S LIP O P
. 04-119
U NITED S TAT ES C OURT OF I NTER NAT IONAL T RADE B EFORE : R ICHA RD K. E ATON , J UDGE

__________________________________________ : A MERI CAN B EARI

NG M ANUFA CTURE RS : A SSOC IATI ON , : : P LAINTIFF , : : V
. : C OURT N O
. 03-00280 : P UBLIC V ERSI ON U NITED S TATES , : : D EFENDANT , : : AND : : P EER B EARI

NG C O ., N INGB O M OS G ROUP , N INGBO : C IXI NG B EARI

NG , N INGB O H UA NCH I G ROUP , : W ANGXIANG G ROUP C ORP ., N INGB O G ENERA L : B EARI NG C O ., L TD ., J IANGS U G ENERA L B ALL A ND : R OLLER C O ., L TD ., : : D EFENDANT - : I NTERVENO RS
. : __________________________________________: [Plaintiff’s motion for judgment upon an agency record denied; United States I nternational Trade Commission’s negative final determination sustained] Dated: September 16, 2004 Covington & Burling

( Harvey M. Applebaum , David R. Grace , Karin L. Kizer , Nathan T. Daschle , Ariadna Vazquez ), for Plaintiff. James M. Lyons , Acting General Counsel, United States I nternational Trade Commission ( Charles A. St. Charles ), for De fendant

. Peter D. Keisler , Assistant Attorney Gene ral, Civil Division, United States Department of Justice; David M. Cohen , Direct or, Commer

cial L itigation Branc

h; Jeanne E. Davidson , Deputy Director, Commercial Litiga tion Branch ( Claudia Burke ), for De fendant

.C OURT N O . 03-00280 P AGE 2

1 The American Bearing Manufacturers Association is a trade association, a majority of whose member s produce ball bearings or parts there of. See Compl. ¶ 2.

2 The United States Department of Commerce found that the subject imports had been sold at less than fair value. See Certain Ball Bearings and Par ts Thereof From the P.R.C., 68 Fed. R eg. 10, 685 (ITA Mar. 6 , 2003) (n otice of final determinat

ion of sal es at less

than fai r value). The scope of the ITC’s investigation covered

all antifriction bearings, rega rdless of size, precision grade, or use, that employ balls as the rolling e lement (whether ground or ungrou nd) and p arts ther

eof (inner ring , outer r

ing, ca ge, ba lls, seals, sh ields, etc .) that a

re produ ced in Chin

a. I mports of t

hese products are classified under the following c ategories: antifriction balls, ba ll bearin gs with in tegra l shafts a nd parts t hereof , ball bearing s (includ

ing thru st, angu

lar cont act, and radial b all bearings) and parts thereof, a nd housed or mounted ball bearing units and parts thereof. The scope includes ball bearing type pillow blocks and parts thereof; and wheel hub units incorporating balls as the rolling element. With regard to finished parts, all such parts ar e include d in the sc ope of the petition. Wi

th rega rd to (continued...) Coudert Br

others, LLP

( Matthew J. McConkey ), for Defendant-I ntervenor Peer Bearing Co. Wilme

r Cutler Pic

kering, LL

P ( Jason E. Kearns , John D. G reenwald , Jack A. Levy , Lisa M. Pearlman ), for Defendant-I ntervenors Ningbo Mos Group, Ningbo Cixing Bea ring, Ningbo Huanchi Group, Wangxiang Group Corp., Ningbo Ge neral Bearing Co., L

td., Jiangsu General Ball and Roller Co., Ltd.
O PINI ON E ATON , Judge : Before the court is plaintiff American B earing Manufacturers A ssociation’s 1 (“ABMA”) U.S.C.I .T. Rule 56.2 motion for judgment upon an agency record challenging the United States International Trade Commission’s (“ITC”) final determination made pursua nt to 19 U.S.C. § 167 3d(b)(1 )(A) (2 000), tha t an indust

ry in the Unit

ed States is neither materia lly injured, nor threatened with material injury, by reason of dumped imports of ball bearings, and parts thereof, from the People’s Republic of China. 2 See Ball Be arings From C hina, 68 Fed. Reg.C OURT N O . 03-00280 P AGE 3

2 (...continued) unfinishe d parts, s

uch part s are inc luded if ( 1) they have be en heattreated or (2) heat treatment is not required to be performed on the part. Thus, the only unfinished par ts that are not covered by the petition are those that will be subject to heat treatment after importation. Mem. INV-AA-035 (Ma

r. 21, 2003), List 2, Doc. 393 (“Staff Repor t”) at I-1 n.1.

3 The most recent prior investigation of ball bearing s was a five-y ear review of orders on bearings from China, Fra nce, Germany , Hungary , Italy , Japan, Romania, Singapore, Sweden and the United Kingdom, completed in June 2000. See Certain Bearings from China, Franc e, Germa

ny, Hung., Ital

y, Ja pan, Rom., Sing., Sw eden, a nd U.K., U SITC Pu

b. 3309, I nvs. Nos. AA-1921-143, 731-TA-341, 731-TA-343-345, 731-TA-391- 397, and 731-TA-399 (June 2000) Vol. I (“2000 Review” ) at 3. 17,963 (ITC Apr. 14, 2003) (notice of final determination); Ball Bearing s From China, USITC Pub. 3593, Inv. No. 731-TA-989 (Apr. 2003), L ist 2, Doc. 408 (“Final Determination”). The court has jurisdiction pursuant to 28 U.S.C. § 1581(c). For the reasons below, the cour t sustains the Final Determination.

B ACKGROUND On February

13, 2002, in response to a petition filed by AB MA, the ITC instituted an investigation of ball bearings from the People’s Republic of China. See Ball Bearings From China, 67 Fed. Reg. 8039, 8040 (I TC Feb. 21, 2002) (notice of institution of investigation). As with ball b earing s in prior i nvestig ations, 3 those subj ect to the instant inv estiga

tion were found to “cover[] a continuum of products in many sizes and c onfigurations,” and the I TC treated the continuum as the domestic like product. See Final De terminat ion at 8. B all bear

ings ar e used in a wide range of products and industries, including the automotive, aerospace, agric ulture, and construction industries. See Staff Report at II -11.C OURT N O . 03-00280 P AGE 4

The ITC gathe

red information with respect to domestic and imported ball bearing s for the period of January 2000 to De cember 2002. Following its investigation made pursuant to 19 U.S.C. § 1677(7)(C)(i)–(iii), the ITC concluded tha t the domestic ball bearing industry was not being materially

injured by rea son of the subject imports. See 19 U.S.C. § 1673d(b)(1)(A)(i); Final Determination at 30. The I TC also determined that the domestic ball bearing industry was not threatened with material injury by reason of

the subject imports. See 19 U.S.C. § 1673d(b)(1)(A)(ii); Final Determination at 33. AB MA appealed the ITC’s f inal negative material injury and thre at of material injury de terminations to this Court pursuant to 19 U.S.C. § 1516a(a)(2)(A)(i).

S TAN DARD OF R EVIEW The court will hold unlawful “any determination, finding, or conclusion found . . . to be unsupported by substantial evidenc e on the record, or otherwise not in accor dance with law . . . .” 19 U.S.C. § 1 516a(b) (1)(B) (i). Subst antial ev idence i s “such r

elevant evidenc e as a re asonable mind might accept as adequate to support a conclusion.” Consol. Edison Co. v. NLRB , 305 U.S. 197, 229 (1938) (citations omitted). It “require s ‘more than a mere scintilla,’ . . . but is satisfied by ‘something le ss than the weight of the evidence.’” Altx, Inc. v. United States , 370 F.3d 1108, 1116 ( Fed. C ir. 20 04) (q uoti ng Atl. Sugar, Ltd. v. United States , 744 F.2d 1556, 1562 (Fed. Cir. 1984); Matsushita Elec. Indus. Co. v. United States , 75 0 F. 2d 9 27, 933 (Fe d. C ir. 198 4)) . In conducting its review, the court must take into account not only the evidence on the record that justifies the ITC’s findings, but also “whateve r in the record fairly

detracts from its weight.” Universal Camera Corp. v. NLRB , 340 U.S. 4 74, 488 (1 951); Suramerica de AleacionesC OURT N O . 03-00280 P AGE 5

Laminadas, C.A. v. United States , 44 F. 3d 978 , 985 ( Fed. C ir. 19 94) (ci ting Atl. Sugar , 744 F.2d at 1562). However, the court’s function is not to reweig h the evidence but rather to ascertain “whether there was evidence which could reasonably

lead to the Commission’s conclusion . . . .” Matsushita , 750 F.2d at 933. The possibility of draw ing two inconsistent conclusions from the record evidence does not, in itself, prevent the I TC’s determinations from being supported by substantial evidence. Consolo v. Fed. Mar. Comm’n , 383 U.S. 607, 620 (1966) (citations omitted).

D IS CUSS ION ABMA contests, as unsupported by substantial evidence or otherwise not in accordanc e with law, the ITC’s findings with respe ct to (1) whether the volume of subject imports was significant, (2) whether the effe ct of the subject imports on domestic prices was significant, (3) whether the subject imports have had a significa nt adverse impact on the domestic industry , and (4) whether the domestic industry is threatened with material injury by reason of

the subject imports.

1. Volume The ITC’s volume determination require s an evaluation of “whether the volume of imports of

the merc handise, or any

increa se in that volume, ei ther in a bsolute te rms or re lative to production or consumption in the United States, is significant.” 19 U.S.C. § 1677(7)(C)(i). Here, t he ITC con clude d that the vo lume o f subj ect im ports was no t sign ifica nt, “r ely[ing] primarily on value measure s for app arent c onsumption , domestic shipments, and subje ct imports ,C OURT N O . 03-00280 P AGE 6

4 Information on

complete ball bea rings, b all bear

ing ball s, and ba

ll bearin g parts other than balls was gathered by both value and quantity. F inal Determination at 13 (citing Staff Report, tbls. II I-5–III -7). As discussed infra Part 2, the ITC collected data on a total of fifteen products, including twelve complete ball bearing s (products 1–12) and three loose ball bearing balls (products 13–15). See Staff Report at V-3–V-4.

5 With respect to the significance of the volume of subject imports, as measur ed by value, the ITC found:

[A]pparen

t domestic

consumpti on declined during the POI , with the value of complete ball bearings, ball bearing balls, and other ball bea ring pa rts dropp ing by

$305.4 mill ion, or 10 p ercent , betwee n 2000 and

2002. This

decline was split a

lmost even

ly between nonsubject imports, which declined by $153.6 million, and the domestic like product, which declined by $163.1 million. As overall domestic consumption, domestic like product shipments, and nonsubject imports all fell, the volume of subject imports increased over the POI . The value of s ubject im ports of complete ball bearings, ball bearing balls, and other ball bearing parts increased by

8.5 percent between 2000 and 2002. The marke t (continued...) as [it had] in prior ball bearing investigations, and for the same rea sons.” 4 Final Determination at 14 (emphasis added) (citing Ball Be arings From China, USIT C Pub. 3504, Inv. No. 731-TA989,(May 2002) at 1 1; 2000 Rev

iew at 39; Ball Be arings , Mounted or Unmounte d, and Par ts Thereof, From Arg., Aus., B raz., Can., H.K., Hung., Mex., P.R.C., Pol., Rep. Korea, Spain, Taiwan, Turk. and Yugoslavia, USITC Pub. 2374, Inv. No. 701-TA-307 (Apr. 1991) a t 19–20; Antifriction Bearings (Other Tha n Tapered Rolling Bearing s) and Parts Thereof, from F.R.G., Fr., Italy , Japan, Rom., Sing., Swed., Thail., and U.K., USITC Pub. 2185, Invs. Nos. 303-TA19–20, 731-TA-391–399 (May 1989) (“USITC Pub. 2185”) at 67, 69, 71; Taper ed Roller Bearings and Parts Thereof , and Certain Housings Inc orporating Tapered Rollers From Hung ., P.R.C., and Rom., USITC Pub. 1983, Invs. Nos. 731-TA-341, 344 and 345 (June 1987) (“USITC Pub. 1983”) at 16). 5 While the ITC recognized that there were “limitations presented by usingC OURT N O . 03-00280 P AGE 7

5 (...continued) share he ld by

subject im

ports as measured by value increased from 3.9 percent in 2000 to 4.7 percent in 2002. The value of subject imports of complete ball bearings increase d by 5.6 perce nt between 2000 and 2002, and the market share held by subject imports of complete ball bearings increased f rom 4.1 percent in 2000 to 4.8 percent in 2002. Shipments of domestically produc ed and nonsubject complete ball bearings declined by 8.0 and 17.2 percent respectively

between 2000 and 2002. However, the marke t share held by the domes tic like pr

oduct increased , from 68. 6 perce nt in 2000 to 70.4 percent in 2002. Thus, any market share gained by subject imports came at the expense of nonsubject imports rather than the domestic like product. While the volume of subject imports inc

reased over the POI a t a time wh en appa

rent dome stic consumption slowed, the increases were modest, as was the absolute volume of subject imports in the U.S. market throughout the POI. At the end of the POI subject imports from China accounted for only

4.7 percent of apparent domestic consumption of complete ball bearings, ball bearing balls, and other ball bearing parts, and that market share had increa sed by less than one percentage point over the POI . The domestic like product accounted for over two-thirds of appar ent domestic consumption, and this share increased over the POI . As noted, the small amount of market share gained by subject imports came at the expense of nonsubjec

t imports. We

find that t

he volume

and the in

crease in volume of subject imports are not significant either in absolute or relative terms. Final Determination at 21–23 (citations to record omitted) (emphasis added)

. value measures rather than quantity measures, such as the difficulty in determining whether chang es in value totals a

re caus ed by

chang es in prod

uct mix or changes

in price ,” it none

theless decided to “rely

on value-based indicators as the best measure for a continuum product that includes a vast and disparate grouping of items differing in size, configuration, application, and precision.” Final Determination at 14–15.

ABMA ar

gues tha t the I TC: (1) fa

iled to ad equatel y c onsider i

mport quantity

data inC OURT N O . 03-00280 P AGE 8

6 In support of its argument, AB MA points to legislative history conce rning causati on, i.e., the I TC’s dete rmination of wheth er mater

ial injury is by reason of

imports, which states: “The ITC investigate s the conditions of trade and competition and the genera l condition and structure of the relevant industry . It also considers, among othe r factors, the quantity , nature, and rate of importation of the imports subject to the investigation . . . .” S EN
. R EP
. N O . 96-249, at 74 (1979), reprinte

d in 1979 U.S.C.C.A.N. 381, 460 (emphasis added).

7 In thi s rega

rd, ABMA

cites the following

discussion of quan

tity data fou nd in footnote 111 of the Final Determination:

Measured by

quantity, subject imports increase d by 10.4 perce nt between 2000 and 2002, and market share rose from 20.8 percent to 26.4 percent. [ See Staff Report, tbl. C-1-A]. Domestic market share fell from 35.9 percent to 32.9 perce nt, while nonsubject import share fell from 43.3 percent to 40.8 percent. Id . The market share o f open market ship ments of com plete ball b earings (continued...) determining whether the volume of subject imports was signific ant, (2) failed to offer an adequate explanation for not considering such data, ( 3) failed to respond to arguments advocating the use of import qua

ntity data, an d (4) fa iled to consider the impact o f unfair ly tr aded imports in the context of the ball bearing marketplace. See Pl.’s Conf. Mem. Supp. Mot. J. Admin. R. (“Pl.’s M em.”); Pl. ’s Reply Mem. Supp. Mot. J. Admin. R. (“Pl.’s Reply ”). The court wil l address each argument in turn.

First, ABMA asserts that 19 U.S.C. § 1677(7)(C)(i) requires the I TC to consider the quantity of imports , 6 and that the ITC failed in its obligation when it alleg edly “ig nored substantia l recor d evidenc e demonst

rating that the v olume of im

ports of c omplete Ch

inese ba ll bearings [based on quantity ] was significant.” Pl.’s Mem. at 17, 18. ABMA states that “[a]lthoug

h the quan

tity data ar e include d in the Staff Repor t, the Commis sion rele gated i ts discussion of volume by unit-quantity to a footnote.” 7 Id . at 17. Second, claiming that “importC OURT N O . 03-00280 P AGE 9

7 (...continued) held by subject imports as measur ed by value inc

reased from 4.6 percent in 2000 to 5.4 percent in 2002. Calculated from [Staff Report, tb ls. II

I-5, C-1-A]. Me asured by qu antity , subject

imports increa sed from

21.0 per cent of o pen mark et shipmen

ts of comp lete ball bearings in 2000 to 26.6 percent in 2002. Id

. Final Determination at 22 n.111. data measured in quantity for complete ball bearings pointed to a differ ent conclusion than the one the Commission reached using value to measure imports,” AB MA argues that “the Commission at a minimum should have evaluated both sets of data [i.e., value and quantity da ta,] and explai

ned why the volume

numbers were not s ignific ant, inste ad of dism issing wi thout a reasoned explanation data that contradicted its conclusion.” Id . at 19 (citi ng Altx, Inc. v. United
States , 167 F. Supp. 2d 1353, 1359 (2001), aff’d 370 F.3d 1 108 (Fe d. Cir. 200 4)). Thir d, ABMA
argue s that the I

TC “faile d to addre ss the dome stic indust ry ’s arg uments tha

t Chinese i

mports were significant when measure d by unit-quantity .” Id . at 18. Fourth, ABMA contends that the
ITC’ s finding

that the v olume of s

ubject imp orts, as me asured by va lue, was not signi ficant f

ails to take into consideration the specific character istics of the marketplace, in particular, that the ball bearing market is price sensitive. Id . at 21.

Finally , ABMA a

rgues t hat Torrington Co. v. United States , 16 CIT 220, 230 , 790 F. Supp. 1161, 1172–73 (1992), aff’d 991 F.2d 809 (Fed. Cir. 1993), cited in the Final Determi nation, he ld that it wa s permissi ble for the IT C to use va

lue data in the con

text of its determination of whether to cumulate the imports, pursuant to 19 U.S.C. § 1677(7)(G), but does not support the use of value data to evaluate the significa nce of import volume in the context of aC OURT N O . 03-00280 P AGE 10

material injury dete

rmination. See Pl.’s Mem. at 18; Pl.’s Reply at 3.

The ITC responds that its “primary reliance on value-based measure s of the volume of subject imports was supported by substantial evide nce and otherwise in accordance with law.” Def.’s Conf. Mem. Opp’n Pl.’s Mot. J. Agency R. (“Def.’s Resp.”) at 15. First, the ITC argues that 19 U.S.C. § 1677(7)(C)(i) does not require the I TC to use quantity-based mea sures of volume, and urges the court to defer to the I TC’s primary re liance on value-based measures of volume as a permissible construction of the statute. Id . (cit ing Chevron U .S.A. Inc . v. Nat. Re

s. Def. Council, Inc. , 467 U.S. 837, 842–43 (1984)). In addition, the ITC insists that it considered the quantity data in the re cord and identifies express references to such da ta in the Final Determination. Id . at 19 (citing Final Determination at 17 n.75, 18 nn.81–83, 22 nn.111, 114) (“The f act that r efere nces to qu

antity data app eared i

n footnote s does not d

etract f rom their discussion by the ITC, and is consistent with the ITC’s reasonable re liance primarily upon va lue indicators.”). Second, the ITC states tha t it not only considered ABMA ’s arguments urging the use of imp ort quant

ity d ata, but a lso consid

ered its p ast practice, an

d the valu e and qua ntity data on the record gathered in the c ourse of its investigation. Id . at 15; see citation t o past investig ations supra at 6. Third, the ITC asserts that it “explained its primary reliance on value data at length,” specifically in its discussion of the conditions of competition. Id . at 20 (“The
ITC’ s path in r

ely ing on va lue-mea sures wa s abunda ntly clear. ”). Fou

rth, with r

espect t o consider ations of the mark etplace , such as p

rice se nsitivity, the I TC argu

es that AB MA “rest [s] [its argu ments] on a p

resumption that bal l bearin gs are highly price se nsitive,” but the ITC “did not find the ball bearing market to be marked by a high degree of pr

ice sensitivity . . . .” Id . at 23C OURT N O . 03-00280 P AGE 11

(citing Final Determination at 19).

As to its reliance on Torrington , the ITC argue s that the court “expressly af firmed the
ITC’ s practic e of using

value me asures o f import vo lume.” De f.’s Resp . at 16. The IT C asserts that the court’s holding in Torrington is on point with the issue involved here, “notwithstanding its conside

ration of subject im

port volume under a

provision

of the sta tute conc erned with cumulation.” Id . at 17. According to the ITC,

[n]ot only is the pro duct at iss

ue ball be arings , as it was in Torrington , the statute is silent as to the means of measuring volume and the use of a value-based measure ment is reasonable. The subject ball bearing imports consist of a vast arra y of config urations , applica

tions, and precision rating s of ball b earing s, units incorporating ball bearings, individual balls and race s, and other ball bearing parts. Theref ore, as in Torrington , “construction of agg regat e data r egard ing the q uantity of [ball be aring] im

ports would have been impractical due to variations in product sizes and weight per unit between complete bear ings and parts.” Id . at 18 (quot ing Torrington , 16 CI T at 230, 7 90 F. Supp . at 1173) . The I TC urge s the cour t to sustain its conclusi on that the

volume of

subject im

ports was not signi ficant.

With respect to the ITC’s decision to rely primarily on value da

ta to measure volume, the court finds the ITC’s construction of 19 U.S.C. § 1677(7)(C)( i) to be reasonable. When faced with a que stion of sta

tutory construc tion, the c ourt must “ determine whethe r Congr ess’s pur pose and intent on the question at issue is judicially ascer tainable.” Timex V.I., Inc. v. United States , 157 F.3d 8 79, 881 (F ed. Cir. 1 998) (ci tation omit

ted). The court’s inquiry starts wit h the plai n langua ge of the statute , as the st atute’s t ext is “Cong

ress’s f inal expre ssion of its

intent, [thu s] ifC OURT N O . 03-00280 P AGE 12

the text answers the question, that is the end of the matter.” Id . at 882 (citations omitted); Chevron , 467 U.S. at 842. However, if the statute’s languag e does not compel a particular interpretation, the court must use “all ‘traditional tools of statutory construction’ to determine whether ‘Congress had an intention on the prec ise question at issue’ before we consider deference to an ag ency interpr etation.” Candle Corp. of Am. v. United States Int’l Trade
Comm’n , 374 F .3d 10 87, 10 93 (Fed . Cir . 2004 ) (quo ting Chevron , 467 U.S. a t 483 n.9). Should the cour t find that “a statu te is ambig

uous or Con

gress i ntentiona lly l eaves in

terpretive ga

ps in the language of a statute, c ourts must defer to agency interpretations of that statute so long as those interpretations are not ‘arbitrary , capricious, or manifestly contrary to the statute.’” Comm. for Fairly Traded Venezuelan Cement v. United States , 372 F.3d 1284, 1289 (Fed. Cir. 2004) (quot ing Chevron , 467 U.S. a t 844). “I n other w ords, if Congress has left r oom for a n agency to interpre t a statute , courts c an only inquire a s to whethe

r an ag ency ’s constr

uction of that statu te is a reasonable interpretation.” Id . (quotation omitted).

Turning to the stat

ute in que stion her

e, 19 U.S. C. § 1677(7 )(C)(i)directs t he I TC to evaluat e the sig nificance of the

volume of

imports of

the subje ct merchandise, e ither in a bsolute terms or relative to production or consumption in the United States, but does not specify whether the volume

of imports

is to be mea sured in t

erms of the value o f imports, the quant ity o f imports,

a c om bi na ti on of

bo th , o r i nd ee d b y so me ot he r m ea su re . N or do es th e l eg is la ti ve hi st or y cl ea rl y favor a particular interpretation. While, as ABMA points out, the leg islative history mentions that the ITC considers the “quantity ” of imports, it also states that quantity is but one of many factors it considers. S EN
. R EP
. N O . 96-249, at 74 (1979), reprinte d in 1979 U.S.C.C.A.N. 381,C OURT N O . 03-00280 P AGE 13

460 (“[The ITC] also considers, among other factors, the quantity, na

ture, and rate of importation of the impo

rts subjec t to the inve stigation . . . .”) . What is cle ar, howe ver, is that Congr

ess
recog nized that i

n determ ining the signific ance of

the volume , price e ffect, and impact of import s in the U.S. market, the ITC must evaluate the fa cts of each particular case, a nd the industry involved, and make its material injury de termination accordingly

. See S EN
. R EP
. N O . 96-249, at 88 (1979), reprinte

d in 1979 U.S.C.C.A.N. 381, 474 (“The significance of the var ious factors affecting an industry

will depend upon the facts of each particular c ase. Neither the presence nor the absence of any

factor . . . can necessarily give decisive guidance with re spect to whether an industry is materially

injured, and the significance to be assig ned to a particular factor is for the ITC to decide. I

t is expected that in its investigation the Commission will continue to focus on the condi tions of tr ade, co mpetition, and deve lopment re gardin g the ind ustry concer ned.”); see also Nat’l Ass’n of Mirror Mfrs. v. United States , 12 CIT 771, 778, 696 F. Supp. 642, 647 (1988) (“The Commission ha s discretion to make a reasonable int

erpret ation of the facts .”); Citrosuco Paulista, S.A. v. United States , 12 CIT 1196, 1209, 704 F. Supp. 1075, 1087–88 (1988) (“[T]he Commission’ s determi

nations mu st be base d upon an i ndepend ent eval uation of the factors with respect to the unique economic situation of each product and industry under investigation.”). The decision of whether to rely primarily on quantity

data, value data, or both, to measure the significance of import volume is precisely the type of dec ision that Congress has entrusted the ITC to make in light of the facts and circumstances of each particular case. “In other

words, . . . Congress has left room for [the I TC] to interpret [the] statute, [thus the] court[] can only inquire as to whether [the ITC’s] construction of that statute is ‘a re asonable interpretation.’” Comm. for Fairly Traded Venezuelan Cement , 372 F .3d at 1289 ( quot ing Chevron , 467 U.S. at 844).C OURT N O . 03-00280 P AGE 14

8 The cumu

lation sta tute prov ides that “

the Commissi on shall c

umulative ly a ssess the volume

and eff ect of imp orts of the

subject me

rchandi se from a

ll countri es with re spect to which” c ertain c

riteria have be en satisf

ied, “if such impor

ts compete

with eac h other a nd with domestic like products in the United States market.” 19 U.S.C. § 1677(7)(G)(i). Mindful of the ITC’s responsibilities in administering the antidumping statute, the c ourt finds the ITC’s construction of 19 U.S.C. § 1677(7)(C)(i), w ith respect to its primary re liance on value-b ased indi cators to

evaluat e the sig nificance of the

subject im

ports, to b e reasonable in light of wide variations in the size, configuration, application, and pre cision of ball bearings. See Suramerica de Aleaciones Laminadas, C.A. v. United States , 966 F.2d 660, 665 n.5 (Fed. Cir. 1992) (noting the ITC qualifies a s an agency that “is by virtue of its responsibilities under the Ac t and its expertise, entitled to the benefit of Chevron defere nce.”) ; Pesquera Mares Australes Ltda. v. United States , 266 F .3d 13 72, 13 80 (Fed . Cir . 2001 ) (quo ting United States v. Mead Corp. , 533 U.S. 21 8, 229 (20 01)) (c oncluding that “ Chevron deference is due at least to those statutory interpretations that are articulated in any ‘relatively f

ormal administrative procedure’ . . .”). The court’s reasoning in Torrington is instructive. In Torrington , the court reviewed the I TC’s construction of the term “volume” in 19 U.S.C. § 1677(7)(G), the statute that authorizes the I TC to cumula te imports

under ce rtain cir cumstanc es. 8 As with the statute in issue here, the cumulation statute d

id not expre ssly

require the I TC to use e ither qua ntity or value data to evaluate the significance of import volume. Torrington , 16 CIT a t 2 30, 709 F. S upp . at 117 2. In holding that “it was reasonable for the Commission to use value-based indice s when considering the volume

of imports ,” the co

urt noted the vari ations in b all bear ings’ “ sizes and w eight pe r unit between complete ball bearings and pa rts.” Id . at 230–31, 709 F. Supp. at 1173. The court found that acc epting t

he plaint iff’s ar gument t hat the I TC “must an

aly ze the volu

me of impor

ts in termsC OURT N O . 03-00280 P AGE 15

of quantity could lead to absur d results in investigations involving industries producing low quantities of high-value merchandise.” Id

.

Similarly, here the I

TC explained why using quantity data could produce misleading results a s to the impa

ct of the subject im

ports on the domestic

industry : “[I]t would pres ent a distorted picture of the market to consider a commodity bearing costing less than one dollar as equivalent to a precision bearing costing hundreds or even thousands of dollars.” Final Determination at 15 n.62. The ITC found that the size, conf iguration, application, and precision of complete and partial ball bearings var y widely

. Id . at 15. Thus, the same considerations that led the Torrington court to find the ITC’s construction of the ter m “volume” to be reasonable are present here and militate in favor of this court finding the I TC’s construction of 19 U.S.C. § 1677(7)(C)(i) to be reasonable.

In addition, the I TC’s use of value-based indicators to evaluate volume in the conte xt of a ball bearing investigation is consistent with its past practice. “An a ction by the I

TC becomes an ‘agency practice’ when a uniform and established proc edure exists that would lead a party , in the absence of notification of change , reasonably to expect adherence to the established practice or procedure.” Ranchers-Cattlemen Action Legal Found. v. United States , 23 CIT 861, 884–85, 74 F. Sup p. 2d 1 353, 1 374 (1 999) ( inter nal ci tati on om itte d). In pri or inv estiga tion s of ba ll bea rings dating b ack to 198 7, the ITC relied , at leas t in part, on value- based ind icators i n the cour

se of its material injury ana

lysis. See, e.g. , USITC Pub. 1983 at 29; USITC Pub. 2185 at 67, 141; 2000 Review a t 43; see also Torrington , 16 CIT at 230, 790 F. Supp. at 1170 (noting I TC’s use ofC OURT N O . 03-00280 P AGE 16

value-based measurements to ascertain import volumes of be aring products in other determinations). In the Final De termination, the ITC stated that it would relyprimarily on valuebased indicators as it had done in past ball bearing investig ations, “and for the same reasons.” Final De terminat ion at 14. I

n the past , value-

based me asures have bee

n found to b e prefe

rable where, as here, the products under inve stigation vary in size, quality and application. See, e.g. , USIT C Pub. 1983 a

t 5. “Altho

ugh not d etermina tive, the construction of a s tatute by those charged with its administration is entitled to great defer ence, particularly

when that interpretation has been followed consistently over a long period of time.” United Sta tes v. Clar k , 454 U.S. 555, 565 (1982 ) (citat

ion omitted

); NLRB v. Bell Aerospace Co., Div. of Textron, Inc. , 416 U.S. 267, 274–75 (1974) (“[A] court may a ccord great weig

ht to the longstanding interpretation placed on a statute by an age ncy charg ed with its

administr

ation.”) ; Tex. Crushed Stone Co. v. United States , 35 F.3d 1535, 1541 n.7 (Fed. Cir. 1994) (“Prior age ncy prac tice is relevant in determining the amount of

defere nce due an age ncy ’s interp

retation .”). Thu s, both past practic e and de ferenc e to the ITC’s construction of the volume statute under Chevron support the ITC’s use of a valuebased measure of volume.

Having found it permissible for the I TC to use a value-based measure of volume, the court turns to ABMA’s arguments with respec t to whether substantial evidence supports the ITC’s volume determination. ABMA’s a rguments are not persuasive. First, AB MA contends that “import data measured in quantity for complete ball bearings pointed to a different conclusion than the one the Commission reached using value to measure imports . . . .” Pl.’s Mem. at 19 (emphasis added). The I TC was faced with the difficult question of how to conductC OURT N O . 03-00280 P AGE 17

its analysis when the subject imports and the dome stic like product were characterized by a wide variety of sizes and a

pplications. In order to conduct its analy sis, the ITC reasonably

chose value as its measure of volume. Whether the record might support alter nate findings based on other data is, o f course , not the is sue. The question i s “wheth er ther e was evidence w

hich coul d reasonably

lead to the Commission’s conclusion . . . .” Matsushita , 750 F.2d at 933. “I

t is within the Commission’s discretion to make reasonable interpretations of the evidence a nd to determine the overall significance of any particular factor or piece of e vidence.” Maine Potato Council v. United States , 9 CIT 293, 300, 613 F. Supp. 1237, 1244 (1985) (citation omitted); United States Steel Group v. United States , 96 F.3d 1 352, 1357 ( Fed. Cir . 1996) (d

ecision a bout what weight to give a p articula

r piece of evide nce is “a t the cor e of [the] e

valuativ e proce ss”). The

volume da

ta on the record, based on value, indicate that while appa rent domestic consumption decreased, and the share of consumption held by the subject imports increased over the period of investiga tion, the share of consumption held by the domestic like product increased as well. See Staff Rep ort, tbl. C-4-A. Nonsubject complete ball bearing import shipments declined over the pe riod of investig ation, le ading the IT C to conclu de that “ any

market share ga

ined by subject im

ports ca me at the expense of nonsubject imports” rather than the domestic like product. Final De termination at 23. The ITC found that the purcha sers’ questionnaire responses supported this conclusion. Id

. n.117 (citing Staff Report at I I-16) (“Thirty -two of 35 responding purchasers re ported that other imports were the most competitive alternative to subject imports.”). That another conc lusion might be reached using another set of data is not significant, where, as here , the ITC used permissible data to reach its conclusion.C OURT N O . 03-00280 P AGE 18

Second, A

BMA arg ues that the IT C “ignor

ed” qua ntity data and argume nts made w

ith
respect thereto . It is

clear f rom the F inal Dete

rmination that the I TC neithe r ignor ed the qua

ntity data in the record nor disregar ded relevant arguments presente d by the parties. I n a section titled
“Data I ssues,” t

he I TC discuss ed its dec ision to re ly “ primaril y,” not exclusively , on value data in the record. The I TC itself expressed that it “considered quantity da ta where appropriate.” Final Determination at 15. Indeed, the ITC discussed quantity

data as it related to demand, apparent domestic consumption, and shipments. See, e.g. , Final Determination at 17 n.75, 18 nn.81–83, 22 nn.111, 114. Moreover, the ITC plainly considered the parties’ argume nts with respect to the question of whether to use value or quantity data to measure apparent domestic consumption, domestic shipments, and the volume of subject imports. Id . at 13–14 (articulating ABMA’s, a domestic producer’s, and the respondents’ arg uments for and against the use of value and quantity data). While the I TC reached different conclusions with respec t to the use of the various data, there is every

indication that it took ABMA’s arguments into account. Thus, ABMA’s claim is wi

thout meri

t.

Finally, AB MA’s argument that the I TC failed to take into consideration the characteristics of the marketplace , such as the importance of price, is unpersuasive. I n the Final Determi nation, the IT C discusse d the cond itions of c ompetition

at leng th, and ha d before it information with respect to the importance of price in purcha sing decisions. See Final Determination at 19. For example, the IT C determined on the basis of questionnaire responses that “[p]rice is a moderately important fa ctor in purchasing decisions for ball bearing s.” Id . In reachi ng this de terminat ion, it fou nd persua sive thatC OURT N O . 03-00280 P AGE 19 [o]nly nine purchasers ranke d [price] as the most important factor . . ., but 21 ranked i

t second a nd 18 ran ked it thir d; quality was ranked as the most important factor by 31 respondents. Of the 22 purch asers th at changed supplie rs, 11 men

tioned pr ice as a reason for their change; other cited reasons were poor delivery and quality or perf ormance problems

. Id . (citati ons to rec ord omitte d). “I t is the Commi ssion’s ta sk to eval uate the evidenc e it colle cts during its investigation. Certain decisions, such as the weight to be a ssigned a particular piece of evidence, lie at the core of that evalua tive process.” United States Steel Group , 96 F.3d at 1357. Here, the ITC consider

ed how price sensitive the ball bearing marke t reportedly wa s, examined the evidence, and drew a differ ent conclusion than the one reached by ABMA. That being the case, it is clear from the r

ecord that the ITC took the charac teristic s of the ma

rketpla ce into account. Thus, the court finds no error in the ITC’s conclusion with respect to the price sensitivit y of the ball b earing

market. Theref

ore, as t he evide nce on the

record reasona bly supports the ITC’s conclusion that the volume of the subject imports, as mea sured by value , was not significant, it is sustained.

2. Price Eff

ects The I TC’s pric e effe cts dete rmination require s an eval

uation of whether : (I) there ha s been significant price underselling by the imported mercha ndise as c ompared

with the pr

ice of domestic lik

e products of the United States, and (II ) the effect of imports of such merchandise othe rwise depresses prices to a significant degre e or prevents price increases, whic h otherwise would have occurred, to a sig nificant degree. 19 U.S.C. § 1677(7)(C)(ii). Here, the I TC concluded that the subject imports did not haveC OURT N O . 03-00280 P AGE 20

9 A description of each of the fifteen products, including the model number, components, dimensions, and “ABEC” (Annular Bea ring Engineering Committee) tolera nce or precision grade, is contained in the Staff Report. See Staff Report at V-3–V-4. ABEC tolerance refers to a product’s level of running accuracy and speed capability . The higher the tolerance, the greater the running a

ccuracy and high speed capability

. Id . at I-6 n.11. significant price effects. See Final Determination at 27. In re aching this conclusion, the ITC gather ed data f or twelve complete ball bea ring pr oducts an d three l oose ball

bearing ball products

. 9 See id . at 23 (citing Staff Report at V-3–V-4).

With respect to underselling, the ITC found tha t the subject imports had many times undersold the domestic like product, frequently by larg e margins. However, “there was no consistent correlation between subject import prices and domestic like produc t prices.” Id . at 24. Thus, underselling was not found to be significant. I n addition, the ITC found “no clear ne xus between underselling and loss of domestic sales.” Id . at 25. The IT C observe d that “[d]omestic sales quantities fell similarly both for products where subject imports undersold the domestic like product and for products for which there we re no reported sales of subject imports,” and “confirmed allegations of domestic sales and r evenues lost to subject imports over the POI are insignificant, amounting to less than one percent of the va lue of domestic producers’ commercial shipments over the period.” Id . (citing Staff Rep ort, tbls. V -45–V-5 6, V-21, V -22). With respect to price-suppression and price-de pression, the ITC found that “[t]he record . . . does not support a conclusion that subject imports suppressed or depressed prices for the domestic like product to a significant degree ,” noting that “[t]here is no consistent correlation between the presence of subject imports and the erosion of price s for the domestic like product.” Id . at 26. The ITC acknowledg ed that declines in domestic prices for some products coincided withC OURT N O . 03-00280 P AGE 21

10 To illustra

te, the I TC noted: Had the d omestic in

dustry maintaine d the same

price a nd the same market share in 2002 as it had commanded in 2000 for products 1, 3, 5, 7, 8, 9, 11, and 12 sold to end users, the increase in revenue would have been less than $8.0 million. The domestic industry ’s commercial sales in 2002 were $1.734 billion. Final Determination at 26–27 (citations to record omitted). underselling by

the subject imports. Id . “[H]owever, for three of these products . . . the subject imports lost sales as well.” Id . The ITC also examined the domestic industry ’s revenue losses and found them to be “modest in light of the size of the ball bearing mar ket.” 10 Id . The ITC found that the observed declines in some domestic prices occurr ed during a time when apparent domestic consumption contracted and demand declined. Id . at 27. The ITC thus concluded that the subje ct imports

did not hav e signif

icant pr ice eff ects.

ABMA attacks the reliability and usefulness of the pricing data on which the I TC based its price effects determination. First, ABMA c ontends that the sample of products for which the ITC collected pricing

information “represented an arbitrar ily small sample of the thousands of ball bearing models sold in the U.S. market . . . .” Pl.’s Mem. at 23; Pl.’s Reply at 6 (“The ITC did not analyze a broad e

nough sample of products to make an informed judg ment on the impact of Chinese

imports on d

omestic pr

ices.”) . ABMA a

rgues t hat the I TC collected data

for only seven complete ball bearings beca use, of the twelve complete ball bearings, five differed from the other seven only

based on whether they

had a tolerance of ABEC 1 or AB EC 3—a distinction
ABMA contends is w

ithout commercial s ignific ance. Pl. ’s Mem. a t 23–24; Pl.’ s Reply

at 8 (“The practica

l harm of t

he I TC’s err

or in sepa rating ABEC 1 ba

ll bearin gs from ABEC 3 ba

llC OURT N O . 03-00280 P AGE 22

11 ABMA me

ntions in pa ssing tha

t by segre gating

ABEC 1 da

ta and AB EC 3 data the ITC departed fr

om prior practice without explaining why it did so. Pl.’s Mem. at 24. The ITC rejects ABMA’ s contention, arguing “the I TC has no practice of including particular model numbers or specifications in pricing product lists.” Def.’s Resp. a t 26 n.10. ABMA cites no authority for this po sition in its memorand um, and the

single I TC investig

ation cite d in its Comments on Draft Questionnaires at 5 n.8 is not enough to establish a “practice .” Therefore, the cour t is unconv

inced by ABMA’s argume nt. bearings is that, by

collecting information that was commercially meaningless, it tainted the questionnaire pricing data and rende red its subsequent conclusions unsupported by substantial evidenc e.”). A

BMA asse

rts that “ [w]ith thousa

nds of pro duct ty

pes in the industry , [the I TC’s] decision to limit the number of products to only 7 complete ball bea ring part numbers and three types of loose balls would nec essarily y ield unrepresentative and unreliable pricing data.” 11 Pl.’s
Mem. at 25.

Next, ABM

A assert s that the I

TC committe d legal

error by f

ailing to investig ate wha

t it characterizes as certain “discre pancies” between publicly available data from the Bureau of Labor Statistics (“BL S”) and the data collected by way of que stionnaires. See Pl.’s Mem. at 25; Pl.’ s Repl y at 8 (cit ing Timken Co. v. United States , 264 F. Su pp. 2d 1264 , 1280 (20 03)) (“ [BLS] data poin ted to fla ws in the da

ta the ITC staff c ollected , and . . . t he I TC was legally

require d to investig ate thes e discre

pancies .”). I

n procee dings be fore the

ITC, A BMA pre sented B LS dat

a which it claimed showed, inter alia , that the “prices for radial ball bearing s fell approximately 10
percen t” from 20 00 to 2002 a

nd that “prices fo

r other ty pes of an tifriction bearin

gs ge nerally rose by vary ing amounts.” Final Determination at 25 n.130 (citing Staff Re port, figs. V-37 & V-38).
ABMA ar

gued th at these

data supp orted the

conclusi on that sub

ject impor

ts depre ssed dome stic prices because radial bearing s accounted for almost all of Chinese imports. Id . The ITC rejectedC OURT N O . 03-00280 P AGE 23

12 ABMA al so conten ds that “the Commission

misinterpreted th e [Avera ge Unit Value or “AUV”] data for the ball bear ing models for which questionnaire pricing da ta were compiled .” Pl.’s Me

m. at 23. I

n respons e, the I

TC asser ts: The I TC did not ba se its pric e effe cts findin gs on av erage

unit values. Rather, for each of the 15 specif ic products, the ITC compared the weighted aver age sales price of the spec ific imported product in the specific quarter with the weighte d average price of the same domestic p

roduct f or the spe cific pr

oduct in the specif

ic quarter. Def.’s Resp. at 32. It appe ars that the ITC compare d weighted-averag e f.o.b. prices and quantities of the domestic like product and the subject imports for each quarte r in the period of investigation. See Staff Report at V-3–V-22. There is no refer ence to AUVs in the Final Determination. ABMA’s argument is thus misplaced. this conclusion “in the absence of significant information on marke t conditions pertaining to the other types of a

ntifriction bearings.” Id . ABMA urges the court to find that the I TC acted arbitra rily by r ejecting the BL S data without invest igating “the app arent di screpa

ncy betwee n its arbitrary narrow selection of pricing data a nd the publicly available da ta.” Pl.’s Mem. at 26.

Finally, AB MA takes issue with the ITC’s finding that “ the fact that domestic prices for certain pricing products (e.g. , produc ts 13, 14, 1 5) fell de spite no r eported subject im

port sale s in those categories would tend to support the . . . conclusion . . . that factors other than subject imports were affecting price s.” Final Determination at 25 n.130. In this re gard, ABMA arg ues that “the ITC inappropriately relied on declining prices for domestically produced balls , for which there were no competing imports, to conclude that the declining prices of complete ball bearings were not caused by subject imports.” 12 Pl.’s Reply at 9 (emphasis in origina l).

The I TC argu

es that e ach of A

BMA’s c ontention s is without merit. F irst, the I

TC claimsC OURT N O . 03-00280 P AGE 24

that “the individual products for which the IT C obtained pricing information reflected a reasonable sample of total sales of the subject imports and domestic like product.” Def.’s Resp. at 25. The ITC states it collected pricing information for fifteen products, including twelve complete ball bearings (not seven as AB MA contends) and three loose ball bearing balls, broken out by distribution channel (i.e., sales to end use rs and sales to distributors). The data collected “permitted a total of 30 potential comparisons in each of the 12 quarter s for which price data was requested.” Id . at 26. The products selected “focused on the interse ction of the Chinese product [comprised mostly of radial ball bear ings] and the competing, radial portion, of the domestic like product . . . .” Id . at 26–27. Thus, “the 15 products represent a very significant sample, particularly in ter

ms of competition between the subject imports and the domestic like product.” Id . at 27. Second, with respect to the relevance of the products’ ABEC tolerances, the ITC notes that “the higher tolerance (AB EC 3) reflects greater r unning accuracy

and higher speed capability.” Id . at 26 (citing Staff Report at I -6 n.11). “Therefore, ABE C tolerance differences indicated likely price

difference between items that otherwise ha ve the same model number, components, and dimensions.” Id

.

Next, the I

TC addre sses ABM

A’s arg ument tha t BLS data indi cated su

bject imports depressed domestic prices. The ITC “examined . . . price data published by the Bureau of L abor Statistics ,” and did

“not rea ch [the] con

clusion [tha

t the subje ct imports

depress ed domest

ic prices] in the absence of significant information on marke t conditions pertaining to the other typ es of ant

ifriction bearin

gs.” F inal Dete

rmination at 25 n.13 0. In

other words, the B LS dat a did not cover as wide a spectrum of merchandise a s the questionnaires or provide information onC OURT N O . 03-00280 P AGE 25

13 ABMA confirmed that it “does not contend that the ITC was required to rely on [BLS] data.” Pl.’s Reply

at 8. the condi tions of the

marketp lace. I

n addition , the I TC points ou t that AB MA does no t contest the ITC’s decision not to rely on BLS data. 13 See Def.’s Resp. at 28. As such, “any conflict plaintiff perceives between other re cord information and the BL S data was resolved with the ITC’s uncontested determination that it could not assign the BLS data the weig

ht advocated by the domestic producers.” Id

.

Finally, the I

TC argues that its consideration of domestic prices for loose ba ll bearing balls in reaching its conclusion that “factors other than subjec t imports were affecting prices,” Final Determination at 25 n.130, was proper for the following reasons. First, “the scope of the subject merchandise and the domestic like product included antifriction balls and othe r parts of ball bearings as well as complete ball bear ings.” Def.’s Resp. at 29 (citing Fina l Determination at 4). Second, “[t]he decline in prices for [loose ball bearing balls] notwithstanding the absenc e of competing subject imports is certainly relevant when the issue is whether prices of the domestic like product were depressed by the subject imports.” Id . at 30. Th ird, the “ refer ence to products 13, 14 [and] 15 was an illustration of information on the record that contradicted the inference plaintiff sought by emphasizing the BLS data.” Id . The I TC argu es that it s upported its price e ffects d

etermina tion with a

discussion of the r

ecord e vidence , e.g., increa ses in dome stic prices for several products where there was competition from the subject imports, significant sales of the subje ct imports

in but a fe

w categories, mo dest rev enue loss es to the d omestic industry in light of the over all market, and other market conditions such as a decline in dema nd.C OURT N O . 03-00280 P AGE 26

Id . at 32. Thus, the ITC urge s the court to find that its price effects finding is supported by substantial evidence and otherwise in accordanc e with law.

It is clear that the I

TC was justified in its conclusions with respect to price correlation. Based on the data collected, the I TC made price comparisons and found that although the subject imports undersold the domestic like product, there was no consistent correlation betwe en the prices o f the dome stic like product a nd the com

peting s ubject imp orts. With r

espect t o underselling, the ITC found:

For several products, prices for the subje ct imports and the domestic l ike produ

ct did not move in the s ame dire ction. Thi s is also true on an aggreg ated bas is. According to aggr egate data present ed by petitione r ABMA f

or eigh t ball bea ring pr oducts sol d to end users for which data on U.S. and Chinese products were obtained, domestic prices for complete ball bearing s, when weighted by

volume, actually rose

between 2000 and 2001, as subject im

port pric es droppe d, and we re esse ntially the same in 2002 as in 2 000. Ag greg ate pric es of subj ect impor ts for the same eight pr oducts fe ll by

6.1 perc ent betwe en 2000 a nd 2002. Th

is apparent lack of correlation is confirmed by the pricing data for products for which no sales of subject imports were repor ted. Domestic prices for sales of products 13, 14, and 15 all declined alt hou gh n o su bj ect im por t s ale s we re r epo rte d du rin g th e PO I. Final Determination at 24–25 (citations to record omitted). Similarly , with respect to pricesuppression and price-depression, the ITC found:

For several products where ther e was competition from the subject imports, prices for the domestic like product actually rose during the POI. We are mindful of petitioner’s ar gument that such increases in prices were ca used by the loss of volume discounts as large-volume sales were lost to subject imports, leaving higher prices for smaller sales volumes. However, there were few product categ ories in w

hich subje ct imports

gained sufficie nt sales, indicating that these sales were not being lost to subject imports onC OURT N O . 03-00280 P AGE 27

14 The following pr

oducts competed wi

th the dome stic like product: products 1 (Staff Report, tbl. V-1), 3 ( id ., tbl. V-4), 5 ( id ., tbl. V-6), 7 ( id ., tbls. V-7, -8), 8 ( id ., tbl. 9), 9 ( id ., tbls. V-11, -12), 11 ( id ., tbls. 14, -15), and 12 ( id ., tbls. V-16, -17).

price c ompetition . For exa mple, for product 3 to end use

rs, product 5 to end use

rs, produ ct 7 to distr

ibutors, a nd product 11 to end users, sales volume for both the domestic like product and subject imports fell over the POI. The pric e reported for end-user purchases of domestically produced product 1 rose by 27.6 percent between the first quarter of 2000 and the four th quarter of 2002, and sales fell by 76.3 pe

rcent, or by

5.0 million units. Sales of the subject im

ports ros e by

only 172,099 un

its. Id . at 26 (citations to record omitted). The evidence on the re cord, as summarized in the Staff Report, supports these findings.

Turning to ABMA’s arguments, the c ourt finds, as an initial matter, that the ITC collected data fo r fift een pro ducts , incl udin g twelv e comp lete b all be arings 14 and three loose ball bearing balls. ABMA’s main complaint with respect to the sample of products the I TC selected is that the ITC distinguished otherwise identical pr oducts by ABEC tolera

nce, which, in ABMA’s view, was not a commercially

significant distinction to make. However, it appears that distinctions among various ABEC classes are c ommercially sig nificant. See Staff Report at I-6 n.11 (“Tolerance classes are

1, 3, 5, 7, and 9 (higher numbered classes c orrespond to higher toler ances) ; thes e class es defi ne the mini mum an d max imum manuf acturi ng ranges for bea rings (for example, such tolerances govern the allowable variation limits on bore size, diameter, width, and thickness as well as other error limitations).”). I n this case, the pricing information gather ed from questionnaire responses revealed pric ing distinctions among otherwise identical products. For examp le, produ

ct 1 and pr

oduct 2 ar e both des cribed a s “608ZZ-Radi al ball be aring, singleC OURT N O . 03-00280 P AGE 28

15 Over the period of investigation prices for pr oduct 1 ranged between $0.48 and $0.64 per unit, whereas prices for product 2 ra nged between $0.27 and $0.33 per unit. Staff Report, tbls. V-1, V-3. row, deep groove. 8mm bore, 22mm OD, 7mm width, with two shields,” but differ in that product 1 has an ABEC tolerance of 1 and pr oduct 2 has an ABEC tolerance of 3. Id . at V-3 . In sales to end users, these products commanded differe nt prices quarter to quarter. 15 Compare Staff Report, tbl. V-1 with tbl. V-3. Thus, the court agrees with the I TC that “distinctions based on ABEC tolerances [were] meaningful in the price analysis . . . .” De f.’s Resp. at 26 n.10. The court finds no error on the I TC’s part in distinguishing products by ABEC tolerance.

ABMA also argues that the sample of pr oducts selected by

the ITC is not representative of the ball bearing market as a whole . While it is the ITC’s burden “to collect all data nece ssary to its investigation,” generalized allegations that a sa mple of products is not representative are not enough to meet the threshold requirement to support such a claim. Kern-Liebers USA, Inc. v. United States , 19 CIT 87, 113, 114–15 (1995) (not reported in the F ederal Supplement), aff’d sub

nom United States Steel Group v. United States , 96 F. 3d 135 2 (Fed. Cir. 1996) (citi ng Gen. Motors Corp. v. United States , 17 CI T 697, 703, 827 F. Sup p. 774, 781 (1993)) . Rather, ABMA must “point[ ] to . . . quantitative evidence to indicate that the sampled data relied on by the Commission was not representative.” United States Steel Group , 96 F.3d a t 1366; see also KernLiebers , 19 CIT at 114–15 (finding “g eneralized affidavits” submitted by plaintiff “were of
uncerta in probat ive value and lack ed much of

the spec ific information the Commission uses in conducting pricing comparisons.”). He re, ABMA asserts that there were “thousands of product types in the industry,” and that the ITC’s sample “would necessarily y ield unrepresentative andC OURT N O . 03-00280 P AGE 29

16 In Timken , the cour t conclud ed that th e IT C’s findin

g reg arding

foreig n produc ers’ high capacity

utilization rates could not be sustained. The ITC had based its capa city utilization finding on questionnaire responses and had reje cted secondary information presented by Timken on the ground that “the reporting basis used in such [seconda ry] data was undef

ined.” Timken , 264 F. Sup

p. 2d at 12 80. The c ourt rema nded the matter to t

he I TC, reas oning: “With this impetus, it is logical to find that the Commission erred by not inquiring into the basis used by the [foreign] producers to report their capac ity.” Id . In other words, the court f ound that under the ITC’ s own rea soning, it had acted incon sistently . The I TC had re jected c ertain d

ata bec ause its reporting basis was undefined, y et it had made no effort to define the reporting basis of the questionnaire data it affirmatively relied upon. unreliable pricing data,” but cites no rec ord evidence to support this claim. Pl.’s Mem. at 25. This broad allegation is not specific enough to mee t the requisite threshold showing. Moreover, the court notes that the selection of products chosen by the ITC encompasses many of the products proposed by A

BMA in its Comments on Draft Questionnaires, e.g., products 3, 4, 5, 6, 7, 8, 9, and 10. See Petitioner’s Comments on Draft Questionnaires, Pub. R. Doc. 53 at 5–6. Thus, AB MA has fa

iled to mak

e the re quisite thr

eshold sho

wing to e stablish that the sa mple selected by the

ITC was unreprese

ntative.

The cour t next turns t

o ABMA’ s argument that the IT C failed t o provide the leg ally required explanation of how it reconciled the discrepanc ies between the pricing data it collected and the pu

blicly availab le data. ABMA ci tes Timken Co. v. United States , 264 F. Supp. 2d 1264 (2003), for the proposition that “where the ‘I TC actively prec ludes itself from receiving relevant data or [m]akes no effort to seek relevant [contrary ] data . . . then such actions will be found to be contrary to law.’” 16 Pl.’s Mem. at 26–27. The Timken court quoted this language from Mitsubishi Electric Corp. v. United States , 12 CIT 1025, 1058, 700 F. Supp. 538, 564 (1988), aff’d 898 F.2d 1577 (Fed. Cir. 1990), where the cour t reviewed the ITC’s de cision to invoke theC OURT N O . 03-00280 P AGE 30

17 At the time

of that de cision, 19U.S.C. § 167 7(4)(D) read as follows: The eff ect of su bsidized or

dumped imp orts shall

be asses sed in relation to the Unit

ed States producti on of a lik

e product if available data perm it

the sepa rate ide ntificat ion of pro duction in terms of such crit

eria as the productio n process or the producer’s profits. If the domestic production of the like produc t has no separate identity

in terms of such criteria, then the effect of the subsidized or dumped imports shall be assessed by the examination of the pr oduction o f the nar

rowest g roup or r ange o f products, which includes a like product, for which the necessa ry information can be provided. 19 U.S.C. § 1677(4)(D) (1985) (as quoted in Mitsubishi , 12 CIT at 1057, 700 F. Supp. at 563). “product line” provision of the antidumping statute, 19 U.S.C. § 1677(4)(D). 17 The Mitsubishi court found that the ITC had fa iled in its duty to conduct a thorough inve stigation, where 19 U.S.C. § 1677(4)(D) was concerned, by not requesting reasonably available data that would have permitted the “separate identification of production,” pursua nt to the statute. The court stated: The Court

is not in a p osition to de

termine w

hat infor mation is availab le to per

mit separ ate iden tification of produ

ction, but to review t hose ty pe of dec isions lef

t to the disc

retion of the I TC. However, where the ITC actively prec ludes itself from receiving relevant data or takes no effort to seek r elevant data contrary

to § 1677(4)( D), which direct s the I TC shall assess domestic producti on where

availab le data e

xists and whe

re that d ata is reasonably

available for the IT C to collect and consider, then such actions will be found to be contrary to law. Mitsubishi , 12 CIT at 1058, 700 F. Supp. at 564 (citation omitted).

ABMA es sentially

argue s that the I

TC was not t

horoug h in its inve stigation, i.e., that it failed to investigate certain perce ived discrepancies between BL S statistics and questionnaire data. However, unlike Mitsubishi , this is not a case where the

ITC sh irked its d uty to conduct aC OURT N O . 03-00280 P AGE 31

thorough investigation, or actively avoided seeking information where it had an oblig ation to do
so. I n the Fina

l Determ ination, the IT C discusse d the data that ABM

A argu es the ITC should have re lied upon, and drew a conclu sion that d

iffere d from the

one ABM

A urge d with res

pect to price-depression. Final Determination at 25 n.130 (discussing BLS data and party

arguments). Upon cons idering

the BL S data, the

ITC st ated: We do not reach [the] conclusion [that BLS data indicate that the Subject Imports depressed domestic price s] in the absence of significant information on market conditions pertaining to the other typ es of ant

ifriction bearin

gs. More over, the

fact tha t domestic prices f or cert ain pric ing prod

ucts (e. g., pro ducts 13, 1 4, 15) fe ll despite no report

ed subjec t import sa

les in those

categ ories wou

ld tend to support the opposite conclusion; namely, that fa ctors other than subje ct imports

were affectin

g price s. Id . The ITC look ed at t he BLS dat a, fou nd it wanti ng becau se it d id no t cove r a broa d enou gh spectrum of the subject merchandise, and theref ore concluded it was not probative of the market as a whole. Because the I TC had data from the questionnaires that it felt covered the mar ket more completely, it chose to adopt the conclusion it believed was based on more complete data. Therefore, it is clear that the ITC reviewed the BL S data, sought to analy ze it in context, and reached a different conc lusion with which ABMA does not agree. The c ourt finds no error on the ITC’s part in this rega

rd.

ABMA’s remaining arg

ument, that the ITC improperly relied on information with respect to loose ball bearing balls, is similarly w ithout merit. As the ITC points out, the scope of the ITC’s investigation encompasse d “all antifriction bearings, reg ardless of size, precision grade, or use, that employ balls as the rolling element (whether ground or ung round) and parts thereofC OURT N O . 03-00280 P AGE 32

18 ABMA obj ects, ar guing that loose

ball bea ring ba lls compose d, by

value, “ only .33 percent of the total U.S. market in 2002,” and thus does not constitute support for the finding that Chinese ball bearings did not cause price dec lines. Pl.’s Mem. at 27. Pricing data for products 13, 14, an

d 15 acc ounted for 3.4% of domestic p

roducer s’ sales, and thus, a

ccordin g to the ITC, 0.33% was a meaning ful percentage. Def.’ s Resp. at 30. The court finds that the use of this evide nce is jus tified in l ight of o ther evi dence te nding to s upport the

ITC’ s claims. (inner ring, outer ring, ca

ge, balls , seals, shields, etc.) that are produced in China.” Staff Repor t at I-1 n.1 (emphasis added) . Therefore, the I TC acted consistently with the scope of the investigation in examining pricing for loose ball bearing balls. The ITC relied on such information in its price effects analy sis to confirm a lack of correlation between domestic pric es and the price of subject imports. See, e.g. , Final Determination at 25 (“This apparent lack of correl ation is confirmed by the pricin g data f or produc ts for whi ch no sale s of subje ct imports were reported. Domestic prices for sales of products 13, 14, and 15 all declined although no subject im

port sale s were r

eported during t he POI .”); id . at 25 n.130 (“Moreover, the fact that domestic prices for certain pricing pr oducts (e.g., products 13, 14, 15) fell despite no reporte d

su bj ec t i mp or t s al es in th os e c at eg or ie s w ou ld te nd to su pp or t t he op po si te co nc lu si on ; n am el y, that factors other than subject imports were affe cting prices.”). 18 The ITC’s discussion of price decline s for loos e ball be aring b all produ cts clea rly served a s additional suppor t for its conclusi on that “f

actors o ther tha

n subject imports we

re aff ecting prices, ” and wa s not the so le basis for its price effects finding. See Final Determination at 25 n.130. In a ddition, the ITC considered sales of products where the subject imports did compete with the domestic like products and found increases in domestic prices even w here some subject import prices dropped. Fin al D ete rmi nat io n at 26 ( cit in g St aff Rep ort , t bl s. V -1 ( pro duc t 1 ), V -15 (pr odu ct 1 1)) . In accordance with its authority to determine the significance and weig ht of any par

ticular piece ofC OURT N O . 03-00280 P AGE 33

evidence, the ITC wa s justified in finding that declines in domestic prices of loose ball bearing balls, despite the absence of imports, were meaning ful in determining whether the subject imports were adversely

impacting domestic prices. See United States Steel Group , 96 F.3d at
1357.

3. Impact When examin

ing the i mpact of imports on t

he domest

ic industr y, t he I TC is requ

ired to evaluat e: all relevant economic factors which have a bearing on the state of the industry in the United States, including, but not limited to— (I) actual and pote

ntial decline in output, sales, market share, profits, productivity, return on investments, and utilization of capacity , (II ) factors affecting domestic pr ices, (II I) a ctual an d potentia l negat ive eff ects on c ash flow, inventor ies, employment, wag es, growth, ability to raise capital, and investment, (IV) actual a

nd potential negative effects on the existing de ve lo pm en t a nd pr od uc ti on ef fo rt s o f t he do me st ic in du st ry, including efforts to develop a derivative or more advanced version of the domestic like product, and (V) in [an antidumping duty] procee ding . . ., the magnitude of the margin of dum ping. 19 U.S.C. § 1 677(7)( C)(iii). T hese fa ctors must

be evalu ated “within the c ontext of the business cycle a nd conditions of competition that are distinctive to the affected industry .” Id

.C OURT N O . 03-00280 P AGE 34

Here, the ITC found that the subje ct imports did not have a significant adverse impact on the do mesti c indu stry, saying:

The domestic industry rema ined profitable throughout the POI

. Operati ng inco me as a pe

rcenta ge of net sales was 4.4 pe rcent in 2002, although it w as down f rom 6.9 pe

rcent in 2000. Some erosion in the position of the domestic industry occur red over the POI. Shipments for all bearings de clined, whether measured by value or by qua

ntity, as did net sales. Capacity utilization rates declined. The number of production and related wor kers declined, as did hours worked and total wages paid, althoug h hourly wag es increased. Productivity a lso fell. Not all performance and financial indicators f or the U.S. industry decline d throug

hout the PO I. The marke t share held by

domestic produce rs, produ ction ca pacity for comp lete ball

bearing s, and unit values of domestic shipments a

ll increa sed over

the peri od, as did the value of domestic producers’ shipments between 2001 and 2002. Total capital expenditures fell during the POI , but five of the 20 reporting producers incurred substantial a mounts of capital expenditures during each y ear of the POI. Expenditures on research and development declined ove r the POI but were somewhat higher in 2002 than in 2001. Additionally , a significant number of firms, including not only [certain] companies, which face little or no competition from subject imports, but also [other firms], who are members of ABMA, answere d in the negative when ask ed if the firm had e

xperienc ed any

actual negativ e effe cts on its retu rn on its investment or

its grow th, invest ment, abi lity

to raise capital, existing development and production efforts, or the scale of capital investments, as a result of subject imports. The current decline in the performanc e of the domestic industry has occurred during a per iod of reduced demand. I ndeed, the drop in apparent domestic consumption, at 10.0 percent, was sharper than the decline in the value of domestic shipments, which declined by only

8.0 percent during the same time period. The domestic industry did not lose market share to subject imports, but rather gained market share. Th e incre ase in the market share hel d by subjec t imp orts o ver th e POI was l ess th an one percen tage point. The total increase in the value of subject imports ofC OURT N O . 03-00280 P AGE 35 complete ball bearings, ball bearing balls, and other ball bearing parts was equivalent to only 6.2 pe rcent of the decline in the total value of domestic shipments d

uring the POI . Subject i

mports did not have a significant negative e ffect on the price received f or the domestic like product. We alrea dy have foun

d that nei ther the volume nor

the incr ease in volume of

subject im

ports was signific ant and that subject imports did not have a significant effect on the pric e of the domestic like product. In light of those finding s, we do not find that subject imports ha

ve had a signific ant adve

rse impac t on the domestic industry producin g the do mestic lik

e product. Final Determination at 28–30 (citations to record omitted).

ABMA argues that the I

TC’s impact determination is neither supported by substantial evidence, nor is otherwise in accordanc e with law. With respect to compliance with 19 U.S.C. § 1677(7)( C)(iii), A

BMA arg ues that the IT C gave n

o indicat ion in the F inal Dete

rmination that it considered each of the factors r equired under the statute, and that the I TC did not consider the impact factors in light of the business cy cle and conditions of competition in the industry. See Pl.’s Mem. at 29, 31. With respect to whether substantial evidence supports the I TC’s impact determination, ABMA argues that the I TC ignored evidence with respect to “de clines during the POI in (1) oper ating income as a

percen tage of net sale s, (2) domestic shipments, (3 ) net sale s, (4) capacity

utilization, (5) employment, (6) total wag es, (7) productivity, (8) total capital expenditures, and (9) research and deve lopment expenses.” Id . at 29. In addition, ABMA arg ues that the ITC erroneously

“relied upon a 4.4 percent operating income to net sales as evidence of profitability,” a per

centage that “was . . . considera bly lower than the industry ’s historical profitability levels of betwe en 6-8 percent and the levels during the 1989 antidumpingC OURT N O . 03-00280 P AGE 36

investigation, when the Commission determined that the industry was injured.” Id . at 30 (footnote omitted). ABMA further arg ues that the ITC “appea

rs to have erroneously

concluded that the industry’s neg ative economic factors were the re sult of a decrease in demand,” but that other record evidence “contr adicts this conclusion.” Id

.

Moreove r, ABMA argue s that the I

TC misappli ed its ca

usation a naly sis by allege dly “subjugat[ing] its consideration of impact to its consideration of volume and price eff ects . . . [thus] fail[in

g] to expla

in its anal ysi s.” Pl.’s M em. at 33–

34. ABMA

contends that this is apparent from the Final Determination, where the ITC stated: We alrea dy have foun

d that nei ther the volume nor

the incr ease in volume of

subject im

ports was signific ant and that subject imports did not have a significant effect on the pric e of the domestic like product. In light of those findings, we do not find that subject imports hav

e had a sign ificant adv

erse impa ct on the d

omestic industry producing the domestic like product

. Id . at 33 (quoting Final Determination at 22) (emphasis as in Pl.’s Mem.). AB MA argues that the language of the I

TC’s impact determination clearly shows that the ITC “considered impac t on the domestic market to be a product of the other two mandatory factors, rather than an independent factor deserving its own consider ation.” Id

.

With respe ct to comp liance w ith 19 U.S.C. § 1677(7) (C)(iii) , the I TC argu es that it i s clear from the Final Determination that it considered the statutory impact fac

tors and took account of the condition of the industry in light of the business cyc le and conditions of competition. See Def.’s R esp. at 33 –35 (quoti

ng Fina l Determ ination a t 28–29, 29

–30). As i

tC OURT N O . 03-00280 P AGE 37

considered the factors enumerated in the statute, the ITC argue s that there is no basis for ABMA’s argument that it failed to consider the impac t of the subject imports as an independent factor in its causation analy sis, and not just as a product of its volume and price effects findings. Id . at 36–37.

As to ABMA’s substantial evidence argume nts, the ITC states that it is “under no obligation to place dispositive weight on the pieces of information hig hlighted by plaintiff or

the interpretations plaintiff would attach to those piece of information.” Def .’s Resp. at 33. The ITC asserts that it did not, contrary to AB MA’s assertion, “find that reduced demand was the c ause of any injury but, rather, that the industry pe rformed better than would have been expected in the face of reduced demand, a nd that the subject imports did not have a significant negative e ffect on the price received for the domestic like produc t.” Id . at 35.

The cour t finds tha t the I TC complie d with 19 U. S.C. § 1677( 7)(C)(i ii) in maki ng its impact determination. Contrary to ABMA’s argument, it is clear that the I TC considered each of the fac tors enumerated

in the stat

ute and the eviden

ce on re cord con

cerning the domes tic industry ’s financial and

perfor mance in dicator s. For example, ba sed on evidence s ummarized

in the Staff Report, the IT C found tha t the evid ence ind icated d eclines in opera ting inc ome as a percentage of net sales, shipments, ca pacity utilization rates, the number of produc tion and related workers, hours worked, total wag es paid, and productivity. F inal Determination at 28–29 (citations to record omitted). However, it also found that the domestic industry remainedC OURT N O . 03-00280 P AGE 38

19 ABMA obj ects to the signific ance of

the I TC’s conc lusion tha t the dome stic industry remained pr

ofitable despite a decline in profitability during the period of investigation, arguin g that pr ofitabili ty w as “cons iderabl

y lower than

the indust

ry ’s histori cal prof

itability levels . . . .” Pl.’s Mem. at 30. In the Final De termination, the ITC observed that “[o]perating income as a percentage

of net sales was 4.4 percent in 2002, although it was down fr om 6.9 percent in 2000.” Final Determination at 28. A decline in prof itability over the period of investigation would not in itself detract from the finding that the domestic industry “remained profitable,” as the overall profitability rate for the domestic industry in 2002, 4.4% operating income to net sales, was positive, thus indicating some level of profitability

. See Staff Report at VI-3 (“Thirtee

n producers out of the total of 20 had an operating income for all periods and no produce rs had an operati ng loss f or the en tire per iod.”); id ., tbl. VI-2. Moreover, that the domestic industry’s profitability levels here were lower than they were found to be in a prior investigation, where the I TC found material injury by reason of imports, does not undermine the ITC’s finding. As this court has held, “ [f]indings in related determinations regarding thre at or material injury ar

e generally

not dispositive on subsequent determinations. . . . [T]he Commission does not and cannot determine a specific profitability level injurious because the statute directs the Commission to evaluate a number of factors in determining the condition of the domestic industry.” Torrington , 16 CIT at 226, 790 F. Supp. at 1169 (citations omitted). That is, e ach of the IT C’s deter minations i s sui gener

is

. See Comm. for Fair Beam Imps. v. United States , 27 CIT __, __ slip op. 03-73 at 20 (June 27, 2003), aff’d without opinion 95 Fed. Appx. 347 (Fed. Cir. 2004) (citation omitted) (“[I]t is [a] well-established proposition that the ITC’s material injury

determinations are sui gener is ; that is, the agency ’s findings and determinations ar

e neces sarily

confine d to a spec ific per iod of inve stigation with its a ttendant , peculiar set of circumstances.”). Ope rating income as a percentage of net sales is one factor among t hose t he ITC mu st con sider in mak ing it s imp act det ermin ation . Here, even t hough operating income as a perce ntage of net sales was lower than it has be en in the past the ITC found that the domestic industry “re mained profitable.” The court finds no error with the I TC’s impact de terminat ion in this r

espect.

20 Of the twenty c ompanies that responded, six of them answered “No” to the ITC’s question of whether the firm had experienced “any actual negative effec

ts” on return on investment, growth, ability to ra ise capital, existing development and production efforts, or (continued...) profitable during the period of investigation, 19 id ., and not ed incre ases in th e domestic produce rs’ market share, pr

oduction c apacity

for comp lete ball

bearing s, unit val

ues of domestic shipments, and the value of domestic producers’ shipments. Id . Signifi cantly, some dome stic firms responded to ITC questionnaires indicating that they had not suffe

red any ne gative impact by

reason o f the subj ect impor ts. 20 See Staff Rep ort at D- 3. The und erly ing rec ord supports theseC OURT N O . 03-00280 P AGE 39

20 (...continued) capital investments “as a result of imports of ball bearings fr om China.” Staff Report at D-3. findings. In addition, the statute itself makes it clea r that “[t]he presence or absence of any factor which the Commission is required to evaluate under [19 U.S.C. § 1677(7)(C)] . . . shall not necessarily

give decisive guidance with re spect to the determination by the Commission of materia l injury .” 19 U.S. C. § 1677(7 )(E)(ii ); Comm. for F air Beam I

mps. , 27 CIT at __, slip op.
03-73 at 36 ( quot ing Am. Spring Wire Corp. v. United States , 8 CIT 20, 23, 590 F. Supp. 1273, 1277 (198 4)) (“[T ]he IT C is not req uired to a ccord more weig

ht to any factor of impact analy

sis at the expense of other factors. Specifically , ‘[n]o factor, standing alone, triggers a per se rule of material injury.’” ).

Next, the court does not agree that the ITC failed to consider the performance of the domestic industry in the context of prevailing ma rket conditions during the period of investigation, as it is required to do by the statute. Indeed, such conside ration is at the heart of the I TC’s ana

lys is. In the Fina l Determ ination, the IT C recite d the cond itions of c ompetition

in the industry it found releva nt to its determination. See Final Determination at 16–21 (discussion of deman d, supply , distribut ion and pr

icing, market se gmenta

tion, amon

g other economic factors). For example, the I TC took into consideration the decline in demand experienced by the domestic industry during the period of investigation. It compa red the rate at which apparent domestic consumption dropped with the decline in the value of domestic shipments, and found that the evidence showed a sharper ra te of decline in apparent domestic consumption. Final Determi nation at 29; see Staff Report at II -11 (“Most U.S. producers and importers reported thatC OURT N O . 03-00280 P AGE 40

demand f or ball be arings

was flat or decr eased du ring 200 0–2002.” ). The I TC noted th

at in spite of the reduction in demand, the domestic industry gained market share. Id. at 29–30. These finding s, toget

her with i ts finding that the su

bject imports incre ased the ir marke t share by “ less than one percentage point” ar e borne out by the r

ecord. See Staff Report, tbl. C-4-A.

ABMA is correct that volume, price eff ects, and impact each require independe nt consideration. See Pl.’s Mem. at 33. The ITC ha s not faile d in that ob ligation . Consisten t with the statute, the ITC considered the f actors enumerated in 19 U.S.C. § 1677(7)(C)(iii). Mentioning the ITC’s volume and price effects findings in the context of its impact determination doe s not nece ssarily mean tha t its impac t analy

sis was “s ubjuga ted” to its volume and price effects findings. Ac cepting this argument would require the c ourt to overlook the analysis of the impact f

actors performed by

the ITC and the findings it made with re spect thereto. At base, ABMA’s

argume nts go to t he weig ht the I TC assig

ned to the observe d decline s in

severa l of the sta

tutory factor s, such as

operati ng inco me as a pe

rcenta ge of net sales, domestic shipments, net sale s, capac ity u tilization, a

nd employ

ment indic ators. Th

is assig nment of w eight, however, is within the ITC’s discretion. Nat’l Ass’ n of Mirror M

frs. , 12 CIT at 778, 6 96 F. Supp. at 647. The court may not re weigh the evidence, or substitute its judgment for that of the
agency . Matsushita , 750 F.2d at 933. As the court finds the IT C’s impact analysis to be supported by substantial evidenc e and otherwise in accordance w ith law, it is sustained.C OURT N O . 03-00280 P AGE 41

21 The factors are: (I ) [factor pertainin g to c ounte

rvai lable subsi dies] , (II ) any existing u

nused pro duction c apacity or imminen

t, substantial increase in production capacity in the exporting country indicating the likelihood of substantially incr eased imports of the subject merchandise into the United States, taking into account the availability of other e

xport markets to absorb any additional exports, (III) a significa

nt rate of increase of the volume or marke t penetration of imports of the subject merchandise indicating the likelihood of substantially increased imports, (IV) whether

imports of the subject merchandise are entering at prices that are likely

to have a significant depressing or suppressing effect on domestic prices, and are likely to increase demand for further imports, (V) inventories of the subject merchandise, (VI) the potential for pr

oduct-shifting if production facilities in the foreign country , which can be used to produce the subject merchandise, are currently being used to produce other products, (VII)[fac tor pe

rtai ning to ag ricu ltura l prod ucts] , (VII I) the actual and pote

ntial negative effects on the existing de ve lo pm en t a nd pr od uc ti on ef fo rt s o f t he do me st ic in du st ry, including efforts to develop a derivative or more advanced version of the domestic like product, and (IX) any other demonstrable adverse trends that indicate the (continued...) 4. Threat of M

aterial In jury Next, the court turns to the ITC’s finding that the domestic ball bea ring industry wa s not threatened with material injury by reason of

the subject imports. In making its threat determination, the

ITC is directe d by

statute to consider certain factor s, 21 which must be analyzedC OURT N O . 03-00280 P AGE 42

21 (...continued) probability that there is likely to be material injury by

reason of imports (or sale for importa tion) of the subject mercha ndise (whether or not it is actually being imported at the time). 19 U.S.C. § 1677(7)(F)(i)(I)–(IX). Fa ctors I and VI

I were not rele

vant to the ITC’s determination. “as a whole in making a determination of whethe r further dumped or subsidized imports are imminent and whether material injury by reason of

imports would occur unless an order is issued or a suspension agreement is acce pted . . . .” 19 U.S.C. § 1677(7)(F)(ii). “The presenc e or absence of any

factor which the Commission is required to consider under [19 U.S.C. § 1677(7)(F)(i)] shall not necessarily give decisive guidance with re spect to the determination.” Id

. “An affirmative threat determination must be based upon ‘positive evide nce tending to show an intention to increase the levels of importation,’” not mere speculation. Metallverken Nederland B.V. v. United States , 14 C IT 481, 4 88, 74 4 F. Su pp. 28 1, 287 (1990 ) (quo ting Am. Spring Wire v. United States , 8 CIT at 28, 590 F. Supp. at 1280).

ABMA’s first cha llenge to the I TC’s thre at deter

mination f

ocuses on its finding

with respect to Chinese production capacity . Pursuant to 19 U.S.C. § 1677(7)(F)(i)(II ), the ITC found that during the period of investigation:

subject foreign producers repor tedly operate d at high rates of capaci ty u tilization a

nd devote d a signi ficant p ortion of their exports to ma

rkets oth er than t

he United States. The Chinese producers that responded to our questionnaires likely do not represent the entire Chinese industry producing ball bearings. Unreported capacity

presumably existed during the entire POI, but did not lead to a significant volume of subject imports or significant negative price e ffects. We have no basis to conclude that this situation will change in the imminent future.C OURT N O . 03-00280 P AGE 43

22 In objecting that the I TC ignored evidence that sugg ests that Chinese production capacity was much higher than it was reported to be in the f oreign producer questionnaire responses, ABMA criticizes the I TC’s use of questionnaire responses. Pl.’s Mem. at 34–35 (obje cting t o the ITC ’s use of que stio nnair e data t o conc lude t hat Ch ina wa s oper ating a t high capaci ty u tilization le

vels, ar guing that such data “is of questi onable va

lue beca use it rep resents a mere fr action of the Chines e industr

y.” ). In finding that “sub ject for eign pr oducers reporte dly operat ed at h igh rat es of ca pacit y utiliz ation ,” the ITC reli ed on r espon ses it receiv ed to f oreign producer questionnaires, acknowledging that “[t]he Chinese producers that responded to our questionnaires likely do not repr esent the entire Chinese industry producing ball bearings.” F inal Determination at 31–32 (citing Timken Prehearing Br., Vol. 1, at 38–43); Staff Report at VII-2 n.12 (noting ITC rece ived 42 useable responses out of 175 sent out to Chinese ball bearing manufacturers). The ITC “is not required to gather 100% covera ge in the questionnaire responses before it can make a dete rmination.” United States Steel Group v. United States , 18 CIT 1190, 1203, 873 F. Supp. 673, 688 (1994), aff’d 96 F.3d 1352 (Fed. Cir. 1996). Final Determination at 31–32 (citations to record omitted). Thus, the ITC relied on questionnaire
response s indicati

ng hig h capac ity u

tilization le

vels. As su

mmarized i

n the Staf f Report, questionnaire responses indicated that capacity utilization was 87.0% in 2000, 82.9% in 2001, and 85.1% in 2002, and these rates were projec ted to increase in 2003 and 2004. See Staff Report at VII -4. More over, the

record indicate s that dur

ing the p eriod of

investig ation rou

ghly two-thir ds of Chine se produc ers’ tota l export shipments of c omplete b all bear ings we nt to markets other tha

n the Unite d States, a

nd roug hly half of Ch

inese pr oducers ’ ball be aring b alls went to other markets as well. See id., tbls. VII -1-A, VII -2.

ABMA’s arguments do not persuade the court that the ITC’s analy sis is not supported by substantial evidence. ABMA contends that there is rec ord evidence that the I TC failed to take into consideration. 22 In pa rticular, ABMA di scusses w hat it dubs

“offic ial reports,” whi ch, it argues, conflict with the data reporte d in questionnaire responses. Pl.’s Mem. at 35 (citing Pl.’s Prehearing Br., Ex. 7 ( World Bearings China Outlook )). For example, ABMA argue s that theC OURT N O . 03-00280 P AGE 44

23 The Fre edonia G

roup app ears to b ase its pr ediction s on fore casts wit h respec t to supply and demand, bea

ring sales by

application, and bearing shipments by type. See Pl.’s Prehearing Br., Ex. 7 ( World Bearings China Outlook ). World Bearings China Outlook report, published

by T he Fre edonia G

roup in 200 0, predic

ts 23 increases in exports of ball bearings from China, where as the Staff Report projections indicate a decline in exports, both in quantity and value terms. See id.; Staff Re port, tbl. VII -1. This shows, in A

BMA’s vi ew, that d

ata fro m the ques tionnaire response s was unr

eliable. For its pa

rt, the ITC asserts that ABMA ha s merely “point[ed] to . . . information domestic parties place d on the record, [and] characterize[d] them as ‘official’” which in itself “doe s not establish an absence of substantial evidence support for the I TC’s finding.” Def.’s Resp. at 38.

The cour t decline s ABMA’ s invitation to rewe igh the e vidence on the re cord. F irst, it is presumed that the ITC has consider ed all of the information on the record. See Rhone Poulenc, S.A. v. United States , 8 CIT 47, 55, 592F. Supp. 1 318, 1326 ( 1984) (“ Absent so me showing

to the contrary , the Commission is presumed to have considered all evidence in the record.” ). Here, however, the brief containing the re port submitted by ABMA wa s cited by the I TC in the Final Determination. Final Determination at 26 n.134 (citing Pl.’s Prehear ing Br.). Even if it could be shown tha

t the I TC did not c onsider t his repor t, howeve r, the co urt would n

ot find tha

t it undermined the sub stantiali ty o f the re cord evi dence su pporting the I TC’s findi

ng on ca pacity utilization, because

it does not

appear to be any more re liable or

accura te than th e actua

l data obtained from the Chinese producers. Although AB MA refers to World Bearings China Outlook as an “of ficial” report, the report itself b ears no i ndicia of officia lity and is app arently

an analy sis by a private ma

rket research firm. I

n addition, although the report makes certain predic tionsC OURT N O . 03-00280 P AGE 45

about Chinese bea

ring pr oduction, it makes no

refer ence to i ts methodo logy . In p articula r, it in no way ties its conclusions to excess Chinese capa city. The weig

ht to give to a piece of evidence is a matter within the ITC’s discretion, and it is for the I TC to resolve conflicts in the record. Matsushita , 750 F.2d at 933. As noted by the ITC, no party

has come forth with evidence that unreported capacity

in China, which was apparently for production of products other than the subject merchandise, could result in the increased produc tion of ball bearings in the imminent future. Taking into consideration the ITC’s finding that the volume of subject imports was not present ly a ffectin g domest ic price s in any

signific ant way

, and the l ack of e

vidence that would indicate any imminent cha nge in the volume of subject imports, the existence of unreported capaci ty d id not prov

ide a bas is for an

affirma tive thre at finding . Thus, the ITC’ s finding

with respect to capacity

is sustained.

ABMA next challenges the I TC’s finding with respect to inventories. The ITC found that “[i]nventor

ies of complete ba

ll bearin gs held by pr

oducers in China ha

ve not g rown sig nifican tly over the POI, and inventories he ld by importers in the United States at the end of 2002 were at the lowest level of the POI. Consequently , inventory levels do not support an a ffirmative threat determination.” F inal Dete rmination at 33. AB MA claims

that the I TC “faile d to appre ciate China’s large inventories,” Pl.’s Mem. at 36, arg uing that although the I TC referred to the lack of signific ant growth in Chine se invent ories ove r the per iod of inve stigation, it “fa iled to acknowledge that China’s inventories were still high in absolute terms.” Id . The ITC arg ues that since the levels of inventory did not result in injury during the pe riod of investigation, there was no reason to believe that these same levels would result in injury in the future. See Def.’s Resp.C OURT N O . 03-00280 P AGE 46

24 The unde

rly ing rec ord supports this fin ding. En d of peri od inventory

levels in China of complete ball bearings were a t 74,744 in 2002, down from 74,830 in 2001 and up from 72,419 in 2 000. Those

levels we re proje cted to dr

op in 2003, to 41,159, and ag ain in 2004 , to 38,567. Sta

ff Repor t, tbl. VI I-1-A. U.S. impo

rters’ e nd of per iod invent

ory levels of complete ball bearings were at 49,428 in 2002, down from 54,691 in 2001 and 51,263 in 2000. Id ., tbl. VII -3.

25 The I TC states t hat its inqu

iry with resp ect to inv entorie s is whether inventories at the end of the period, whether held in China or by U.S. importers, signif icantly exceed y

ear-end inventories earlier in the per

iod. This is

because inventor ies are an integ ral, inescapable consequence of manuf acture and sale of products, and do not, in themselves, indicate a threat of increased subject import shipments s eparat

e from a ny c apacity

and prod uction analy sis, unless those inventories are highest at the end of the pe riod. Def.’s Resp. at 38–39. at 39.

The statute instructs the ITC ge nerally that it shall consider “ inventories of the subject mercha ndise . . . . ” 19 U.S.C. § 1677(7) (F)(i) (V). I t does not provide a

ny f urther g uidance as to what significance the ITC should attach to this factor, or the method by which it should be evaluated. Here, the ITC clearly c onsidered inventories when it evaluated whether ther e was any significant growth in the level of inventories held by Chinese producers over the period of investigation. Not finding any significant growth, 24 and also noting that U.S. importer inventories were at their lowest at the end of 2002, 25 the I TC did not f ind that inventory

levels supported an affirmative threat determination.

The authority to make a

judgment as to the significance of inventory levels or what levelC OURT N O . 03-00280 P AGE 47

26 Nothing in the threat statute forbids the I TC from considering the volume and price effects findings it is obligated to make w ith respect to present material injury . While the “a bs en ce of

an y indiciaof present

injury is not cons idered c onclusive that threat

of injury does not exist,” the findings made with respect to whether there is prese nt material injury are

relevant. Suramerica de Aleaciones Laminadas, C.A. v. United States , 17 CIT 146, 150, 818 F. Supp. 348, (continued...) of inventories is considered high or low rests with the ITC, in light of the facts of each case. See Chung Ling Co. v. United States , 16 CI T 843, 846, 805 F. Sup p. 56, 61 ( 1992) (“ [D]iscreti on to make re asonable

judgmen ts and inf erence s in interpreting

evidenc e and determining the over all signific ance of

any particu lar fact or piec e of evid

ence” r ests with the IT C). The in quiry with whi ch t he c our t i s co nce rne d i s wh eth er t he e vi den ce r eas ona bl y sup por ts th e ITC ’s d eci si on. It

was rea sonable f

or the ITC to conc lude that since inv entorie s in China di d not sign ificantl y change over the period of investig ation and ended lower in 2002 than in 2001, such inventories did not support a finding that subject imports posed an imminent threat of material injury . As the evidence supports the ITC’s finding s with respect to inventories they are sustained.

Finally, AB MA challenges the I TC’s finding with respect to future price eff ects. The ITC found: [A]t their current volume levels, subject imports did not have

signific ant pric e-depr

essing or -suppr

essing e ffects o

n the dome stic like product during the POI. B ecause we do not believe that there is a likelihood of substantially increase d import volumes, we conclude it is likely

that the su

bject imports will continue not to have significant price effe cts in the imminent future. Final Determination at 32–33. ABMA arg ues that the ITC acted contra ry to the statute by

relying on its findi

ngs with respect to curre

nt price effects, Pl.’s Me

m. at 37, bu

t does not s

ugge st a method that the ITC should have applied. 26 Rathe r, ABMA propo ses th e foll owing:C OURT N O . 03-00280 P AGE 48

26 (...continued) 354 (1 993) ( empha sis i n origi nal) ( citi ng Rhone Poulenc , 592 F. Supp. at 1323–24 (citing H. R EP
. N O
. 317, 96th Cong., 1st Session 47 ( 1979)); Goss Graphics Sys., Inc. v. United States , 216 F.3d 1357, 1362 (Fed. Cir. 2000) (“For a thre at determination, § 1677(7)(F)(i) sets forth rele vant economic factors the I TC must consider, including material injury caused by imports or sa

les for importati on.”). T

herefore, it wa s not improp er for the IT C to conside r its findi ngs with respect to price e ffects. Faced

with conti

nued comp etitive pr

essure f rom agg ressive ly priced Ch inese impo

rts, the d omestic in

dustry would be f

orced to cut prices even more [than they did during the period of investigation] in order to avoid losing more sales, revenue, and market share. Moreover, these low price s and the significant underselling would be likely to generate gre ater demand for Chinese products. Id . at 38. Ac cording

to the I TC, this “a

lternate scenar io” amoun

ts to spec ulation, a nd as such

is an insufficient basis upon which to make a threat determination. Def .’s Resp. at 40 (citing 19 U.S.C. § 1677(7)(F)(ii)).

The court is not convinced that the ITC ha s made any e rror with respect to its future price effec ts finding . While “[a] th reat of materia l injury determination nec essarily involves a prediction of the future,” speculation may not be the basis of an affirmative threat determination. Comm. for F

air Beam I

mps. , 27 CIT at __ slip op. 03-73 at 41. ABMA’s proposed se quence of future events, while plausible, amounts to mere speculation and is not the basis for an a ffirmative threat determination. “That [ABMA] can point to evidence of rec ord which detracts from the evidence which supports the Commission's decision and can hy pothesize a reasonable basis for a contrary determination is neither surprising nor persuasive.” Matsushita , 750 F.2d at 936. ABMA has not shown that the ITC’s finding s with respect to capacity , inventories, and future price effects are unsupported by the evidence but rather has urg ed a different interpretation of theC OURT N O . 03-00280 P AGE 49

record evide nce th an tha t made by the ITC. N o chal lenge h as been made t o the ITC ’s fin dings with respect to the remaining factors. The I TC’s threat determination satisfies the substantial evidence standard, and according ly, it is sustained.

C ONCLUS ION For the r easons st ated above, ABM

A’s motion

for judg ment upon a

n agency record is denied, the ITC’s Final De termination is sustained, and this case is dismissed. Judgment shall be entered accordingly

.

/s/ Richard K. Eaton Dated: September 16, 2004 New York, New York