Nsk Corporation v. Usitc

United States Court of Appeals
for the Federal Circuit
______________________
NSK CORPORATION, NSK LTD., AND
NSK EUROPE LTD.,
Plaintiffs-Appellees,
AND
FAG ITALIA, S.P.A., SCHAEFFLER GROUP USA,
INC., SCHAEFFLER KG, THE BARDEN
CORPORATION, AND THE BARDEN
CORPORATION (U.K.) LTD.,
Plaintiffs-Cross Appellants,
AND
JTEKT CORPORATION AND
KOYO CORPORATION OF U.S.A.,
Plaintiffs-Appellees,
AND
SKF AEROENGINE BEARINGS UK AND
SKF USA INC.,
Plaintiffs-Cross Appellants,
v.
UNITED STATES INTERNATIONAL TRADE
COMMISSION,
Defendant-Appellant,
AND
THE TIMKEN COMPANY,
Defendant-Appellant.
______________________
2 NSK CORPORATION v. ITC
2011-1362, -1382, -1383, -1454
______________________
Appeals from the United States Court of International
Trade in consolidated Nos. 06-CV-0334, 06-CV-0335, and
06-CV-0336, Judge Judith M. Barzilay.
______________________
Decided: May 16, 2013
______________________
ROBERT A. LIPSTEIN, Crowell & Moring, LLP, of Wash-
ington, DC, argued for plaintiffs-appellees, NSK Corpora-
tion, et al. With him on the brief was ALEXANDER H.
SCHAEFER.
ANDREW T. SCHUTZ, Grunfeld, Desiderio, Lebowitz,
Silverman & Klestadt LLP, of Washington, DC, argued
for plaintiffs-cross appellants, FAG Italia, S.P.A., et al.
With him on the brief was MAX F. SCHUTZMAN, of New
York, New York.
CARTER G. PHILLIPS, Sidley Austin LLP, of Washing-
ton, DC, argued for plaintiffs-appellees, JTEKT Corpora-
tion, et al. With him on the brief were NEIL R. ELLIS and
JILL CAIAZZO. Of counsel was LAWRENCE R. WALDERS.
HERBERT C. SHELLEY, Steptoe & Johnson LLP, of
Washington, DC, for plaintiffs-cross appellants, SKF
Aeroengine Bearings UK, et al. With him on the brief
was CHRISTOPHER G. FALCONE.
NEAL J. REYNOLDS, Assistant General Counsel for
Litigation, United States International Trade Commis-
sion, of Washington, DC, argued for defendant-appellant,
United States International Trade Commission. With
NSK CORPORATION v. ITC 3
him on the brief were JAMES M. LYONS, General Counsel,
and DAVID A.J. GOLDFINE, Attorney Advisor. Of counsel
were CLAUDIA BURKE, Assistant Director, United States
Department of Justice, of Washington, DC, and DEBORAH
R. KING, Senior Attorney, United States Department of
Commerce, Office of the Chief Counsel for Import Admin-
istration, of Washington, DC.
TERENCE P. STEWART, Stewart and Stewart, of Wash-
ington, DC, argued for defendant-appellant, The Timken
Company. With him on the brief were GEERT DE PREST,
ERIC P. SALONEN and PHILIP A. BUTLER. Of counsel was
PATRICK JOHN MCDONOUGH.
______________________
Before NEWMAN, PROST, and O’MALLEY, Circuit Judges.
O’MALLEY, Circuit Judge.
This appeal arises out of the second sunset review of
antidumping duty orders on ball bearings from France,
Germany, Italy, Japan, and the United Kingdom (the
“U.K.”). Defendants-Appellants the United States Inter-
national Trade Commission (the “Commission”) and The
Timken Company (“Timken”) (collectively, “Appellants”)
appeal from the Court of International Trade’s final
judgment affirming the Commission’s decisions—issued
under protest—to revoke the antidumping orders on ball
bearings from Japan and the U.K. See NSK Corp. v.
United States, 774 F. Supp. 2d 1296 (Ct. Int’l Trade 2011)
(“NSK VI”) (affirming the Commission’s negative deter-
mination with respect to Japan); NSK Corp. v. United
States, 744 F. Supp. 2d 1359 (Ct. Int’l Trade 2010) (“NSK
V”) (affirming the Commission’s negative determination
with respect to the U.K. and remanding in part the Com-
mission’s Third Remand Determination).
Appellants also appeal the following interlocutory de-
cisions leading to the final judgment: NSK Corp. v. United
4 NSK CORPORATION v. ITC
States, 577 F. Supp. 2d 1322 (Ct. Int’l Trade 2008) (“NSK
I”) (affirming in part and remanding in part the Commis-
sion’s affirmative sunset determinations for Japan and
the U.K.); NSK Corp. v. United States, 593 F. Supp. 2d
1355 (Ct. Int’l Trade 2008) (“NSK II”) (denying Timken
and the Commission’s motions for rehearing in light of
intervening law); NSK Corp. v. United States, 637 F.
Supp. 2d 1311 (Ct. Int’l Trade 2009) (“NSK III”) (remand-
ing the Commission’s affirmative determinations regard-
ing Japan and the U.K.); and NSK Corp. v. United States,
712 F. Supp. 2d 1356 (Ct. Int’l Trade 2010) (“NSK IV”)
(affirming in part and remanding in part the Commis-
sion’s Second Remand Determination).
Appellants contend that the Court of International
Trade erred by rejecting the Commission’s determinations
that (1) it was appropriate to cumulate (i.e., consider in
the aggregate) the imports of ball bearings from the U.K.,
France, Germany, Italy, and Japan and (2) the cumulated
imports would cause material injury to the domestic ball
bearing industry if the antidumping orders were revoked.
According to Appellants, the Commission’s analysis was
in full compliance with statutory and administrative
obligations, and its findings were supported by substan-
tial evidence.
FAG Italia, S.P.A., Schaeffler Group USA, Inc.,
Schaeffler KG, The Barden Corporation, and The Barden
Corporation (U.K.) Ltd. (collectively, “Schaeffler”) and
SKF Aeroengine Bearings UK and SKF USA Inc. (collec-
tively, “SKF”) have cross-appealed, arguing that the
Commission erred in limiting its determinations to the
antidumping orders related to Japan and the U.K. Ac-
cording to Schaeffler and SKF, the Commission should
have applied its negative injury determination to all
countries cumulated.
Because we agree with Appellants that the Commis-
sion’s Second Remand Determination was supported by
NSK CORPORATION v. ITC 5
substantial evidence and that the Court of International
Trade erred in repeatedly remanding the case, we:
(1) reverse the Court of International Trade’s decisions in
NSK V and VI and judgment affirming the Commission’s
negative determinations regarding the orders on the U.K.
and Japan; (2) vacate the Court of International Trade’s
decision in NSK IV; (3) instruct the Court of International
Trade to vacate the Commission’s negative material
injury determinations in the Third and Fourth Remand
Determinations; and (4) order the Court of International
Trade to reinstate the Commission’s affirmative material
injury determination reached in the Second Remand
Determination. Given these conclusions, the issues raised
in Schaeffler’s and SKF’s cross-appeals are rendered
moot.
BACKGROUND
This case has an extensive procedural history, includ-
ing an original determination and four subsequent re-
mand determinations by the Commission, as well as six
opinions from the Court of International Trade.
The Original Antidumping Order
and First Sunset Review
In May 1989, the Commission determined that the
United States’ domestic industry for ball bearings was
being materially injured by sales of ball bearings import-
ed from France, Germany, Italy, Japan, Romania, Singa-
pore, Sweden, Thailand, and the U.K. at less than fair
value. The Department of Commerce (“Commerce”)
published the antidumping order on those bearings on
May 15, 1989. See Antidumping Duty Orders: Ball Bear-
ings, Cylindrical Roller Bearings, and Spherical Plain
Bearings and Parts Thereof From the Federal Republic of
Germany, France, Italy, Japan, Romania, Singapore,
Sweden, Thailand, and the United Kingdom, 54 Fed. Reg.
20,900-20,911 (May 15, 1989).
6 NSK CORPORATION v. ITC
Pursuant to 19 U.S.C. § 1675(c), every five years after
the issuance of an antidumping duty order, Commerce
and the Commission conduct a review of whether an
antidumping order is still necessary to protect the domes-
tic industry or whether that order can be “sunset.” In
these “sunset reviews,” the Commission determines
“whether revocation of an order . . . would be likely to lead
to continuation or recurrence of material injury within a
reasonably foreseeable time.” 19 U.S.C. § 1675a(a)(1).
In 1999, the Commission initiated its first sunset re-
view and found that revocation of the antidumping orders
likely would lead to material injury to the domestic indus-
try. Accordingly, in June 2000, the Commission issued
affirmative determinations for France, Germany, Italy,
Japan, Singapore, and the U.K., which resulted in the
continuation of the antidumping orders. See Continuation
of Antidumping Duty Orders: Certain Bearings from
France, Germany, Italy, Japan, Singapore, the United
Kingdom, and the People’s Republic of China, 65 Fed. Reg.
42,665 (July 11, 2000).
The Second Sunset Review
The Commission initiated a second sunset review of
the antidumping orders in June 2005. On August 31,
2006, the Commission issued its final determinations,
unanimously finding that revocation of the antidumping
duty orders on bearings from China, France, Germany,
Japan, and the U.K. likely would lead to continuation or
recurrence of material injury to the domestic industry
within a reasonably foreseeable time. 1 See Certain Bear-
ings From China, France, Germany, Italy, Japan, Singa-
pore, and the United Kingdom; Investigation Nos. 731-TA-
1 The Commission issued a negative determination
for Singapore.
NSK CORPORATION v. ITC 7
344, 391-A, 392-A and C, 393-A, 394A, 396, and 399-A
(Second Review), 71 Fed. Reg. 51,850 (Aug. 31, 2006).
In its determinations, the Commission cumulated the
subject imports from France, Germany, Italy, Japan, and
the U.K. under 19 U.S.C. § 1675a(a)(7) on grounds that
imports from the cumulated countries were likely to
compete with one another and with the domestic prod-
ucts, and would have a “discernible adverse impact” on
the industry if the orders were revoked. First, the Com-
mission found that the volume of cumulated imports
would be significant after revocation, especially given that
the subject producers were highly export-oriented, ranked
among the largest exporters of ball bearings in the world,
and had substantial excess capacity during the period of
review (“POR”). The Commission also found that the
United States was an attractive market for exporters
because it was the second largest market for ball bear-
ings, and prices in the United States were higher than
those in other markets. Regarding the likely price effects
of revocation, the Commission found that, even with the
orders in place, the subject imports undersold (i.e., were
priced lower than) domestic ball bearings and were sup-
pressing prices for the domestic product. Given the record
evidence that price was an important factor in purchasing
decisions and that domestic and subject bearings were
substitutable, the Commission found that the subject
imports likely would be priced aggressively to gain mar-
ket share if the antidumping orders were revoked. The
Commission concluded that revocation of the antidumping
orders likely would lead to significant underselling by the
cumulated imports, as well as significant price suppres-
sion.
NSK I and NSK II
In September 2006, NSK Corporation, NSK Ltd., and
NSK Europe Ltd. (collectively, “NSK”) appealed the
Commission’s affirmative determinations for ball bearings
8 NSK CORPORATION v. ITC
from Japan and the U.K. to the Court of International
Trade. NSK Corporation produces ball bearings in the
United States and imports bearings from its affiliated
companies: (1) NSK Ltd., a Japanese producer of ball
bearings; and (2) NSK Europe, a U.K. producer and
exporter of ball bearings.
Likewise, in September 2006, JTEKT Corporation and
Koyo Corporation of U.S.A. (collectively, “JTEKT”) ap-
pealed the Commission’s final determination with respect
to Japan. JTEKT Corporation is a Japanese manufactur-
er and exporter of subject ball bearings, and Koyo Corpo-
ration of U.S.A. is a domestic importer of bearings from
Japan. The Court of International Trade consolidated
NSK’s and JTEKT’s appeals in January 2007.
In November 2006, Schaeffler and SKF intervened as
of right in the appeal. Schaeffler produces subject ball
bearings in the United States, the U.K., Germany, and
Italy. SKF is a domestic producer and importer of the
subject merchandise from France, Germany, Italy, and
the U.K.
On September 9, 2008, the Court of International
Trade issued its first decision, affirming the Commission’s
determinations in part and remanding in part. Specifical-
ly, the court affirmed the Commission’s determinations
that: (1) the subject imports are likely to have a reasona-
ble competitive overlap with the domestic product;
(2) there likely would be a significant volume of subject
imports upon revocation of the orders; and (3) the subject
imports likely would have significant price effects upon
revocation. See NSK I, 577 F. Supp. 2d at 1336-37, 1342-
47.
The court remanded three issues to the Commission.
First, relying on this court’s decision in Bratsk Aluminum
Smelter v. United States, 444 F.3d 1369 (Fed. Cir. 2006),
the Court of International Trade held that:
NSK CORPORATION v. ITC 9
“whenever [a sunset review] is centered on a
commodity product, and price competitive non-
subject imports are a significant factor in the
market,” the ITC must consider whether non-
subject imports have captured or are likely to cap-
ture market share previously held by the subject
imports, and whether this level of displacement
makes it unlikely that removal of the orders will
lead to a continuation or recurrence of material
injury as a result of subject imports.
NSK I, 577 F. Supp. 2d at 1333 (alteration in original)
(quoting Bratsk, 444 F.3d at 1375). Because ball bearings
are “sufficiently fungible to satisfy the ‘commodity prod-
uct’ test under Bratsk” and “non-subject imports are a
significant factor in the domestic industry,” the court
instructed the Commission to conduct “a full review of the
impact of non-subject imports on the domestic industry.”
Id. at 1334. Next, the court instructed the Commission to
reconsider its vulnerability finding in light of the “large
scale restructuring within the ball bearing industry that
could explain much of the seemingly negative data.” Id.
at 1339. Finally, the court remanded the Commission’s
decision to cumulate imports from the U.K. “for additional
explanation as to whether the potential volumes of U.K.
exports . . . are likely to have an adverse impact on the
domestic industry if the order is removed.” Id. at 1338.
Nine days after NSK I issued, this court issued its de-
cision in Mittal Steel Point Lisas Ltd. v. United States,
542 F.3d 867 (Fed. Cir. 2008), clarifying that Bratsk “was
directed to determining the cause of the injury already
suffered by the domestic industry.” Mittal Steel, 542 F.3d
at 876. Specifically, we explained that the causation
inquiry discussed in Bratsk was “not concerned with
whether an antidumping duty order would actually lead
to the elimination of those goods from the market in the
future or whether those goods would be replaced by goods
from other sources.” Id. Instead, the “focus of the inquiry
10 NSK CORPORATION v. ITC
is on the cause of injury in the past, not the prospect of
effectiveness in the future.” Id.In light of Mittal Steel, Timken and the Commission
moved the Court of International Trade to reconsider its
decision in NSK I. Specifically, they argued that the court
erred in its interpretation of Bratsk and that the Commis-
sion was not required, in a sunset review, to determine
whether non-subject imports had replaced, or were likely
to replace, subject imports. The Court of International
Trade disagreed and denied the motions for rehearing,
noting that nothing in Mittal Steel prevented it “from
holding that the non-subject import analysis is proper in a
sunset review when the triggering factors are present”—
i.e., when the subject merchandise is a commodity product
and non-subject imports are a significant factor in the
market. 2 NSK II, 593 F. Supp. 2d at 1372.
Given the court’s conclusions in NSK II, and con-
sistent with the remand instructions in NSK I, the Com-
mission reopened the record to obtain information to
conduct an analysis of non-subject imports. See Ball
Bearings from Japan and the United Kingdom, Investiga-
tion Nos. 731-TA-394-A & 399-A (Second Review) (Re-
mand), 74 Fed. Reg. 6173 (Feb. 5, 2009). The Commission
sent questionnaires to 76 producers of non-subject ball
bearings and received usable responses from 18 producers
located in 10 different countries. Certain Ball Bearings
and Parts Thereof From Japan and the United Kingdom,
Investigation Nos. 731-TA-394-A and 399-A, 2009 ITC
LEXIS 1516, at *117 (May 2009) (“First Remand Deter-
mination”).
2 Neither the Commission nor Timken has appealed
the Court of International Trade’s decision that the
principles articulated in Bratsk and clarified in Mittal
Steel are applicable to sunset reviews.
NSK CORPORATION v. ITC 11
First Remand Determination
On May 4, 2009, the Commission issued its First Re-
mand Determination, reaffirming its original findings.
First, the Commission again exercised its discretion to
cumulate subject imports of ball bearings from Japan and
the U.K. with subject imports from France, Germany, and
Italy. As to the U.K., the Commission found that subject
imports of ball bearings from the U.K. likely would have a
discernible adverse impact on the domestic industry if the
order covering U.K. bearings were revoked because:
(1) the U.K. remains a substantial producer of ball bear-
ings; (2) even with the antidumping order in place, “sub-
ject imports of ball bearings from the [U.K.] have
maintained a stable and consistent presence in the U.S.
market”; and (3) although U.K. producers reported de-
clines in their production levels, they “actually increased
their total shipments of all ball bearings (in terms of
value) during the period of review.” See First Remand
Determination, 2009 ITC LEXIS 1516, at *55-61. The
Commission further found that, upon revocation, U.K.
producers are likely to direct additional shipments of ball
bearings to the United States, particularly because there
is a high degree of substitutability between U.K. and
domestic ball bearings and prices for ball bearings are
generally higher in the domestic market than in other
markets. Id. at *59-61. Given this evidence, the Commis-
sion concluded that U.K. producers “are likely to take
advantage of the revocation of the order to compete more
aggressively with both the domestic and non-subject ball
bearings suppliers on price and thereby increase their
market share.” Id. at *61-62.
Next, the Commission reconsidered its vulnerability
analysis in light of the “significant rise in non-subject
imports” and the “large scale restructuring within the ball
bearing industry.” Id. at *63. Because the record showed
declines in the industry’s capacity, production, and sales
levels during the POR, the Commission concluded that
12 NSK CORPORATION v. ITC
the industry “was in a weakened condition at the end of
the period and was therefore vulnerable to likely material
injury from the subject imports.” Id. at *80.
Finally, the Commission concluded that non-subject
imports have not captured, and are not likely to capture,
market share previously held by subject imports given
that: (1) subject imports maintained significant market
share since the imposition of the orders; (2) “most of the
market share increases obtained by the non-subject
imports occurred at the expense of the domestic industry”;
and (3) data received from producers in non-subject
countries in response to the Commission’s questionnaires
indicated that many of them had shipped few, if any, ball
bearings to the United States. Id. at *98-108. Given
these circumstances, the Commission again concluded
that revocation of the antidumping duty orders on ball
bearings from Japan and the U.K. is “likely to lead to
continuation or recurrence of material injury . . . within a
reasonably foreseeable time.” Id. at *111-12.
NSK III
In August 2009, the Court of International Trade is-
sued its decision in NSK III. In that decision, the court
remanded the same three issues it previously had re-
manded for further analysis in NSK I on grounds that the
Commission did not “genuinely comply with the court’s
remand instructions” or “meaningfully demonstrate a
rational connection between the facts in the record and
the conclusions reached.” NSK III, 637 F. Supp. 2d at
1319.
With respect to the Commission’s analysis of causa-
tion and the impact of non-subject imports, the court
found that the Commission “failed to adequately explain
why subject imports would be more than a minimal or
tangential cause of likely injury given the significant price
underselling by non-subject imports.” Id. at 1323. Be-
cause the First Remand Determination did not establish a
NSK CORPORATION v. ITC 13
link between the subject imports and likely future injury
to the domestic industry, the court instructed the Com-
mission to “perform a more focused analysis on the causa-
tion issue . . . in light of the significant presence of non-
subject imports in the domestic market.” Id. at 1323-24.
The court also directed the Commission to reconsider
its vulnerability findings. Specifically, the court found
that the Commission “failed to sufficiently address the
effect of restructuring within the ball bearing industry”
and did not address “whether the domestic industry is
vulnerable to increased volumes of subject imports or is
simply responding to other market forces.” Id. at 1328.
The court instructed the Commission to address conflict-
ing evidence in the record in reaching its conclusions on
vulnerability and the likely impact of subject imports on
the domestic industry.
Finally, the court found that the Commission failed to
support its decision to cumulate ball bearings from the
U.K. with other subject imports. Id. at 1328-29. The
court again remanded this issue to the Commission with
instructions to consider the large scale restructuring
within the industry and “the significant rise in non-
subject imports in the U.S. market.” Id. at 1329.
Second Remand Determination
In January 2010, the Commission issued its Second
Remand Determination, reaffirming its original findings.
See Certain Ball Bearings and Parts Thereof From Japan
and the United Kingdom, Investigation Nos. 731-TA-394-
A and 399-A, 2010 ITC LEXIS 431 (January 2010) (“Sec-
ond Remand Determination”). At the outset, the Commis-
sion addressed the vulnerability of the domestic ball
bearing industry. Specifically, the Commission found that
the domestic industry was in a weakened state and “re-
duced its overall production capacity from 448.8 million
BBs in 2000, the first year of the period of review, to 338.4
million BBs in 2005, the last year of the period.” Id. at
14 NSK CORPORATION v. ITC
*41. Although the industry attempted to restructure its
operations by reducing production capacity during the
POR, the Commission nonetheless concluded that the
industry, as a whole, was in a vulnerable condition,
making it susceptible to the likely discernible adverse
impact of subject imports. Id. at *60-61.
Next, the Commission found that, despite restructur-
ing within the industry, subject imports from the U.K.
were likely to have a discernible adverse impact on the
domestic industry upon revocation of the antidumping
order covering them. Specifically, the Commission found
that U.K. imports were well suited to compete more
aggressively in the market if the orders were revoked,
particularly given the U.K.’s “level of available capacity in
2005, its high degree of export-orientation, its continued
presence and interest in the U.S. market, and the contin-
ued attractiveness of the U.S. market to exporters.” Id. at
*70-72. The Commission also found that, even with the
antidumping order in place, U.K. imports were able to
undersell domestic products by “significant margins.” Id.
at *74-75. Although the Commission recognized that non-
subject imports are a significant presence in the market,
it found that they have not prevented the subject imports
from the U.K. from “maintaining a consistent and stable
presence in the market.” Id. at *79. Given these consid-
erations, and because U.K. bearings are substitutable
with both domestic and non-subject bearings, the Com-
mission concluded that the subject imports from the U.K.
would be able “to increase their import levels to the very
small percentage of market share necessary to satisfy the
discernible adverse impact standard, even with the signif-
icant presence of non-subject imports in the market.” Id.
at *81 (citation and internal quotation marks omitted).
Next, the Commission found that, despite the signifi-
cant presence of low-priced, non-subject imports, “the
subject imports are likely to be more than a minimal or
tangential factor in the material injury to the domestic
NSK CORPORATION v. ITC 15
industry that is likely to continue or recur upon revoca-
tion of the orders.” Id. at *101-02. In reaching this
conclusion, the Commission noted that subject imports
“retained significant market share” during the POR with
a market share of 13.2 percent in 2005. Id. at *111. As
such, non-subject imports “are not likely to prevent the
cumulated subject imports from increasing their presence
in the market to levels that will have a significant adverse
impact on the pricing and condition of the domestic indus-
try, once the disciplining effects of the orders are re-
voked.” Id. at *129. According to the Commission, the
record showed that the subject imports were substitutable
with both domestic and non-subject bearings and that the
subject producers were export-oriented and had “signifi-
cant available capacity” that could be used to increase
imports to the United States. Id. at *130-31. Given these
factors, and because “subject imports remain well-suited
to compete more aggressively on price with both the
domestic and nonsubject bearings,” the Commission
concluded that non-subject imports would not prevent the
cumulated imports from materially injuring the domestic
industry once the orders were revoked. Id. at *131-32.
NSK IV
In April 2010, the Court of International Trade af-
firmed the Commission’s vulnerability analysis but again
remanded its decision to cumulate ball bearings from the
U.K. with other subject imports. NSK IV, 712 F. Supp. 2d
at 1364, 1368. The court faulted the Commission for its
“assum[ption] that the subject [U.K.] producers would
ship all excess capacity to the United States in the ab-
sence of the [antidumping] order” and determined that
“the Commission does not support with substantial evi-
dence its conclusion that the [U.K.] industry likely would
export an additional discernible amount of its products to
the United States upon revocation.” Id. at 1365-66.
According to the court, the Commission also “fail[ed] to
explain rationally how [U.K.] ball bearings would compete
16 NSK CORPORATION v. ITC
with domestic ball bearings and non-subject imports in
the absence of the order and, thus, likely reach the requi-
site level of impact.” Id. at 1365. Consequently, the court
concluded that the Commission did not support its cumu-
lation determination with substantial evidence and in-
structed the Commission that it could “reopen the record
and obtain additional data . . . if it so chooses.” Id. at
1367.
The court further indicated that, because of the short-
comings in the Commission’s cumulation analysis, it could
not address the remaining issues of likely impact and
causation. Id. at 1368. Nonetheless, the court noted that
“non-subject imports may prevent the subject imports
from achieving the requisite level of causation,” given that
non-subject imports “increased their market share . . . and
ha[d] undersold the domestic like product and subject
imports in at least two-thirds of the possible price com-
parisons.” Id. at 1368. The court instructed the Commis-
sion to “address this information as part of the causation
inquiry.” Id.Third Remand Determination
In August 2010, the Commission issued its Third Re-
mand Determination. See Certain Ball Bearings and
Parts Thereof From Japan and the United Kingdom,
Investigation Nos. 731-TA-394-A and 399-A (August 2010)
(“Third Remand Determination”). The Commission
elected not to reopen the record on remand based on its
determination that “the existing record contained a
complete data set with respect to the capacity, production,
and shipment levels of the U.K. ball bearings industry as
well as comprehensive information relating to other
factors bearing on the discernible impact finding for the
[U.K.].” Id. at 10. The Commission “continue[d] to main-
tain that the existing record supports [its] finding that
subject imports of ball bearings from the [U.K.] are likely
to have a discernible adverse impact on the domestic
NSK CORPORATION v. ITC 17
industry if the antidumping duty order were to be re-
voked” but concluded that it was “constrained by the
Court’s remand instructions to find that subject imports
from the [U.K.] are not likely to have a discernible ad-
verse impact upon revocation.” Id. at 11-12. The Com-
mission determined that it was “also compelled not to
cumulate subject imports from the [U.K.] with subject
imports from the other four subject countries.” Id. at 12.
The Commission, however, “determine[d] that revoca-
tion of the order on BBs from Japan would likely result in
the continuation or recurrence of material injury to an
industry in the United States within a reasonably fore-
seeable time.” Id. at 13. In reaching this conclusion, the
Commission continued to cumulate imports of ball bear-
ings from Japan with those from France, Germany, and
Italy. Id. at 12 n.56. The Commission reassessed the
conditions of competition with respect to the domestic
industry, as well as the likely volume and price effects of
the cumulated subject imports. Id. at 13-23. According to
the Commission, “the volume of the subject BB imports
from [the cumulated countries] would likely be significant
in the reasonably foreseeable future if the orders were
revoked” based on, among other things, the fact that the
subject countries are “highly export-oriented” and have
“substantial excess [production] capacity which could
easily be directed at the U.S. market if the orders were
revoked.” Id. at 16-17, 19-20. The Commission also
stressed that there is “a high degree of interchangeability
between subject imports and the domestic like product”
and that “higher prices in the United States” provide the
subject countries with a strong incentive to export ball
bearings to the United States. Regarding the likely
impact of revocation on the price of ball bearings, the
Commission concluded that revocation would have “signif-
icant price suppressing and price depressing effects”
based on its assessment of demand, substitutability, and
other factors related to competition. Id. at 20-23. Accord-
18 NSK CORPORATION v. ITC
ing to the Commission, such price effects would damage
the domestic industry, particularly in light of the indus-
try’s increasing costs of production. See id.
The Commission further determined that the pres-
ence of non-subject imports “would not impair the subject
imports’ ability to gain significant market share at the
expense of the domestic industry.” Id. at 34. “[F]ind[ing]
that the domestic industry is in a vulnerable condition
and is therefore susceptible to likely material injury from
the cumulated subject imports,” the Commission stressed
that, despite the “significant presence of low-priced non-
subject imports in the U.S. market, the subject imports
have maintained a significant presence in the U.S. mar-
ket since the imposition of the orders” and have “in-
creased (by value) by $69.0 million dollars, or by 24.6
percent” during the final three years of the POR. Id. at
30, 32. The Commission determined that, following
revocation, “the subject producers w[ould] have the ability
to increase substantially their U.S. market penetration”
and would “likely revert to their more aggressive volume
and underselling strategies.” Id. at 32-33 (footnotes
omitted).
NSK V
In December 2010, the Court of International Trade
upheld the Commission’s negative conclusions on ball
bearings from the U.K. and sustained the Commission’s
findings that the cumulated subject imports likely would
have significant volume and price effects on the industry
if the antidumping orders were revoked. NSK V, 744 F.
Supp. 2d at 1363-64. The court, however, remanded the
Commission’s affirmative significant adverse impact and
causation determinations. Id. at 1366. The court con-
cluded that it could not “determine whether the cumulat-
ed subject imports likely will have a significant adverse
impact on the vulnerable domestic industry in the ab-
sence of the antidumping orders” because the Commission
NSK CORPORATION v. ITC 19
“ignored the influence of non-subject imports in the mar-
ket.” Id. at 1365. Similarly, the court concluded that
“[w]ithout a more thorough examination of non-subject
imports, [it could not] determine whether the cumulated
subject imports constitute more than a minimal or tan-
gential cause of injury to the domestic industry which will
likely continue to recur.” Id. at 1366. According to the
court, “it appears . . . that if subject producers lower the
prices of their imports, then the non-subject producers
almost certainly will also drop their prices.” Id. at 1365.
As a consequence, the court concluded, “the non-subject
imports likely would negate any significant adverse effect
of lower-priced subject imports.” Id. The court advised
the Commission that it could “reopen the record and
obtain additional data . . . at its discretion.” Id.Fourth Remand Determination
In March 2011, the Commission issued its Fourth
Remand Determination. See Certain Ball Bearings and
Parts Thereof From Japan and the United Kingdom,
Investigation Nos. 731-TA-394-A and 399-A (March 2011)
(“Fourth Remand Determination”). The Commission
stated that it “believe[d] that [its] likely impact analysis
in the original and remand determinations w[as] support-
ed by ample record evidence and that the record evidence
on this issue [was] reasonably complete.” Id. at 15.
Nonetheless, the Commission concluded that it was
“compelled by the Court’s instructions to determine that
these subject imports are not likely to have a significant
impact upon revocation.” Id. at 16-17.
NSK VI
In April 2011, the Court of International Trade sus-
tained the Commission’s findings “that subject imports
would likely not have a significant adverse impact or
cause injury to the domestic industry in the absence of the
antidumping duty orders.” NSK VI, 774 F. Supp. 2d at
1297. Even though it affirmed the Commission’s findings,
20 NSK CORPORATION v. ITC
the court criticized the Commission for “continu[ing] to
mischaracterize the court’s remand instructions and to
mistakenly insist that the court compelled this result.”
Id.The Commission and Timken timely appealed, and
Schaeffler and SKF timely cross-appealed. We have
jurisdiction pursuant to 28 U.S.C. § 1295(a)(5).
DISCUSSION
A. Legal Standards
In conducting a sunset review, the Commission is re-
quired to “determine whether revocation of an order . . .
would be likely to lead to continuation or recurrence of
material injury within a reasonably foreseeable time.” 19
U.S.C. § 1675a(a)(1). The Commission must “consider the
likely volume, price effect, and impact of imports of the
subject merchandise on the industry if the order is re-
voked.” Id.
B. Standard of Review
The parties disagree regarding the appropriate stand-
ard for review. NSK and JTEKT contend that the rele-
vant inquiry is whether the Court of International Trade
abused its discretion in remanding the Commission’s
determinations with respect to Japan and the U.K.
Timken and the Commission, however, assert that the
relevant inquiry is whether the Commission’s determina-
tions were supported by substantial evidence.
The appropriate standard of review depends on the
posture of the case. Nippon Steel Corp. v. U.S. Int’l Trade
Comm’n, 494 F.3d 1371, 1378 (Fed. Cir. 2007). When the
Court of International Trade orders the Commission to
enter a negative determination, this court steps into the
shoes of the trade court and conducts a de novo review of
whether the Commission’s determinations are supported
by substantial evidence. Id. This court also reviews the
NSK CORPORATION v. ITC 21
Commission’s determinations for substantial evidence
when the Court of International Trade “remand[s] to the
Commission, giving it two options on how to proceed: [1]
reopen the record in order to obtain substantial evidence
to support its adverse impact conclusion or [2] make a
determination that subject imports will have no adverse
impact should the orders be revoked.” Id. (alterations in
original) (citation and internal quotation marks omitted).
By contrast, we review remand orders issued by the Court
of International Trade for abuse of discretion when the
trade court does not assess the sufficiency of the evidence
supporting the Commission’s determinations or require
additional investigation by the Commission, but “merely
remand[s] the matter for additional explanation that
would clarify the Commission’s determination.” Altx, Inc.
v. United States, 370 F.3d 1108, 1117 (Fed. Cir. 2004)
(internal quotation marks omitted).
With respect to the case before us, we conclude that it
is appropriate to conduct a de novo review of the Court of
International Trade’s decisions, assessing whether the
Commission’s determinations were supported by substan-
tial evidence. The trade court made numerous substan-
tive assessments of the Commission’s determinations.
For instance, in NSK V, the trade court expressed its view
“that the existing record, taken as a whole, cannot sup-
port an affirmative finding on likely significant adverse
impact.” 744 F. Supp. 2d at 1366-67; see also NSK IV, 712
F. Supp. 2d at 1367 (“The court does not believe that the
existing record, taken as a whole, can support an affirma-
tive discernible adverse impact finding.”). Similarly, in
NSK IV, the court “question[ed] the reasonableness of the
Commission’s statement” that U.K. imports maintained a
stable presence in the domestic market, and the court
stated that it was “not persuaded” by the Commission’s
determination that U.K. producers were likely to compete
aggressively on price in the absence of the antidumping
order affecting them. 712 F. Supp. 2d at 1366. Thus, like
22 NSK CORPORATION v. ITC
the Court of International Trade in Nippon Steel, the
trade court in the instant case disagreed with the Com-
mission’s substantive assessments and left the Commis-
sion with two options: (1) reopen the record and make
additional findings or (2) issue a negative determination. 3
Nippon Steel, 494 F.3d at 1378. Consequently, reviewing
the Commission’s determinations for substantial evidence
is appropriate. See 19 U.S.C. § 1516a(b)(1)(B)(i) (requir-
ing courts to affirm a determination of the Commission
unless it is “unsupported by substantial evidence on the
record, or otherwise not in accordance with law”). “Sub-
stantial evidence is ‘more than a mere scintilla’ and ‘such
relevant evidence as a reasonable mind would accept as
adequate’ to support a conclusion.” In re Pacer Tech., 338
F.3d 1348, 1349 (Fed. Cir. 2003) (quoting Consol. Edison
Co. v. NLRB, 305 U.S. 197, 229 (1938)).
3 JTEKT argues on appeal that an abuse of discre-
tion standard should apply because the Court of Interna-
tional Trade did not review the merits of the
Commission’s findings. In its comments to the Commis-
sion during the Fourth Remand Proceedings, however,
JTEKT asserted that “based on the finding in NSK V that
the record does not provide substantial evidence support-
ing an affirmative determination as to subject imports
from Japan, JTEKT submits that the Commission must
conclude that revocation of the antidumping duty order
against ball bearings from Japan would not be likely to
lead to the continuation or recurrence of material injury
to an industry in the United States within a reasonably
foreseeable time.” JA3245 (emphasis added). JTEKT’s
comments reinforce our conclusion that the Court of
International Trade left the Commission with no options
other than to reopen the record or reach a negative de-
termination for the U.K. and Japan.
NSK CORPORATION v. ITC 23
C. Cumulation
The Commission may, in its discretion, “cumulatively
assess the volume and effect of imports of the subject
merchandise from all countries with respect to which
[sunset] reviews . . . were initiated on the same day, if
such imports would be likely to compete with each other
and with domestic like products in the United States
market.” 19 U.S.C. § 1675a(a)(7). The Commission,
however, is prohibited from making cumulative assess-
ments in “case[s] in which it determines that such imports
are likely to have no discernible adverse impact on the
domestic industry.” Id. This court has noted the “discern-
ible adverse impact standard presents a relatively low
threshold.” Nippon Steel, 494 F.3d at 1379 n.6.
The Commission’s discernible adverse impact analysis
is at the heart of the dispute regarding the Commission’s
decision to cumulate imports from the U.K. with those of
the other subject countries. Appellants contend that
substantial evidence supported the Commission’s deter-
mination that imports from the U.K. would have a dis-
cernible adverse impact on the domestic ball bearing
industry if the antidumping order were removed. Accord-
ing to Appellants, in remanding the Commission’s deter-
mination in NSK IV, the trade court impermissibly
substituted its own judgment for that of the Commission
and contradicted its earlier rulings in NSK I.
The Commission made a number of findings support-
ing its conclusion that revocation of the order covering
U.K. ball bearings likely would have a discernible adverse
impact on the domestic industry. In particular, in its
Second Remand Determination, the Commission found
that the domestic industry was particularly susceptible to
adverse effects from U.K. imports because it “was in a
vulnerable condition at the end of the period of review.”
2010 ITC LEXIS 431, at *40. The Commission based its
conclusion on, among other things, evidence of declining
24 NSK CORPORATION v. ITC
productivity, capacity utilization, and profits, as well as a
deteriorating cost structure. Id. at *40-49. The Commis-
sion also observed that “[t]here is a significant degree of
substitutability among the domestic bearings, the U.K.
imports, and non-subject imports,” meaning that price is
often dispositive in purchasers’ decision-making. Id. at
*73. The Commission also found that “U.K. imports . . .
undersold the domestic like product in 45 out of 48 in-
stances” and “the margins of underselling for the U.K
imports were considerable.” Id. at *74-75. In addition,
the Commission found that high prices available for ball
bearings in the United States made it an attractive mar-
ket for U.K. producers to target. Id. at *85. Further, the
Commission observed that U.K. producers could signifi-
cantly increase their supply of ball bearings to the United
States. Although U.K. producers reduced their produc-
tion capacity and had a “very high capacity utilization
rate,” the Commission observed the U.K. “was the tenth
largest ball bearing exporter in the world in 2004” and its
producers had sufficient available capacity “to increase
[their] shipments to the United States, in terms of quanti-
ty, more than ten-fold when compared to the import levels
for U.K. imports in 2005.” Id. at *70.
The Commission also specifically considered the role
of non-subject imports in the marketplace and observed
that “non-subject imports have not been able to prevent
the subject imports from the [U.K.] from maintaining a
consistent and stable presence in the market, even with
the price- and volume-disciplining effects of the U.K.
order in place.” Id. at *79-80. The Commission also noted
that the U.K. imports and “non-subject imports were
generally underselling the domestic products at similar
underselling margins in most instances during the period
of review.” Id. at *77. Consequently, in the Commission’s
view, non-subject imports were not likely to “prevent the
entry of additional imports from the [U.K.] into the mar-
ket upon revocation of the order.” Id. at *79.
NSK CORPORATION v. ITC 25
NSK argues that these conclusions were not ade-
quately supported by the record and that the court was
correct to remand the determination for further explana-
tion, particularly in light of a number of facts that detract
from the Commission’s conclusions. For instance, as the
court noted in NSK IV, U.K. producers were “operat[ing]
near maximum capacity” and thus had a limited ability to
produce additional ball bearings and ship them to the
United States if the antidumping order were lifted. 712
F. Supp. 2d at 1365. In addition, the court faulted the
Commission for failing to provide evidence supporting its
“implicit[] assum[ption] that the [U.K.] producers would
ship all excess capacity to the United States in the ab-
sence of the order.” Id. The court also observed a “signifi-
cant downward change in the subject imports’ market
share in terms of value since the first period of review,”
which detracted from the Commission’s conclusion that
the U.K. maintained a stable presence in the domestic
market. 4 Id. at 1366. Finally, NSK highlights the con-
siderable success U.K. producers have enjoyed in markets
outside the United States, which, according to NSK,
suggests a shift in focus away from the United States
market.
Having reviewed the entire body of record evidence,
we conclude that substantial evidence supports the Com-
mission’s determination that U.K. imports likely would
have a discernible adverse impact on the domestic ball
bearing industry if the antidumping order were removed.
The Commission found that U.K. producers (1) were able
to send a sufficient volume of bearings to the United
4 In NSK I, however, the Court of International
Trade stated: “As subject imports from the [U.K.] have
remained steady in terms of value throughout the review
period, the [Commission] reasonably found that U.K.
producers maintain a significant share of the U.S. mar-
ket.” 577 F. Supp. 2d at 1337.
26 NSK CORPORATION v. ITC
States to impact the market, (2) had incentives to target
the United States’ bearings market, (3) sold bearings that
largely were interchangeable with domestic bearings and
those made by non-subject producers, and (4) could com-
pete successfully with both domestic and non-subject
bearings on price. Although there is evidence that de-
tracts from the Commission’s ultimate conclusion that
revocation of the order covering U.K. ball bearings likely
would damage the domestic industry, we cannot say that
this conflicting evidence casts such doubt on the Commis-
sion’s conclusions to leave less than a mere scintilla of
evidence or less evidence than a reasonable mind might
accept as adequate to support the Commission’s conclu-
sion. See Atl. Sugar Ltd. v. United States, 744 F.2d 1556,
1563 (Fed. Cir. 1984) (determining that the Commission’s
determination was supported by substantial evidence
despite significant conflicting evidence). “Under the
substantial evidence standard, when adequate evidence
exists on both sides of an issue, assigning evidentiary
weight falls exclusively within the authority of the Com-
mission.” Nippon Steel Corp. v. United States, 458 F.3d
1345, 1358 (Fed. Cir. 2006). “‘It is the Commission’s task
to evaluate the evidence it collects during its investiga-
tion,’” and decisions “‘such as the weight to be assigned to
a particular piece of evidence, lie at the core of that eval-
uative process.’” Nippon Steel Corp. v. United States, 458
F.3d 1345, 1350 (quoting U.S. Steel Grp. v. United States,
96 F.3d 1352, 1357 (Fed. Cir. 1996)). Consequently, we
reverse the Court of International Trade’s order affirming
the Commission’s decision under protest not to cumulate
U.K. imports with those of the other subject countries and
order the court to reinstate the Commission’s decision in
its Second Remand Determination to cumulate imports
from the U.K. with those from the other subject countries.
D. Affirmative Likely Injury
Appellants also request that we overturn the Court of
International Trade’s decisions in NSK IV, NSK V, and
NSK CORPORATION v. ITC 27
NSK VI and reinstate the Commission’s affirmative
determinations for the U.K. and Japan. In its Second
Remand Determination, the Commission concluded “that
revocation of the antidumping duty orders covering im-
ports of the subject ball bearings from Japan and the
[U.K.], when cumulated with other subject countries, will
result in the recurrence or continuation of material injury
to the domestic bearings industry.” 2010 ITC LEXIS 431,
at *98-99. According to Appellants, substantial evidence
supported the Commission’s affirmative determinations,
and the Commission provided a reasonable explanation of
how its conclusions followed from its factual findings.
Thus, Appellants contend that the Court of International
Trade inappropriately remanded the Commission’s de-
terminations and left the Commission with no choice but
to issue negative determinations that did not align with
its reasonable conclusions.
The Commission set out a number of findings indicat-
ing that the revocation of the antidumping orders cover-
ing subject imports from the U.K. and Japan, when
cumulated with those of the other subject countries,
“would be likely to lead to continuation or recurrence of
material injury within a reasonably foreseeable time.” 19
U.S.C. § 1675a(a)(1). The Commission observed that
subject producers had sufficient excess capacity to in-
crease their exports to the United States significantly.
Second Remand Determination, 2010 ITC LEXIS 431, at
*84. Further, the Commission determined that the Unit-
ed States—the second largest importer of ball bearings—
is an attractive market that offers sellers higher prices for
ball bearings than they could receive in foreign markets.
Id. at *84-85. Thus, the Commission set out facts indicat-
ing that the cumulated subject countries had strong
incentives, as well as the ability, to ship significant
amounts of ball bearings to the United States.
Paying particular attention to the competitive inter-
play among subject imports, non-subject imports, and
28 NSK CORPORATION v. ITC
domestic product, the Commission made a number of
findings supporting its conclusion that the domestic
bearings industry likely would be materially injured if the
orders at issue were revoked. The Commission reiterated
its determination that “the industry is in a vulnerable
condition” based on its observation that “the domestic
industry continued to experience significant declines in
capacity utilization, productivity, profitability, and mar-
ket share levels over the course of the [POR] and saw its
cost structure continue to erode.” Id. at *99-100. Thus,
according to the Commission, the domestic industry is
“susceptible to material injury from the cumulated subject
imports if the orders covering the cumulated subject
imports are revoked.” Id. at *99. Further, the Commis-
sion again stressed that there is a high degree of substi-
tutability among domestic bearings, subject imports, and
non-subject imports, making price a very important factor
in purchasers’ decision-making. Id. at *112.
With respect to the likely impact of revocation of the
orders on pricing and competition, the Commission de-
termined that “subject imports were likely to significantly
undersell the domestic products and were likely to have
significant adverse effects on domestic prices upon revoca-
tion of the orders.” Id. at *86. The Commission found
that subject imports frequently undersold domestic ball
bearings, even with the orders in place, suggesting that
“the cumulated subject imports are likely to become more
aggressive on price when competing with domestic bear-
ings.” Id. at *121. The Commission also concluded that
“subject imports have the ability to undersell the domestic
like products as frequently and significantly as the non-
subject imports did during the second period of review”
based on its examination of the underselling done by
subject and non-subject imports. Id. at *122. In particu-
lar, the Commission observed that, “[d]uring the first
period of review, subject imports undersold domestic like
products in 67.3 percent of comparisons, at an average
NSK CORPORATION v. ITC 29
underselling margin of 34.0 percent with margins as high
as 87 percent.” Id. at *122 (footnotes omitted). “[D]uring
the second period of review, non-subject imports under-
sold domestic like products in 66.0 percent of compari-
sons, at an average underselling margin of 35.8 percent
with margins as high as 83.4 percent.” Id. The Commis-
sion further noted that “once the orders are revoked and
the subject imports will resume a more aggressive pattern
of underselling, it is likely that they will thereby take
market share primarily from the domestic industry rather
than the non-subject imports, given that the non-subject
imports are priced lower than the domestic bearings.” Id.
at *127. Accordingly, the Commission concluded “that the
record establishes that, notwithstanding the significant
presence of low-priced, non-subject imports in the U.S.
market, the subject imports are likely to be more than a
minimal or tangential factor in the material in jury to the
domestic industry that is likely to continue or recur upon
revocation of the orders.” Id. at *101-02.
Appellees allege that, in reaching these conclusions,
the Commission did not consider adequately the impact of
imports from non-subject countries. As a consequence,
they assert that the Court of International Trade appro-
priately remanded the Commission’s determinations for
further explanation. In NSK IV, the court observed that
“[n]on-subject imports have become a significant and
price-competitive factor in the United States ball bearings
market” and concluded that “non-subject imports may
prevent the subject imports from achieving the requisite
level of causation and, therefore, serve as an impenetrable
barrier that precludes the agency from affirmatively
finding injury in this sunset review.” 712 F. Supp. 2d at
1368. Appellees argue that remand for further considera-
tion was appropriate in light of considerable record evi-
dence indicating that subject imports would cause, at
most, a minimal or tangential injury to the domestic
market if the orders at issue were revoked.
30 NSK CORPORATION v. ITC
Appellees suggest that, even if the orders affecting
imports from the subject countries were revoked, any
harm to the domestic bearing industry would result from
non-subject imports, as opposed to imports from the
subject countries. In particular, Appellees point to the
rapid growth of non-subject imports’ market share, which
increased from 5.2 percent in 1987 to 23.6 percent in
2005. Appellees also highlight the Commission’s finding
that price is an essential factor in purchasing decisions
and stress that non-subject imports were typically priced
lower than imports from subject countries. Appellees
further assert that producers in subject countries would
not be able to lower their prices sufficiently to be price-
competitive with non-subject importers. In sum, Appel-
lees contend that the subject imports would be unable to
compete effectively with non-subject imports and thus
would not be able to alter the market place significantly
or cause material harm to the domestic industry.
Having reviewed the record as a whole, we conclude
that the Commission appropriately determined that
revocation of the orders covering the subject countries, in
all likelihood, would materially injure a vulnerable do-
mestic industry. Appellees are correct that numerous
record facts detract from the Commission’s conclusion.
Non-subject imports had a significant presence in the
domestic market during the relevant periods of review
and were often sold at lower prices than domestic bear-
ings and bearings from subject countries. These facts,
however, do not detract from the Commission’s findings to
such an extent that we can say the Commission’s deter-
minations were not supported by substantial evidence.
Instead, the Commission set out a sound factual basis for
its conclusion that subject countries had the ability and
incentive to cause material injury to the domestic indus-
try if the relevant antidumping orders were revoked. As
this court has noted in the past, “it is the role of the
expert factfinder—here the majority of the Presidentially-
NSK CORPORATION v. ITC 31
appointed, Senate-approved Commissioners—to decide
which side’s evidence to believe.” Nippon Steel, 458 F.3d
at 1359. Where, as here, “there is an adequate basis in
support of the Commission’s choice of evidentiary weight,
the Court of International Trade, and this court, review-
ing under the substantial evidence standard, must defer
to the Commission.” Id.Further, the Commission specifically addressed and
rejected Appellees’ theories regarding the impact of non-
subject imports, noting that significant portions of the
record cast doubt on the interpretation of the facts that
Appellees espouse. See id. at *101-32. The Commission
observed that, “even with the restraining effects of the
orders in place, the subject imports have remained a
substantial and price-competitive factor in the mar-
ket. . . . [T]heir share of the market has ranged between
11.5 and 14.2 percent during the first and second periods
of review.” Id. at *111. The Commission also observed
that, although subject imports experienced declines in
market share after the antidumping orders were put in
place, “the subject imports retained a significant market
share throughout the second period of review” and “in-
creased their share of the market over the final three
years” of the second period of review. Id. Thus, despite
Appellees’ assertion to the contrary, substantial evidence
supports the Commission’s analysis, which showed that
subject imports could, and did, compete with non-subject
imports. Consequently, we reverse the Court of Interna-
tional Trade’s decisions in NSK V and VI and judgment
affirming the Commission’s negative determinations
regarding the orders on the U.K. and Japan, and we order
the Court of International Trade to reinstate the Commis-
sion’s affirmative material injury determination reached
in the Second Remand Determination.
32 NSK CORPORATION v. ITC
E. Cross-Appeals
Schaeffler and SKF (collectively, “Cross-Appellants”)
argue that the negative determination with respect to
Japan should have applied to Italy, Germany, and France
as well. Because we are reinstating the Commission’s
affirmative determinations with respect to these coun-
tries, however, the issues raised by Cross-Appellants are
rendered moot.
CONCLUSION
For the reasons stated above, we find that the Com-
mission’s affirmative determination in its Second Remand
Determination was supported by substantial evidence,
and the Court of International Trade erred by concluding
otherwise. Accordingly, we (1) reverse the Court of Inter-
national Trade’s decisions in NSK V and VI and judgment
affirming the Commission’s negative determinations
regarding the orders on the U.K. and Japan; (2) vacate
the Court of International Trade’s decision in NSK IV;
(3) instruct the Court of International Trade to vacate the
Commission’s negative material injury determinations in
the Third and Fourth Remand Determinations; and
(4) order the Court of International Trade to reinstate the
Commission’s affirmative material injury determination
reached in the Second Remand Determination.
REVERSED