Slip Op. 10-133 UNITED STAT ES COURT OF INTERNATIONAL TRADE

--- --- --- --- --- --- --- --- --- --- --- --- --- --- --- --- --- --- x : NSK CORPORATI ON, et al. , : : Plaintiffs, : : and : : FAGI TAL IA S.p.A., et al. , : : Plaintiff-Interve nors, : : Before: Judith M. Barzilay, Jud ge v. : Consol. Court No. 06-00334 : UNI TED STATES, : : Def endant, : : and : : THE TI MKEN COMPANY, : : Def endant- Interve nor. : :

--- --- --- --- --- --- --- --- --- --- --- --- --- --- --- --- --- --- x OP INION & ORDER [The court sustains in part and r emands in par t the third remand de termination of the U.S. International Trade Commi ssion.]

Dated: De cembe r 9, 2010

Crowell & Moring LLP

( Matthew P. Jaffe , Robert A. Lipstein , and Carrie F. Fletcher), for Plaintiffs NSK Corporation, NSK L td., and NSK Europe L td.Consol. Court No. 06-00334 P age 2

Sidley Austin LLP

( Neil R. Ellis and Jill Caiazz o ), for Plaintiffs JTEKT Corporation and Koyo Corporation of U.S.A. Grunfeld, Desiderio, Lebowitz, Silverman &Klestadt, L LP ( Max F. Sc hutzman and Andrew T. Schutz ), for

Plaintiff-Interve nors FA G Italia S.p.A., Schaef fler G roup USA, Inc., Schae ffler KG, The B arde n Corporation (U.K .) Ltd., and The B arde n Corporation. Steptoe &Johnson (

Herbe rt C. Shelley

and Alice A. Kipel), for Plaintiff-Interve nors SKF Aer oeng ine B ear ings U K and SKF USA, Inc. United States International Trade Commission , Jame s M. Lyons (Ge nera l Counsel), Neal J. Rey nolds (Assistant Gene ral Counsel for L itigation), a

nd David A.J. Goldfine , Offic e of the Gene ral Counsel, for

Def endant United States. Stewart and Stewart

( TerenceP. Stewart , Eric P. Salonen , Philip A. Butler , and Jumana Madanat Misleh ), for

Def endant- Interve nor The T imken Company

. Ba rzilay , J udg e: The U .S. I nternational Trade Commi ssion’s (“the Commission”) sunset revie w of a

ntidumping duty

order s covering ba ll bearing s from F ranc e, Ge rmany , I taly , J apan, and the United K ingdom c omes befor e the c ourt for the fifth time. See NSK Corp. v. United 1 States , 34 CI T ___, 712 F. Supp. 2d 1356 (2010) (“ NSK IV ”) ( aff irming in pa

rt and re mandingin part sec ond rema

nd deter mination); NSK Corp. v. United States , 33 CI T ___, 637 F. Supp. 2d 1311 (2009) ( “

NSK III ”) ( rema nding f irst remand de termination for a g ency ’s fa ilure to provide substantial evidence and fa ilure to comply with court’s re mand instructions); NSK Corp. v. United States , 32 CI T ___, 593 F. Supp. 2d 1355 (2008) (“ NSK II ”) ( denying motion for rehe aring ); NSK Corp. v. United States , 32 CI T ___, 577 F. Supp. 2d 1322 (2008) (“ NSK I ”) (af firmingin part and r emandingin part sec ond sunset revie w). In its thi rd re mand deter mination now at issue, the a g ency

addre sses three questions: (1) whethe r some ince ntive likely would

The c ourt presume s familiarity with the proce dural history of the c ase. 1Consol. Court No. 06-00334 P age 3

draw a disce rnible amount of United K ingdom ba ll bearing s specific ally to the United States in the abse nce of

the antidumping duty

order , there by

supporting the Commi ssion’s decision to cumulate the United King dom imports with ot her subjec t ball bearings; (2) whe ther the 2 cumulated subjec t imports li kely will have a significant a dverse impact on the vulner able domestic industry

in the absenc e of the antidumping duty order s; and (3) whether

the cumulated subject imports likely

would constitute more than a minimal or tang ential ca

use of mate rial injury to the domestic industry

that likely

will continue or re cur in the a bsence of the orde rs, g iven the sig nificant pre sence of, and se eming ly impenetra

ble bar rier imposed by , non-subject imports in the United States market. See ge nerally Views of the Commission on Remand, Inv. Nos. 731-TA- 394-A, 731-T A-399-A (Aug . 25, 2010) (“ Third Remand Determ ination ”). With its most rece nt conclusions, the Commiss ion has dec lined to provide a g enuine discussion on complex is sues of lawand has, thus, for eclose d the opportunity for mea ningf ul judicial reviewof the latest ag ency

action. See ge nerally Third Remand De termination . The Commission aga in fails to support its determination with substantial evidence and unfor tunately continues to mischara cter ize the court’s re mand instructions. As explained below, the cour t remands the c ase to the Commi ssion for furthe r ac tion consistent with thi s and all pre vious opinions i n this matter.

In NSK IV

, the cour t did “not believe that the e x isting re cord, taken as a whole, c[ould] 2 support an af

firmative disce rnible adve rse impac t finding” on ball bear ings f rom the United King dom and invited the Commiss ion to “reope n the re cord a nd obtain additional data on this issue in the next remand proce eding , if it so chooses.” NSK IV , 34 CI T at ___, 712 F . Supp. 2d at 1367; accord id. at ___, 712 F. Supp. 2d at 1368 ( “[T] he Commissi on may reope n the re cord a

nd obtain additional data on the issue.” ).Consol. Court No. 06-00334 P age 4 I. Stand ard of Review The Court will not sustain an ag ency deter mination “unsupported by substantial evidence on the re cord.” 19 U.S.C. § 1516a(b)(1) (B )(i). An ag ency supports its findings with substantial evidenc e whe n the re cord e x hibits “more than a me re sc intill a” of rele vant and r easona

ble evidenc e to buttress its conclusion. See Consol. Edison Co. v. NLRB , 305 U.S. 197, 229 (1938). To provide the r equisite support, the ag ency must present more tha

n mere conjec ture. See NMB Sing. Ltd. v. United States , 557 F.3d 1316, 1319- 20 (F ed. Cir. 2009) (c itation omit ted). Though the cour t does not require perf

ect e x planations from the a g ency , the path take n by the administrative body

“must be re asonably

discernible.” Id. at 1319 (c itation omit ted). At a minimum , the ag ency

must ex plain the standar ds that it applied and rationally connec t them to the conc lusions itmade f

rom the re cord. See Matsushita Elec. Indus. Co. v. United States , 750 F.2d 927, 933 ( Fe d. Cir. 1984). II. Discussion A. Ball Bearings f

romthe United Kingd om Despite the c ourt’s invitation in NSK IV to reope n the re cord, 34 CI T at ___, 712 F . Supp. 2d at 1367-68, the Commission declined to do so in its redetermination of whether ball bear ings from the United K ingdom likely would have a

discernible a dverse impact on the domestic industry in the absenc e of the antidumping duty order . Status Report and J . SchedulingOrde r at 2, NSK Corp. v. United States , No. 06-00334 (CI T filed May 12, 2010). Neve rtheless, the

3

Notwithstanding the court’s e x plicit conclusion to the contrar y , the ag ency

later state d 3 that it would not reopen the r ecor d beca use the e x isting re cord suppor ted its finding that the United King dom imports li kely would leave the re quisite impact on the industry

. Third RemandConsol. Court No. 06-00334 P age 5

Commi ssion has now chosen not to cumulate the United King dom ball bear ings w ith those from the other f

our subject c ountries. Third Remand Determ ination at 12. The a g ency also rea soned 4 that subject imports from the United K ingdom a lone likely would not have sig nificant volume or price eff ects on the dome stic industry upon revoc ation of the orde r. Id. at 13. The Commission in turn found that ball bea ring s from the United K ingdom likely would not lead to the continuation or re curr ence of mater ial injury absent the or der. Id. Plaintiffs NSK Corporation, NSK L td., and NSK Europe L td. (tog ether , “NSK”) and Def endant- Interve nor The T imken Company (“Timken” ) urg e the c ourt to aff irm the Commi ssion’s decisions on United King dom ball bear ings, though for se para te re asons. NSK

5 Comments 2-5; Timken Com ments 5-6. NSK ar gues that the a g ency could not offe r substantial evidenc e for

an af firmative f

inding on e ither the disce rnible adve rse impac t or likely materia l injury analy sis and, there fore , the Commiss ion rea ched the corr ect r esult. NSK Comments 2-4. NSK also notes that it does not believe that the court c ompelled the Commissi on to make a particula r finding . NSK Comments 4-5. W hile it does not ex plicitly state that it ag ree s with the ag ency ’s view of

the cour t’s instructions in NSK IV , Timken explains that it“under stands” the

Determ ination at 2 n.8, 11-12. The court interpr ets this as a findingthat reope ning the rec ord would cause no signific ant cha ng e to the re levant body

of evide nce. The a g ency

notes that it “would not have ma de these finding s in the absenc e of the 4 Court’s conclusion in NSK IV that the re cord taken as a whole ca nnot establish that the subject imports from the United King dom would likely have a discernible a dverse impact upon revoc ation.” Third Remand Determ ination at 12. Plaintiffs J TEKT Corporation and Koyo Corporation of U.S.A. ( collectively , “JTEKT”) 5 take no position on the cumulation issue and instead f ocus their c omments ex clusively on the likely impact of subjec t imports on the domestic industry and the r ole of non-subje ct imports in the United States marke t. J TEKT Comments 4-6 & n.2.Consol. Court No. 06-00334 P age 6

Commi ssion’s conclusion that it had to reve rse its position. Tim ken Comments 6. Timken also share s the Commis sion’s belief that the c urre nt rec ord could support a n aff irmative findingon the discer nible adver se impact of United King dom ball bear ings. Timken Comments 6. The c ourt sustains the Commi ssion’s determination. Ordina rily , the Commiss ion retains the sole discre tion as to whether it will reope n the re cord a nd make c erta in fac tual finding s. Nippon Steel Corp. v. Int’l Trade Comm’n , 345 F.3d 1379, 1382 ( Fe d. Cir. 2003). That the c ourt may have limited the Commissi on’s options on remand is of no moment; “[e]ven though a revie wingcourt’s de cision that substantial evidence does not support a pa rticular f inding may have the prac tical ef

fec t of dictatinga par

ticular outcome , that is not the same as the c ourt’s makingits own factua l finding.” Nucor Corp. v. United States , 371 F. App’ x 83, 90 (F ed. Cir. 2010) (unpublished). As the re cord pr esently constituted does not support a dec ision to cumulate United King dom imports and the Commi ssion has declined to re open the r ecor d, the cour t upholds the ag ency ’s neg ative conc lusions on ball bearing s from the United K ingdom. B. Th e Cum ulated Su bjectIm ports In the context of a sunset re view, the Commission assesses whether revoc ation of the antidumping duty

order under r eview likely

would lead to continuation or r ecur renc e of material injury

. 19 U.S.C. § 1675a(a) (1). As pa rt of that ana ly sis, the ag ency examines the likely 6

At the hea

rt of this provision lies a causa tion inquiry , wher eby

the Commiss ion must 6 deter mine whether

the cumulated subje ct imports likely would constitute more than a minimal or tang ential ca

use of mate rial injury

to the domestic industry

that likely

will continue or re cur in the abse nce of

the orde rs. NSK IV

, 34 CI T at ___, 712 F . Supp. 2d at 1367-68; see NSK II , 32 CI T at ___, 593 F . Supp. 2d at 1363-67; Usinor v. United States , 26 CI T 767, 794-95 (2002) (not repor ted in F. Supp.); Neenah Foundry Co. v. United States , 25 CI T 702, 710-11, 155 F . Supp. 2d 766, 773-74 (2001)

.Consol. Court No. 06-00334 P age 7

volume, price eff

ect, a nd impact of subjec t imports on the domestic industry

. Id. The Commi ssion addresse d these fa ctors on re mand, usingonly data on the c umulated imports from Fr ance , Ger

many , I taly , and Japan in its analy sis. Third Remand Determ ination at 12 n.56, 13- 39. The c ourt revie ws the ele ments below. 1. The Cond itions of

Com petition in th e United State s Marketand th e Likely Volum e and Pr ice Eff

ect s of Cu m ulated Su bjectIm ports In the Third Remand Determ ination , the ag ency rea ssessed the c onditions of competition within the domestic industry and the likely

volume and pric e ef

fec ts of cumulated subjec t imports. Id. at 13-23. The Commi ssion modeled its discussion of these fac tors afte r its ear lier prese ntation of the same e lements in NSK I , basingits conclusions on nearly -identica l gr ounds. Compare id. at 13-23, with N SK I , 32 CI T at ___, 577 F . Supp. 2d at 1338-47. When the court first hea rd this case , it affirme d the ag ency ’s deter minations on these issues as supported by substantial evidence , despite re servations about some evidence offe red by the Commiss ion. NSK I , 32 CI T at ___, 577 F . Supp. 2d at 1338-47. NSK raise s anewconce rns on likely volume and price eff ects of the subject imports, NSK Comments 10-16, while Timken supports the Commi ssion’s curre nt analy ses as suff iciently analog ous to its previous determinations. Timken Comments 7-13. Although NSK ha s identified g aps in the ag ency rec ord that normally

would merit furthe r discussion, the cour t alrea dy has conc luded that these pr oblems do not undercut the substantial evidence in support of the Commissi on’s conc lusions. NSK I , 32 CI T at ___, 577 F

. Supp. 2d at 1338-47. Moreove r, NSK has not shown how the subtraction of United King dom imports from the equations alters the ag ency ’s pre vious determinations. For these re asons, the court sustains the Commissi on’s re sults on these points.Consol. Court No. 06-00334 Page 8

2. Non-Subject Imports, the Likely Significant Adverse Impact of the Cumulated Subject Imports on the Vulnerable Domestic Industry, and the Causation Inquiry A brief discussion of the structure of the United States ball bearing market will highlight the importance of non-subject imports in this case. Two crucial facts characterize the domestic market: (1) the high degree of substitutability between domestic ball bearings, subject imports, and non-subject imports and (2) the important role of price in purchase decisions. Third Remand Determination at 33, 36; Views of the Commission on Remand , Inv. Nos. 731-TA-394-A, 731- TA-399-A, at 43 (Jan. 5, 2010) (“ Second Remand Determination ”). Because price plays such a crucial role in the market, it follows that a drop in price for one group i.e., domestic ball bearings, subject imports, or non-subject imports likely will affect the prices at which another group sells the subject merchandise. Therefore, to understand the consequences of price changes in the domestic ball bearing industry, the Commission must focus on the market as a whole and examine the effects of each group on the others. In NSK IV

, the court summarized its concerns expressed in earlier opinions over the role of non-subject imports in the United States market. The court noted that “[n]on-subject imports have ‘become a significant and price-competitive factor’ in the United States ball bearing market, amply increased their market share in terms of value at the expense of domestic and subject ball bearings, and have undersold the domestic like product and subject imports in at least two-thirds of the possible price comparisons.” NSK IV , 34 CIT at ___, 712 F. Supp. 2d at 1368 (citing Second Remand Determination at 69-70). The court explained that “the facts of this case necessitate that the Commission confirm that subject imports likely will reach the requisite level of causation despite the significant presence of, and seemingly impenetrable barrier imposed by,Consol. Court No. 06-00334 P age 9

non-subject imports in the United States marke t.” Id . at ___, 712 F. Supp. 2d at 1367- 68. The court a sked the Commission t o answe r two questions on rema nd in light of the data on nonsubject imports: in the absence of the a ntidumping duty

order s, “whe ther the c umulated subject imports likely

will have a significant a dverse impact on the vulner able domestic industry” and “whe ther the c umulated subject imports constitute more than a minimal or tang ential ca

use of injury to the domestic industry

which will likely

continue or r ecur .” Id. at ___, 712 F. Supp. 2d at 1367. In the Third Remand Determ ination , the Commiss ion ag ain has fa iled to acc ount adequately

for the r ole of non-subje ct imports when ana ly zing likely

impact and c ausation. With respe ct to likely

impact, the ag ency

offe red two se ntence s in support of its affirmative deter mination: Upon re viewingthe Court’s instructions on this is sue as we ll as the pertinent rec ord evide nce, w e find that re vocation of the order s will li kely have a signific ant adver se impact on the vulne rable domestic ball bea ringindustry . Given our finding s on the subject imports’ likely signific ant volume, likely signific ant underse lling and likely

signific ant price eff

ects, the substitutability

betwee n domestic and subjec t bear ings, a nd the domestic industry ’s vulnera bility , it nece ssarily

follows that revoc ation of the orde rs would likely have a signific ant adver se impact on the dome stic industry

. Third Remand Determ ination at 31. The c onspicuous absenc e of a ny discussion on the eff

ects of non-subject imports under score s the Commis sion’s ref usal to acc urate ly

examine the three -par

t structure of the domestic mar ket. While the Comm ission mi g ht have r eac hed the c orre ct conclusions on likely

volume, underse lling, and pr ice e ffe cts of unre strained subjec t imports, id. , it ignore d the influenc e of non- subject imports in the market, a s NSK and JTEKT also discuss in their comments. NSK Comments 5-16; J TEKT Comments 12-27. On this rec ord, it appea rs toConsol. Court No. 06-00334 P age 10

the cour t that if subject produc ers lowe r the pric es of their imports, then the non-subject produce rs almost cer

tainly will also drop their price s. As a re sult, the non-subject imports likely would neg ate a

ny potential signific ant adve rse e ffe ct of lowe r-pr iced subjec t imports, thereby preve nting the latter fr om achieving the re quisite level of impact. Without more, the court cannot de termine whe ther the c umulated subject imports likely will have a significant a dverse impact on the vulner able domestic industry in the absenc e of the antidumping duty order s. On the issue of c ausation, the Commission correc tly framed the question that lies at the hear t of the cour

t’s rema nd instructions: whether any impediment imposed by

the sig nificant pre sence of low-pr iced nonsubject imports in the U.S. market will likely inhibit t he subjec t imports from captur ing a dditional market shar e fr om the domestic industry such that the subjec t imports are the reby

prec luded from ha

ving a likely signific ant adve rse impac t on the condition of the domestic industry if the orde rs wer e re voked. Third Remand Determ ination at 32. Howe ver, de spite this coge nt articulation, the a g ency did not offe r any meaning ful discussion on non-subject imports in its causation analy sis or directly addre ss the question posed by the cour t in its rema

nd instructions. See id. at 32-39. Instead, the Commi ssion based its affir mative ca usation determination on seve n g rounds: (1) the c ontinued prese nce of

subject imports in the domestic marke t; (2) the excess ca pacity of subject pr oducer s; (3) the likely

return of more a g g ressive volume a nd underse lling strate g ies of the subjec t produce rs that occ urre d prior to the imposition of the order; ( 4) the fung ibilit y betwee n the domestic like product a

nd subject merc handise; (5) the importance of price in purcha se decisions; (6) the ine lastic demand of ball bear ings; a

nd (7) the likely

signific ant volumes of subject imports in the absenc e of the order

. Id. at 32-34. The rationale offe red by the Commi ssion fails for many rea sons. That subject imports maintain a continued pr esenc e in theConsol. Court No. 06-00334 P age 11

domestic marke t does not mean that subjec t mercha ndise would ac hieve the r equisite level of

causation in the absence of the orde r. Contrary to the ag ency ’s conc lusion, unex plained infere nces f

rom a c ontinuation of market sha re, me asure d either in ter

ms of quantity

or value , will not necessar ily

prove that subject imports likely would cause materia l injury to the domestic industry . The same holds true for the ag ency ’s ar guments on excess capa city , fung ibilit y , the importance of price , and inelastic de mand, none of which alone can pr ove ca use. The third justification does not consider that chang ed mar ket conditions, i.e., a lar g e incr ease in nonsubject imports’ marke t share, likely would rende r past volume and unde rsellingstrateg ies unworka ble. Fina lly , the evidenc e on likely volumes of subject imports does not pass muster beca use, as pr eviously

explained, it unreasonably narr ows its analy sis to only cer tain seg ments of the domestic marke t. Wi th eac h of these justifications, the ag ency cente rs its reasoningon the relationship between subjec t imports and the domestic industry . For the re asons pre viously explained, “the non-subjec t imports may preve nt the subject imports from ac hievingthe re quisite level of c ausation and, the ref ore, se rve a s an impenetra ble bar rier tha t prec ludes the ag ency

from aff irmatively

findinginjury

in this suns et re view.” NSK IV , 34 CI T at ___, 712 F . Supp. 2d at 1368. Wit hout a more thorough examination of non-subject imports, the court c annot deter mine whether the cumulated subje ct imports constitute more than a minimal or tang ential ca use of injury to the domestic industry

which will likely

continue or r ecur . In light of the fore g oing, the court finds that the r ecor d evidenc e ca nnot support aff irmative sig nificant a dverse impact or c ausation dete rminations. Consequently , the cour t conclude s that the rec ord ca nnot support an af

firmative f

inding of materia l injury . The Commi ssion may

reope n the re cord a

nd obtain additional data on the issue at its di scre tion.Consol. Court No. 06-00334 P age 12 III. Conclusi on In the Third Remand Determ ination , the Commiss ion has prese nted a host of r easons to support its conclusions. The cour t sustains the ag ency ’s dec isions dealing w ith United Kingdom ball bear ings. H oweve r, amid the my riad of justifications produced by the ag ency , the cour

t cannot disce rn the ne cessa ry connec tion between the fac ts found and the a g ency ’s conc lusions on likely impact and c ausation. As the c ourt stated in NSK II , the consider ation of interc hang eable non-subject imports is an important aspe ct of the c ausation ana ly sis. 32 CI T at ___, 593 F . Supp. 2d at 1363-67, 1369 (c iting Mittal Steel Point Lisas Ltd. v. United States , 542 F.3d 867 ( Fe d Cir. 2008); Bratsk Aluminum Smelter v . United States , 444 F.3d 1369 ( Fe d. Cir. 2006); Gerald Metals, Inc . v. United States , 132 F.3d 716 ( Fe d. Cir. 1997)). The se dec isions all st and cle arly for the pr oposition t hat the ag ency , in a ca se of this ty pe, must rationally

acc ount for non-subjec t imports before it may

issue an af

firmative injury

deter mination. For the f

oreg oing r easons, it is ORDERED that the cour t SUST AINS IN P ART and REMAND S IN PA RT the Commi ssion’s Third Remand Determ ination . More spe cifica lly , it is ORDERED that the cour t SUST AINS the Commiss ion’s decision not to cumulate ba ll bear ings f rom the United King dom with other subject mer chandise ; it is further ORDERED that the cour t SUST AINS the ag ency ’s deter mination that revoca

tion of the antidumping duty

order on subject imports from the United Kingdom likely would not lead to continuation or re curr ence of mater ial injury to the domestic industry

within a rea sonably fore seea ble time; it is furtherConsol. Court No. 06-00334 P age 13

ORDERED that the cour t SUST AINS the Commiss ion’s conclusions on the conditions of compe tition wit hin the domestic industry and the likely

volume and pric e ef

fec ts of cumulated subject imports; it i s further ORDERED that the cour t REMAND S the likely

signific ant adve rse impac t analy sis to the Commiss ion. The ag ency must determine whe ther the c umulated subject imports likely will have a signific ant adve rse impac t on the vulnera ble domestic industry

in the absenc e of the antidumping duty

order s. In so doing, the Commi ssion mustacc ount for the tripa rtite nature of the United States ball bea ringmarke t and dec ide whethe r the interpla y and compe tition between subject imports, non-subject imports, and domestic ba ll bearing s would preve nt subject imports from ac hievingthe re quisite level of impact. B eca use the c ourt finds that the existi ngrec ord, taken a s a whole, c annot support an a ffirmative findingon likely signific ant adve rse impac t, the Commi ssion may

reope n the re cord a

nd obtain additional data on the issue; it is further ORDERED that the cour t REMAND S the ca

usation inquiry

to the Commi ssion. The ag ency must determine whe ther the c umulated subject imports constitute more than a minimal or tang ential ca

use of injury

to the domestic industry

that likely

will continue or re cur in the a bsence of the a ntidumping duty

order s, g iven the sig nificant pre sence of, and se eming ly impenetra

ble barr ier imposed by , non-subject imports in the United States marke t. Once a g ain, the Commi ssion mustacc ount for the thre e-pa rt composition of the domestic ball bea ringmarke t and decide whether

the interplay

and compe tition between subjec t imports, non-subject imports, and domestic ball bea

ring s would preve nt subject imports from ac hievingthe re quisite level of ca use. Be cause the cour

t concludes that the exis ting r ecor d, taken a s a whole, c annot support anConsol. Court No. 06-00334 P age 14

aff irmative findingon causation, the Comm ission may reope n the re cord a

nd obtain additional data on the issue; it is further ORDERED that, in completing its ana ly sis of the likely signific ant adve rse impac t and

causation inquiries on remand, the Commission mus t addre ss the court’s c oncerns over nonsubject imports as noted in NSK IV , NSK III , NSK II , and NSK I

; and it is further ORDERED that the Commiss ion shall provide a status re port to the court by Dec ember 20, 2010, that explains whether the a g ency will re-ope n the re cord on the likely signific ant adver se impact a

nd causation issues. The parties a lso shall file a joint schedulingorder consistent with Court and Chambers rule s at that time.

Dated: De cembe r 9, 2010 /s/ J udith M. Barzil ay New Y ork, Ne w York J udith M. Barzil ay , J udg e