* * * * * * *

Figure II-9

Ball bearings: Weighted-average f.o.b. prices and quantities for sales of PRODUCT 15 to END USERS, as

reported by U.S. producers and importers, by quarters, January 2004-December 2005

* * * * * * *
III-5

Table III-10

Ball bearings: Weighted-average f.o.b. prices and quantities for sales of PRODUCT 18 to DISTRIBUTORS

and sales to END USERS, as reported by U.S. producers and importers, by quarters, January 2004-December

2005

* * * * * * *

Figure III-10

Ball bearings: Weighted-average f.o.b. prices and quantities for sales to DISTRIBUTORS and sales to END

USERS, as reported by U.S. producers and importers of product 18, by quarters, January 2004-December

2005

* * * * * * *

Table III-11

Ball bearings: Margins of underselling/(overselling) for sales of PRODUCT 11 to DISTRIBUTORS, as reported

by U.S. producers and importers, by quarters, January 2004-December 2005

* * * * * * *

Table III-12

Ball bearings: Margins of underselling/(overselling) for sales of PRODUCT 11 to END USERS, as reported by

U.S. producers and importers, by quarters, January 2004-December 2005

* * * * * * *

Table III-13

Ball bearings: Margins of underselling/(overselling) for sales of PRODUCT 12 to DISTRIBUTORS and to END 

USERS, as reported by U.S. producers and importers, by quarters, January 2004-December 2005

* * * * * * *

Table III-14

Ball bearings: Margins of underselling/(overselling) for sales of PRODUCTS 13, 15, and 18 to DISTRIBUTORS

and to END USERS, as reported by U.S. producers and importers, by quarters, January 2004-December 2005

* * * * * * *
Table III-15

Ball bearings: Summary of margins of underselling/(overselling)

Sales to Distributors Sales to Endusers 

Underselling Overselling Underselling Overselling Unde

Number

of

instances Range

Number

of

instances Range

Number

of

instances Range

Number

of

instances Range

Num

inst

U.S. vsNonsubject 23 4.1 to 77.0 21 1.1 to 485.7 39 1.9 to 55.2 11 6.9 to 41.9 Subject vs.Nonsubject 53 3.1 to 89.9 34 4.8 to 275.8 50 14.9 to 70.3 6 2.7 to 162.0 1Note: Margins for comparisons between U.S. prices and prices for nonsubject prices are relative to the U.S. prices; thus, underselling indicates that the prices 

were below those for domestic product and overselling numbers indicate that prices of nonsubject product were above those for domestic product. Margins fo

prices for subject product and prices for nonsubject product are relative to the subject import prices; thus, underselling indicates that the prices of nonsubject p

those for subject product and overselling indicates that prices of nonsubject product were above those for subject product. 

Source: Tables III-11 to III-14.
APPENDIX A

FEDERAL REGISTER NOTICES

Federal Register / Vol. 73, No. 203 / Monday, October 20, 2008 / Notices 62317 

retained by the person, of the authority 

which the information is sought and 

whether disclosure is mandatory or 

voluntary; of the principal purposes for 

which the information is intended to be 

used; of the routine uses which may be 

made of the information; and the effects 

on the person, if any, of not providing 

all or any part of the requested 

information. The application of this 

provision could provide the subject of 

an investigation with substantial 

information about the nature of that 

investigation, which could interfere 

with the investigation. Moreover, 

providing such information to the 

subject of an investigation could 

seriously impede or compromise an 

undercover investigation by revealing 

its existence and could endanger the 

physical safety of confidential sources, 

witnesses, and investigators by 

revealing their identities. 

(6) 5 U.S.C. 552a(e)(4)(I). The 

application of this section could 

disclose investigative techniques and 

procedures and cause sources to refrain 

from giving such information because of 

fear of reprisal, or fear of breach of 

promise(s) of anonymity and 

confidentiality. This could compromise 

Reclamation’s ability to conduct 

investigations and to identify, detect 

and apprehend violators. 

(7) 5 U.S.C. 552a(e)(5). This section 

requires an agency to maintain its 

records with such accuracy, relevance, 

timeliness, and completeness as is 

reasonably necessary to assure fairness 

to the individual in making any 

determination about the individual. In 

collecting information for criminal law 

enforcement purposes, it is not possible 

to determine in advance what 

information is accurate, relevant, timely, 

and complete. Material that may seem 

unrelated, irrelevant, or incomplete 

when collected may take on added 

meaning or significance as the 

investigation progresses. The 

restrictions of this provision could 

interfere with the preparation of a 

complete investigative report, thereby 

impeding effective law enforcement. 

(8) 5 U.S.C. 552a(e)(8). This section 

requires an agency to make reasonable 

efforts to serve notice on an individual 

when any record on the individual is 

made available to any person under 

compulsory legal process when that 

process becomes a matter of public 

record. Complying with this provision 

could prematurely reveal an ongoing 

criminal investigation to the subject of 

the investigation. 

[FR Doc. E8–24836 Filed 10–17–08; 8:45 am] 

BILLING CODE 4310–MN–P 

INTERNATIONAL TRADE 

COMMISSION 

[Investigation Nos. 731–TA–394–A & 399– 

A (Second Review) (Remand)] 

Ball Bearings From Japan and the 

United Kingdom 

AGENCY: United States International 

Trade Commission. 

ACTION: Notice of remand proceedings. 

SUMMARY: The U.S. International Trade 

Commission (‘‘Commission’’) hereby 

gives notice of the court-ordered remand 

of its affirmative determinations in the 

five-year reviews of the antidumping 

orders on ball bearings from Japan and 

the United Kingdom. For further 

information concerning the conduct of 

this proceeding and rules of general 

application, consult the Commission’s 

Rules of Practice and Procedure, part 

201, subparts A through E (19 CFR part 

201), and part 207, subpart A (19 CFR 

part 207). 

DATES: Effective Date: October 8, 2008. 

FOR FURTHER INFORMATION CONTACT: 

Russell Duncan, Office of Investigations, 

telephone 202–708–4727, or David 

Goldfine, Office of General Counsel, 

telephone 202–708–5452, U.S. 

International Trade Commission, 500 E 

Street, SW., Washington, DC 20436. 

Hearing-impaired persons can obtain 

information on this matter by contacting 

the Commission’s TDD terminal on 202– 

205–1810. Persons with mobility 

impairments who will need special 

assistance in gaining access to the 

Commission should contact the Office 

of the Secretary at 202–205–2000. 

General information concerning the 

Commission may also be obtained by 

accessing its Internet server (http:// 

www.usitc.gov). The public record of 

investigation Nos. 731–TA–340 E & H 

may be viewed on the Commission’s 

electronic docket (‘‘EDIS’’) at http:// 

edis.usitc.gov. 

SUPPLEMENTARY INFORMATION: 

Background.—In June 2006, the 

Commission determined that revocation 

of the antidumping duty orders on ball 

bearings from France, Germany, Italy, 

Japan, and the United Kingdom would 

be likely to lead to continuation or 

recurrence of material injury to an 

industry in the United States within a 

reasonably foreseeable time. The 

Commission’s determinations for Japan 

and the United Kingdom were appealed 

to the Court of International Trade. On 

September 9, 2008, the Court issued a 

decision remanding the matter to the 

Commission for further proceedings. 

NSK v. United States, Slip Op. 08–95 

(Ct. Int’l Trade, Sept. 9, 2008). In its 

opinion, the Court issued an order 

instructing the Commission to (1) 

‘‘conduct a Bratsk analysis of nonsubject imports as outlined in this 

opinion;’’(2) ‘‘reassess supply 

conditions within the domestic 

industry,’’ i.e., the industry’s 

restructuring efforts during the period of 

review, and (3) ‘‘reexamine its findings 

with regard to likely impact and its 

decision to cumulate imports from the 

United Kingdom in light of changes in 

its determinations that may result as a 

consequence of the foregoing remand 

instructions.’’ 

Participation in the proceeding.— 

Only those persons who were interested 

parties to the reviews (i.e., persons 

listed on the Commission Secretary’s 

service list) and parties to the appeal 

may participate in the remand 

proceeding. Such persons need not 

make any additional filings with the 

Commission to participate in the 

remand proceeding. Business 

proprietary information (‘‘BPI’’) referred 

to during the remand proceeding will be 

governed, as appropriate, by the 

administrative protective order issued 

in the reviews. 

Written submissions.—The 

Commission is re-opening the record in 

this proceeding to obtain information to 

conduct a Bratsk analysis of non-subject 

imports as outlined in the Court’s 

opinion. The Commission will permit 

the parties to file comments pertaining 

to the specific issues that are the subject 

of the Court’s remand instructions and, 

in this regard, may comment on the new 

information obtained on remand. 

Comments should be limited to no more 

than fifteen (15) double-spaced and 

single-sided pages of textual material. 

The parties may not themselves submit 

any new factual information in their 

comments and may not address any 

issue other than those that are the 

subject of the Court’s remand 

instructions. Any such comments must 

be filed with the Commission no later 

than November 28, 2008. 

All written submissions must conform 

with the provisions of section 201.8 of 

the Commission’s rules; any 

submissions that contain BPI must also 

conform with the requirements of 

sections 201.6, 207.3, and 207.7 of the 

Commission’s rules. The Commission’s 

rules do not authorize filing of 

submissions with the Secretary by 

facsimile or electronic means, except to 

the extent permitted by section 201.8 of 

the Commission’s rules, as amended, 67 

FR 68036 (Nov. 8, 2002). 

In accordance with sections 201.16(c) 

and 207.3 of the Commission’s rules, 

each document filed by a party to the 

investigation must be served on all other 

mstockstill on PROD1PC66 with NOTICES

62318 Federal Register / Vol. 73, No. 203 / Monday, October 20, 2008 / Notices 

1A record of the Commissioners’ votes, the 

Commission’s statement on adequacy, and any 

individual Commissioner’s statements will be 

available from the Office of the Secretary and at the 

Commission’s Web site. 

2The Commission has found the responses 

submitted by the Crawfish Processors Alliance to be 

individually adequate. Comments from other 

interested parties will not be accepted (see 19 CFR 

207.62(d)(2)).

parties to the investigation (as identified 

by either the public or BPI service list), 

and a certificate of service must be 

timely filed. The Secretary will not 

accept a document for filing without a 

certificate of service. 

Parties are also advised to consult 

with the Commission’s Rules of Practice 

and Procedure, part 201, subparts A 

through E (19 CFR part 201), and part 

207, subpart A (19 CFR part 207) for 

provisions of general applicability 

concerning written submissions to the 

Commission. 

By order of the Commission. 

Issued: October 14, 2008 

Marilyn R. Abbott, 

Secretary to the Commission. 

[FR Doc. E8–24890 Filed 10–17–08; 8:45 am] 

BILLING CODE 7020–02–P 

SUMMARY: The Commission hereby gives 

notice that it will proceed with a full 

review pursuant to section 751(c)(5) of 

the Tariff Act of 1930 (19 U.S.C. 

1675(c)(5)) to determine whether 

revocation of the antidumping duty 

order on certain frozen fish fillets from 

Vietnam would be likely to lead to 

continuation or recurrence of material 

injury within a reasonably foreseeable 

time. A schedule for the review will be 

established and announced at a later 

date. For further information concerning 

the conduct of this review and rules of 

general application, consult the 

Commission’s Rules of Practice and 

Procedure, part 201, subparts A through 

E (19 CFR part 201), and part 207, 

subparts A, D, E, and F (19 CFR part 

207). 

DATES: Effective Date: October 6, 2008. 

FOR FURTHER INFORMATION CONTACT: 

Mary Messer (202–205–3193), Office of 

Investigations, U.S. International Trade 

Commission, 500 E Street, SW., 

Washington, DC 20436. Hearingimpaired persons can obtain 

information on this matter by contacting 

the Commission’s TDD terminal on 202– 

205–1810. Persons with mobility 

impairments who will need special 

assistance in gaining access to the 

Commission should contact the Office 

of the Secretary at 202–205–2000. 

General information concerning the 

Commission may also be obtained by 

accessing its Internet server (http:// 

www.usitc.gov). The public record for 

this review may be viewed on the 

Commission’s electronic docket (EDIS) 

at http://edis.usitc.gov. 

SUPPLEMENTARY INFORMATION: On 

October 6, 2008, the Commission 

determined that it should proceed to a 

full review in the subject five-year 

review pursuant to section 751(c)(5) of 

the Act. The Commission found that 

both the domestic and respondent 

interested party group responses to its 

notice of institution (73 FR 37487, July 

1, 2008) were adequate. A record of the 

Commissioners’ votes, the 

Commission’s statement on adequacy, 

and any individual Commissioner’s 

statements will be available from the 

Office of the Secretary and at the 

Commission’s Web site. 

Authority: This review is being conducted 

under authority of title VII of the Tariff Act 

of 1930; this notice is published pursuant to 

section 207.62 of the Commission’s rules. 

By order of the Commission. 

Issued: October 14, 2008. 

Marilyn R. Abbott, 

Secretary to the Commission. 

[FR Doc. E8–24894 Filed 10–17–08; 8:45 am] 

BILLING CODE 7020–02–P 
72836 Federal Register / Vol. 73, No. 231 / Monday, December 1, 2008 / Notices 

association, or another interested party 

(including an explanation). If you are a 

union/worker group or trade/business 

association, identify the firms in which 

your workers are employed or which are 

members of your association. 

(3) A statement indicating whether 

your firm/entity is willing to participate 

in these reviews by providing 

information requested by the 

Commission. 

(4) A statement of the likely effects of 

the revocation of the antidumping and 

countervailing duty orders on the 

Domestic Industry in general and/or 

your firm/entity specifically. In your 

response, please discuss the various 

factors specified in section 752(a) of the 

Act (19 U.S.C. 1675a(a)) including the 

likely volume of subject imports, likely 

price effects of subject imports, and 

likely impact of imports of Subject 

Merchandise on the Domestic Industry. 

(5) A list of all known and currently 

operating U.S. producers of the 

Domestic Like Product. Identify any 

known related parties and the nature of 

the relationship as defined in section 

771(4)(B) of the Act (19 U.S.C. 

1677(4)(B)). 

(6) A list of all known and currently 

operating U.S. importers of the Subject 

Merchandise and producers of the 

Subject Merchandise in each Subject 

Country that currently export or have 

exported Subject Merchandise to the 

United States or other countries after 

2002. 

(7) If you are a U.S. producer of the 

Domestic Like Product, provide the 

following information on your firm’s 

operations on that product during 

calendar year 2007 (report quantity data 

in pounds and value data in U.S. 

dollars, f.o.b. plant). If you are a union/ 

worker group or trade/business 

association, provide the information, on 

an aggregate basis, for the firms in 

which your workers are employed/ 

which are members of your association. 

(a) Production (quantity) and, if 

known, an estimate of the percentage of 

total U.S. production of the Domestic 

Like Product accounted for by your 

firm’s(s’) production; 

(b) The quantity and value of U.S. 

commercial shipments of the Domestic 

Like Product produced in your U.S. 

plant(s); and 

(c) The quantity and value of U.S. 

internal consumption/company 

transfers of the Domestic Like Product 

produced in your U.S. plant(s). 

(8) If you are a U.S. importer or a 

trade/business association of U.S. 

importers of the Subject Merchandise 

from the Subject Country(ies), provide 

the following information on your 

firm’s(s’) operations on that product 

during calendar year 2007 (report 

quantity data in pounds and value data 

in U.S. dollars). If you are a trade/ 

business association, provide the 

information, on an aggregate basis, for 

the firms which are members of your 

association. 

(a) The quantity and value (landed, 

duty-paid but not including 

antidumping or countervailing duties) 

of U.S. imports and, if known, an 

estimate of the percentage of total U.S. 

imports of Subject Merchandise from 

each Subject Country accounted for by 

your firm’s(s’) imports; 

(b) The quantity and value (f.o.b. U.S. 

port, including antidumping and/or 

countervailing duties) of U.S. 

commercial shipments of Subject 

Merchandise imported from each 

Subject Country; and 

(c) The quantity and value (f.o.b. U.S. 

port, including antidumping and/or 

countervailing duties) of U.S. internal 

consumption/company transfers of 

Subject Merchandise imported from 

each Subject Country. 

(9) If you are a producer, an exporter, 

or a trade/business association of 

producers or exporters of the Subject 

Merchandise in the Subject 

Country(ies), provide the following 

information on your firm’s(s’) 

operations on that product during 

calendar year 2007 (report quantity data 

in pounds and value data in U.S. 

dollars, landed and duty-paid at the 

U.S. port but not including antidumping 

or countervailing duties). If you are a 

trade/business association, provide the 

information, on an aggregate basis, for 

the firms which are members of your 

association. 

(a) Production (quantity) and, if 

known, an estimate of the percentage of 

total production of Subject Merchandise 

in each Subject Country accounted for 

by your firm’s(s’) production; and 

(b) The quantity and value of your 

firm’s(s’) exports to the United States of 

Subject Merchandise and, if known, an 

estimate of the percentage of total 

exports to the United States of Subject 

Merchandise from each Subject Country 

accounted for by your firm’s(s’) exports. 

(10) Identify significant changes, if 

any, in the supply and demand 

conditions or business cycle for the 

Domestic Like Product that have 

occurred in the United States or in the 

market for the Subject Merchandise in 

each Subject Country after 2002, and 

significant changes, if any, that are 

likely to occur within a reasonably 

foreseeable time. Supply conditions to 

consider include technology; 

production methods; development 

efforts; ability to increase production 

(including the shift of production 

facilities used for other products and the 

use, cost, or availability of major inputs 

into production); and factors related to 

the ability to shift supply among 

different national markets (including 

barriers to importation in foreign 

markets or changes in market demand 

abroad). Demand conditions to consider 

include end uses and applications; the 

existence and availability of substitute 

products; and the level of competition 

among the Domestic Like Product 

produced in the United States, Subject 

Merchandise produced in each Subject 

Country, and such merchandise from 

other countries. 

(11) (Optional) A statement of 

whether you agree with the above 

definitions of the Domestic Like Product 

and Domestic Industry; if you disagree 

with either or both of these definitions, 

please explain why and provide 

alternative definitions. 

Authority: These reviews are being 

conducted under authority of title VII of the 

Tariff Act of 1930; this notice is published 

pursuant to section 207.61 of the 

Commission’s rules. 

By order of the Commission. 

Issued: November 25, 2008. 

William R. Bishop, 

Acting Secretary to the Commission. 

[FR Doc. E8–28409 Filed 11–28–08; 8:45 am] 

BILLING CODE 7020–02–P 

INTERNATIONAL TRADE 

COMMISSION 

[Investigation Nos. 731–TA–394–A & 399– 

A (Second Review) (Remand)] 

Ball Bearings From Japan and the 

United Kingdom 

AGENCY: United States International 

Trade Commission. 

ACTION: Notice of stay of remand 

proceedings. 

SUMMARY: The U.S. International Trade 

Commission (‘‘Commission’’) hereby 

gives notice of the stay of its remand 

proceedings in the Commission’s fiveyear reviews of the antidumping duty 

orders on ball bearings from Japan and 

the United Kingdom. 

DATES: Effective Date: November 24, 

2008. 

FOR FURTHER INFORMATION CONTACT: 

Russell Duncan, Office of Investigations, 

telephone 202–708–4727, or David 

Goldfine, Office of General Counsel, 

telephone 202–708–5452, U.S. 

International Trade Commission, 500 E 

Street, SW., Washington, DC 20436. 

Hearing-impaired persons can obtain 

information on this matter by contacting 

the Commission’s TDD terminal on 202– 


rwilkins on PROD1PC63 with NOTICES
Federal Register / Vol. 73, No. 231 / Monday, December 1, 2008 / Notices 72837 

1The record is defined in § 207.2(f) of the 

Commission’s Rules of Practice and Procedure (19 

CFR 207.2(f)). 

205–1810. Persons with mobility 

impairments who will need special 

assistance in gaining access to the 

Commission should contact the Office 

of the Secretary at 202–205–2000. 

General information concerning the 

Commission may also be obtained by 

accessing its Internet server (http:// 

www.usitc.gov). The public record of 

investigation Nos. 731–TA–394–A & 

399–A may be viewed on the 

Commission’s electronic docket 

(‘‘EDIS’’) at http://edis.usitc.gov. 

SUPPLEMENTARY INFORMATION: 

Background.—In June 2006, the 

Commission determined that revocation 

of the antidumping duty orders on ball 

bearings from France, Germany, Italy, 

Japan, and the United Kingdom would 

be likely to lead to continuation or 

recurrence of material injury to an 

industry in the United States within a 

reasonable foreseeable time. The 

Commission’s determinations for Japan 

and the United Kingdom were appealed 

to the Court of International Trade. On 

September 9, 2008, the Court issued a 

decision remanding the matter to the 

Commission for further proceedings. 

NSK v. United States, Slip Op. 08–95 

(Ct. Int’l Trade, Sept. 9, 2008). In its 

opinion, the Court issued an order 

instructing the Commission to (1) 

‘‘conduct a Bratsk analysis of nonsubject imports as outlined in this 

opinion;’’(2) ‘‘reassess supply 

conditions within the domestic 

industry,’’ i.e., the industry’s 

restructuring efforts during the period of 

review, and (3) ‘‘reexamine its findings 

with regard to likely impact and its 

decision to cumulate imports from the 

United Kingdom in light of changes in 

its determinations that may result as a 

consequence of the foregoing remand 

instructions.’’ The Commission initiated 

its remand proceeding on October 8, 

2008. 

On September 18, 2008, the U.S. 

Court of Appeals for the Federal Circuit 

issued its opinion in Mittal Steel Point 

Lisas, Ltd. v. United States (Ct. No. 

2007–1552), which clarified and limited 

its holding in Bratsk Aluminium 

Smelter v. United States, 444 F.3d 1369 

(Fed. Cir. 2006). On October 9, 2008, the 

Commission filed a motion for 

reconsideration with the Court of 

International Trade (‘‘CIT’’), requesting 

that the CIT reconsider its decision in 

light of the Federal Circuit’s analysis in 

Mittal. As part of that motion, the 

Commission also requested the CIT to 

issue a stay of its remand proceeding 

pending the Court’s disposition of the 

motion for reconsideration. DefendantIntervenor The Timken Company 

(‘‘Timken’’) filed a similar motion for 

reconsideration and a motion to stay the 

remand proceeding. 

On October 29, 2008, the CIT granted 

the motions of the Commission and 

Timken and ordered a stay of the 

Commission’s remand proceeding. In 

that Order, the CIT also directed that the 

stay shall remain in effect until the 

Court has ruled on the pending motions 

for reconsideration. 

Accordingly, the remand proceedings 

in this matter are hereby stayed pending 

further order. 

By order of the Commission. 

Issued: November 24, 2008. 

William R. Bishop, 

Acting Secretary to the Commission. 

[FR Doc. E8–28392 Filed 11–28–08; 8:45 am] 

BILLING CODE 7020–02–P 

INTERNATIONAL TRADE 

COMMISSION 

[Investigation Nos. 731–TA–986 and 987 

(Review)] 

Ferrovanadium From China and South 

Africa 

Determinations 

On the basis of the record 1 developed 

in the subject five-year reviews, the 

United States International Trade 

Commission (Commission) determines, 

pursuant to section 751(c) of the Tariff 

Act of 1930 (19 U.S.C. 1675(c)), that 

revocation of the antidumping duty 

orders on ferrovanadium from China 

and South Africa would be likely to lead 

to continuation or recurrence of material 

injury to an industry in the United 

States within a reasonably foreseeable 

time. 

Background 

The Commission instituted these 

reviews on December 3, 2007 (72 FR 

67962) and determined on March 7, 

2008 that it would conduct full reviews 

(73 FR 14484, March 18, 2008). Notice 

of the scheduling of the Commission’s 

reviews and of a public hearing to be 

held in connection therewith was given 

by posting copies of the notice in the 

Office of the Secretary, U.S. 

International Trade Commission, 

Washington, DC, and by publishing the 

notice in the Federal Register on July 8, 

2008 (73 FR 39040). The hearing was 

held in Washington, DC, on October 7, 

2008, and all persons who requested the 

opportunity were permitted to appear in 

person or by counsel. 

The Commission transmitted its 

determinations in these reviews to the 

Secretary of Commerce on November 

24, 2008. 

The views of the Commission are 

contained in USITC Publication 4046 

(November 2008), entitled 

Ferrovanadium from China and South 

Africa: Investigation Nos. 731–TA–986– 

987 (Review). 

By order of the Commission. 

Issued: November 24, 2008. 

William R. Bishop, 

Acting Secretary to the Commission. 

[FR Doc. E8–28393 Filed 11–28–08; 8:45 am] 

BILLING CODE 7020–02–P 

SUMMARY: The Commission hereby gives 

notice of the scheduling of a full review 

pursuant to section 751(c)(5) of the 

Tariff Act of 1930 (19 U.S.C. 1675(c)(5)) 

(the Act) to determine whether 

revocation of the antidumping duty 

order on saccharin from China would be 

likely to lead to continuation or 

recurrence of material injury within a 

reasonably foreseeable time. For further 

information concerning the conduct of 

this review and rules of general 

application, consult the Commission’s 

Rules of Practice and Procedure, part 

201, subparts A through E (19 CFR part 

201), and part 207, subparts A, D, E, and 

F (19 CFR part 207). 

DATES: Effective Date: November 24, 

2008. 

FOR FURTHER INFORMATION CONTACT: 

Cynthia Trainor (202–205–3354), Office 

of Investigations, U.S. International 

Trade Commission, 500 E Street, SW., 

Washington, DC 20436. Hearingimpaired persons can obtain 

information on this matter by contacting 

the Commission’s TDD terminal on 202– 

205–1810. Persons with mobility 

impairments who will need special 

assistance in gaining access to the 

Commission should contact the Office 

of the Secretary at 202–205–2000. 

General information concerning the 

Commission may also be obtained by 

accessing its Internet server (http:// 

www.usitc.gov) . The public record for 

this review may be viewed on the 

Commission’s electronic docket (EDIS) 

at http://edis.usitc.gov. 

SUPPLEMENTARY INFORMATION:


rwilkins on PROD1PC63 with NOTICES
Federal Register / Vol. 74, No. 23 / Thursday, February 5, 2009 / Notices 6173 

final ID. On January 5, 2009, 

respondents filed a motion for leave to 

file a reply in support of their petition 

for review of the final ID. On January 9, 

2009, complainants filed an opposition 

to respondents’ motion. On January 15, 

2009, the IA also filed an opposition to 

respondents’ motion. 

Having examined the record of this 

investigation, including the ALJ’s ID 

and the submissions of the parties, the 

Commission has determined to review 

the ALJ’s determination regarding the 

effective filing date of claim 1 of the 

‘276 patent and to affirm his 

determination with additional 

reasoning. In addition, the Commission 

has determined to review the ALJ’s ID 

with regard to whether claim 1 of the 

‘276 patent is invalid for anticipation or 

obviousness with respect to certain 

references and to issue an order 

remanding the investigation to the ALJ 

for further proceedings related to 

anticipation and obviousness with 

respect to those references. The 

Commission has determined not to 

review any other determination in the 

ALJ’s ID. 

To accommodate the remand 

proceedings, the Commission has 

extended the target date of the abovecaptioned investigation to June 1, 2009, 

and instructed the ALJ to make his 

determination on remand by April 1, 

2009. The parties are invited to file 

written submissions on the ALJ’s 

remand determination within fourteen 

days after service of the ALJ’s 

determination and to file responses to 

the written submissions within seven 

days after service of the written 

submissions. The parties should also 

address remedy, the public interest, and 

bonding in their submissions. Finally, 

the Commission has determined to deny 

respondents’ motion for leave to file a 

reply in support of their petition for 

review of the final ID. 

In connection with the final 

disposition of this investigation, the 

Commission may (1) issue an order that 

could result in the exclusion of the 

subject articles from entry into the 

United States, and/or (2) issue one or 

more cease and desist orders that could 

result in the respondent being required 

to cease and desist from engaging in 

unfair acts in the importation and sale 

of such articles. Accordingly, the 

Commission is interested in receiving 

written submissions that address the 

form of remedy, if any, that should be 

ordered. If a party seeks exclusion of an 

article from entry into the United States 

for purposes other than entry for 

consumption, the party should so 

indicate and provide information 

establishing that activities involving 

other types of entry either are adversely 

affecting it or likely to do so. For 

background, see In the Matter of Certain 

Devices for Connecting Computers via 

Telephone Lines, Inv. No. 337–TA–360, 

USITC Pub. No. 2843 (December 1994) 

(Commission Opinion). 

If the Commission contemplates some 

form of remedy, it must consider the 

effects of that remedy upon the public 

interest. The factors the Commission 

will consider include the effect that an 

exclusion order and/or cease and desist 

orders would have on (1) the public 

health and welfare, (2) competitive 

conditions in the U.S. economy, (3) U.S. 

production of articles that are like or 

directly competitive with those that are 

subject to investigation, and (4) U.S. 

consumers. The Commission is 

therefore interested in receiving written 

submissions that address the 

aforementioned public interest factors 

in the context of this investigation. 

If the Commission orders some form 

of remedy, the U.S. Trade 

Representative, as delegated by the 

President, has 60 days to approve or 

disapprove the Commission’s action. 

See Presidential Memorandum of July 

21, 2005, 70 FR 43251 (July 26, 2005). 

During this period, the subject articles 

would be entitled to enter the United 

States under bond, in an amount 

determined by the Commission and 

prescribed by the Secretary of the 

Treasury. The Commission is therefore 

interested in receiving submissions 

concerning the amount of the bond that 

should be imposed if a remedy is 

ordered. 

Written Submissions: The parties to 

the investigation are requested to file 

written submissions on the issues 

identified in this notice. Parties to the 

investigation, interested government 

agencies, and any other interested 

parties are encouraged to file written 

submissions on the issues of remedy, 

the public interest, and bonding. Such 

submissions should address the 

recommended determination by the ALJ 

on remedy and bonding. Complainants 

and the Commission investigative 

attorney are also requested to submit 

proposed remedial orders for the 

Commission’s consideration. 

Complainants are also requested to state 

the dates that the patents expire and the 

HTSUS numbers under which the 

accused products are imported. The 

written submissions and proposed 

remedial orders must be filed no later 

than the close of business fourteen days 

after service of the ALJ’s remand 

determination. Reply submissions must 

be filed no later than the close of 

business seven days after service of the 

written submissions. The written 

submissions may be no longer than 50 

pages and the reply submissions may be 

no longer than 25 pages. No further 

submissions on these issues will be 

permitted unless otherwise ordered by 

the Commission. 

Persons filing written submissions 

must file the original document and 12 

true copies thereof on or before the 

deadlines stated above with the Office 

of the Secretary. Any person desiring to 

submit a document to the Commission 

in confidence must request confidential 

treatment unless the information has 

already been granted such treatment 

during the proceedings. All such 

requests should be directed to the 

Secretary of the Commission and must 

include a full statement of the reasons 

why the Commission should grant such 

treatment. See 19 CFR 210.6. Documents 

for which confidential treatment by the 

Commission is sought will be treated 

accordingly. All nonconfidential written 

submissions will be available for public 

inspection at the Office of the Secretary. 

The authority for the Commission’s 

determination is contained in section 

337 of the Tariff Act of 1930, as 

amended (19 U.S.C. 1337), and in 

sections 210.42–46 of the Commission’s 

Rules of Practice and Procedure (19 CFR 

210.42–46). 

Issued: January 30, 2009. 

By order of the Commission. 

Marilyn R. Abbott, 

Secretary to the Commission. 

[FR Doc. E9–2426 Filed 2–4–09; 8:45 am] 

BILLING CODE 7020–02–P

INTERNATIONAL TRADE 

COMMISSION 

[Investigation Nos. 731–TA–394–A & 399– 

A (Second Review) (Remand)] 

Ball Bearings From Japan and the 

United Kingdom 

AGENCY: United States International 

Trade Commission. 

ACTION: Notice of remand proceedings. 

SUMMARY: The U.S. International Trade 

Commission (‘‘Commission’’) hereby 

gives notice of the resumption of its 

remand proceedings with respect to its 

affirmative determinations in the fiveyear reviews of the antidumping duty 

orders on ball bearings from Japan and 

the United Kingdom. For further 

information concerning the conduct of 

this proceeding and rules of general 

application, consult the Commission’s 

Rules of Practice and Procedure, part 

201, subparts A through E (19 CFR part 

201), and part 207, subpart A (19 CFR 

part 207). 


rwilkins on PROD1PC63 with NOTICES
6174 Federal Register / Vol. 74, No. 23 / Thursday, February 5, 2009 / Notices 

DATES: Effective Date: January 30, 2009. 

FOR FURTHER INFORMATION CONTACT: Jim 

McClure, Office of Investigations, 

telephone 202–205–3191, or David 

Goldfine, Office of General Counsel, 

telephone 202–708–5452, U.S. 

International Trade Commission, 500 E 

Street, SW., Washington, DC 20436. 

Hearing-impaired persons can obtain 

information on this matter by contacting 

the Commission’s TDD terminal on 202– 

205–1810. Persons with mobility 

impairments who will need special 

assistance in gaining access to the 

Commission should contact the Office 

of the Secretary at 202–205–2000. 

General information concerning the 

Commission may also be obtained by 

accessing its internet server (http:// 

www.usitc.gov). 

SUPPLEMENTARY INFORMATION: 

Background. In June 2006, the 

Commission determined that revocation 

of the antidumping duty orders on ball 

bearings from France, Germany, Italy, 

Japan, and the United Kingdom would 

be likely to lead to continuation or 

recurrence of material injury to an 

industry in the United States within a 

reasonably foreseeable time. The 

Commission’s determinations for Japan 

and the United Kingdom were appealed 

to the Court of International Trade (the 

‘‘Court’’). On September 9, 2008, the 

Court issued a decision remanding the 

matter to the Commission for further 

proceedings. NSK v. United States, Slip 

Op. 08–95 (Ct. Int’l Trade, Sept. 9, 

2008). In its opinion, the Court issued 

an order instructing the Commission to 

(1) ‘‘conduct a Bratsk analysis of nonsubject imports as outlined in this 

opinion;’’ (2) ‘‘reassess supply 

conditions within the domestic 

industry,’’ i.e., the industry’s 

restructuring efforts during the period of 

review, and (3) ‘‘reexamine its findings 

with regard to likely impact and its 

decision to cumulate imports from the 

United Kingdom in light of changes in 

its determinations that may result as a 

consequence of the foregoing remand 

instructions.’’ 

On October 8, 2008, in accordance 

with the Court’s order, the Commission 

initiated remand proceedings in the 

above-captioned reviews. The notice of 

initiation for the remand proceeding 

was published in the Federal Register at 

73 FR 63217 (Oct. 20, 2008). The 

Commission noted that it was reopening the record to obtain 

information to conduct an analysis of 

non-subject imports as outlined in the 

Court’s opinion. The Commission also 

noted that it was permitting parties to 

file comments pertaining to the specific 

issues that are the subject of the Court’s 

remand instructions and to comment on 

the new information obtained on 

remand. Id. 

On October 9, 2008, the Commission 

filed a motion for reconsideration with 

the Court. In the motion, the 

Commission requested that the Court 

reconsider its decision in light of the 

Federal Circuit’s decision, Mittal Steel 

Point Lisas Limited v. United States, 

Court No. 2007–1552 (September 18, 

2008) (‘‘Mittal’’). In its motion, the 

Commission also requested that the 

Court issue a stay of the remand 

proceeding pending the Court’s 

disposition of the Commission’s motion 

for reconsideration. DefendantIntervenor The Timken Company 

(‘‘Timken’’) filed a similar motion for 

reconsideration and a motion to stay the 

remand proceeding. 

On October 29, 2008, the Court 

granted the requests of the Commission 

and Timken to stay the Commission’s 

remand proceeding pending its 

reconsideration of the Commission’s 

and Timken’s motions for 

reconsideration. Accordingly, the 

Commission stayed its remand 

proceeding on November 17, 2008 

pending the Court’s ruling on the 

motions for reconsideration. 

On December 29, 2008, the Court 

denied the motions for reconsideration 

by the Commission and Timken. The 

Court has ordered the Commission to 

file its remand determination with the 

Court by May 4, 2009. Accordingly, the 

Commission is hereby resuming the 

remand proceeding in this review and 

announcing an amended schedule for 

the proceeding, as set forth herein. 

Participation in the proceeding. Only 

those persons who were interested 

parties to the reviews (i.e., persons 

listed on the Commission Secretary’s 

service list) and parties to the appeal 

may participate in the remand 

proceeding. Such persons need not 

make any additional filings with the 

Commission to participate in the 

remand proceeding. Business 

proprietary information (‘‘BPI’’) referred 

to during the remand proceeding will be 

governed, as appropriate, by the 

administrative protective order issued 

in the reviews. 

Written submissions. The Commission 

is re-opening the record in this 

proceeding to obtain information to 

conduct an analysis of non-subject 

imports as outlined in the Court’s 

opinion. The Commission will permit 

the parties to file comments pertaining 

to the specific issues that are the subject 

of the Court’s remand instructions and, 

in this regard, may comment on the new 

information obtained on remand. 

Comments should be limited to no more 

than fifteen (15) double-spaced and 

single-sided pages of textual material. 

The parties may not themselves submit 

any new factual information in their 

comments and may not address any 

issue other than those that are the 

subject of the Court’s remand 

instructions. Any such comments must 

be filed with the Commission no later 

than March 23, 2009. 

All written submissions must conform 

with the provisions of section 201.8 of 

the Commission’s rules; any 

submissions that contain BPI must also 

conform with the requirements of 

sections 201.6, 207.3, and 207.7 of the 

Commission’s rules. The Commission’s 

rules do not authorize filing of 

submissions with the Secretary by 

facsimile or electronic means, except to 

the extent permitted by section 201.8 of 

the Commission’s rules, as amended, 67 

FR 68036 (Nov. 8, 2002). 

In accordance with sections 201.16(c) 

and 207.3 of the Commission’s rules, 

each document filed by a party to the 

remand proceeding must be served on 

all other parties to the remand 

proceeding (as identified by either the 

public or BPI service list), and a 

certificate of service must be timely 

filed. The Secretary will not accept a 

document for filing without a certificate 

of service. 

Parties are also advised to consult the 

Commission’s Rules of Practice and 

Procedure, part 201, subparts A through 

E (19 CFR part 201), and part 207, 

subpart A (19 CFR part 207) for 

provisions of general applicability 

concerning written submissions to the 

Commission. 

Issued: January 30, 2009. 

By order of the Commission. 

Marilyn R. Abbott, 

Secretary to the Commission. 

[FR Doc. E9–2402 Filed 2–4–09; 8:45 am] 

BILLING CODE 7020–02–P 


rwilkins on PROD1PC63 with NOTICES