NMB Singapore Ltd. v. United States

Slip Op. 03-115

UNITED STATES COURT OF INTERNATIONAL TRADE

BEFORE: SENIOR JUDGE NICHOLAS TSOUCALAS

________________________________________
:
NMB SINGAPORE LTD. and :
PELMEC INDUSTRIES (PTE) LTD.; :
NSK-RHP EUROPE LTD., RHP BEARINGS LTD. :
and NSK BEARINGS EUROPE LTD.; :
SKF USA INC., SKF INDUSTRIE S.p.A., :
SKF FRANCE S.A., SARMA and SKF GmbH; :
NTN BEARING CORPORATION OF AMERICA, :
AMERICAN NTN BEARING MANUFACTURING :
CORPORATION, NTN BOWER CORPORATION, :
NTN DRIVESHAFT INCORPORATED, :
NTN-BCA CORPORATION and :
NTN CORPORATION, :
:
Plaintiffs, :
:
and :
:
THE BARDEN CORPORATION (U.K.) LIMITED : Consol. Court No.
and THE BARDEN CORPORATION; : 00-07-00373
FAG ITALIA S.p.A., :
FAG KUGELFISCHER GEORG SCHAFER AG and :
FAG BEARINGS CORPORATION, :
:
Plaintiff-Intervenors, :
:
v. :
:
UNITED STATES, :
:
Defendant, :
:
and :
:
TIMKEN U.S. CORPORATION, :
:
Defendant-Intervenor. :
________________________________________:

This consolidated action concerns the claims raised by
plaintiffs, NMB Singapore Ltd. and Pelmec Industries (PTE) Ltd.
(collectively “NMB”), NSK-RHP Europe Ltd., RHP Bearings Ltd. and
Consol. Court No. 00-07-00373 Page 2

NSK Bearings Europe Ltd. (collectively “NSK-RHP”), SKF USA Inc.,
SKF Industrie S.p.A., SKF France S.A., SARMA and SKF GmbH
(collectively “SKF”), NTN Bearing Corporation of America, American
NTN Bearing Manufacturing Corporation, NTN Bower Corporation, NTN
Driveshaft Incorporated, NTN-BCA Corporation and NTN Corporation
(collectively “NTN”), and plaintiff-intervenors, The Barden
Corporation (U.K.) Limited, The Barden Corporation, FAG Italia
S.p.A., FAG Kugelfischer Georg Schafer AG and FAG Bearings
Corporation (collectively “FAG”), who move pursuant to USCIT R.
56.2 for judgment upon the agency record challenging the United
States International Trade Commission’s (“Commission” or “ITC”)
five-year sunset review final determination, entitled Certain
Bearings From China, France, Germany, Hungary, Italy, Japan,
Romania, Singapore, Sweden, and the United Kingdom, 65 Fed. Reg.
39,925 (June 28, 2000), in which the ITC found inter alia that
“revocation of the antidumping duty orders on . . . [ball] bearings
from . . . France, Germany, Italy, Japan, Singapore, and the United
Kingdom would be likely to lead to continuation or recurrence of
material injury to an industry in the United States within a
reasonably foreseeable time.” The Commission’s complete
determination was published in Certain Bearings From China, France,
Germany, Hungary, Italy, Japan, Romania, Singapore, Sweden, and the
United Kingdom (“Final Determination”), Inv. Nos. AA1921-143, 731-
TA-341, 731-TA-343-345, 731-TA-391-397, and 731-TA-399 (Review),
USITC Pub. 3309 (June 2000).

Specifically, NMB contends that the ITC erred in: (1)
cumulating the subject imports from Singapore with other subject
imports; and (2) determining that revocation of the antidumping
duty orders with respect to subject imports would likely lead to
continuation or recurrence of material injury.

NSK-RHP contends that the ITC erred in: (1) not treating
aerospace drive path bearings as a separate like product from ball
bearings; (2) cumulating the subject imports from the United
Kingdom with other subject imports; and (3) determining that
revocation of the antidumping duty orders with respect to subject
imports would likely lead to continuation or recurrence of material
injury.

SKF contends that the ITC erred in: (1) cumulating the subject
imports from France, Germany, and Italy with other subject imports;
and (2) determining that revocation of the antidumping duty orders
with respect to subject imports would likely lead to continuation
or recurrence of material injury.
Consol. Court No. 00-07-00373 Page 3

NTN contends that the ITC erred in: (1) not treating wheel hub
units as a separate like product from ball bearings; (2) not
treating aerospace drive path bearings as a separate like product
from ball bearings; (3) cumulating the subject imports from Japan
with other subject imports; (4) determining the conditions of
competition in the domestic ball bearing industry; and (5)
determining that revocation of the antidumping duty orders with
respect to subject imports would likely lead to continuation or
recurrence of material injury.

FAG contends that the ITC erred in cumulating the subject
imports from Italy and the United Kingdom with other subject
imports.

Held: NMB’s, SKF’s and FAG’s 56.2 motions are granted. NSK-
RHP’s and NTN’s 56.2 motions are granted in part and denied in
part. This case is remanded to the Commission to: (1) explain how
commodity-like the Commission deems the other antifriction
bearings; and (2)(a) apply this Court’s finding as to the meaning
of the term “likely” in determining, pursuant to 19 U.S.C. §
1675a(a)(7) (1994), whether to cumulate subject imports of ball
bearings from France, Germany, Italy, Japan, Singapore and the
United Kingdom, (b) reconcile the error alleged by NMB with respect
to NMB’s sister company, if the Commission utilizes NMB’s sister
company in the Commission’s cumulation determination, and (c) apply
this Court’s finding as to the meaning of the term “likely” in
determining, pursuant to 19 U.S.C. § 1675a(a)(1) (1994), whether
revocation of antidumping duty orders on ball bearings from France,
Germany, Italy, Japan, Singapore and the United Kingdom would
likely lead to continuation or recurrence of material injury.

[NMB’s, SKF’s and FAG’s 56.2 motions are granted. NSK-RHP’s and
NTN’s 56.2 motions are granted in part and denied in part. Case
remanded.]

Dated: September 3, 2003

White & Case LLP (Walter J. Spak, Christopher F. Corr, Richard
J. Burke, Lyle B. Vander Schaaf, Lynn H. Fabrizio and Frank H.
Morgan) for NMB, plaintiffs.

Crowell & Moring LLP (Robert A. Lipstein, Matthew P. Jaffe and
Grace W. Lawson) for NSK-RHP, plaintiffs.

Steptoe & Johnson LLP (Herbert C. Shelley, Alice A. Kipel,
David N. Tanenbaum and Mary T. Mitchell) for SKF, plaintiffs.
Consol. Court No. 00-07-00373 Page 4

Barnes, Richardson & Colburn (Donald J. Unger, Kazumune V.
Kano, David G. Forgue and Shannon N. Rickard) for NTN, plaintiffs.

Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP (Max
F. Schutzman, Andrew B. Schroth, Mark E. Pardo and Adam M. Dambrov)
for FAG, plaintiff-intervenors.

Lyn M. Schlitt, General Counsel; James M. Lyons, Deputy
General Counsel, Office of the General Counsel, United States
International Trade Commission (Mary Elizabeth Jones and Andrea C.
Casson) for the United States, defendant.

Stewart and Stewart (Terence P. Stewart, Geert De Prest, Amy
A. Karpel and Lane S. Hurewitz) for Timken U.S. Corporation,
defendant-intervenor.1

OPINION

TSOUCALAS, Senior Judge: This consolidated action concerns

the claims raised by plaintiffs, NMB Singapore Ltd. and Pelmec

Industries (PTE) Ltd. (collectively “NMB”), NSK-RHP Europe Ltd.,

RHP Bearings Ltd. and NSK Bearings Europe Ltd. (collectively “NSK-

RHP”), SKF USA Inc., SKF Industrie S.p.A., SKF France S.A., SARMA

and SKF GmbH (collectively “SKF”), NTN Bearing Corporation of

America, American NTN Bearing Manufacturing Corporation, NTN Bower

Corporation, NTN Driveshaft Incorporated, NTN-BCA Corporation and

NTN Corporation (collectively “NTN”), and plaintiff-intervenors,

The Barden Corporation (U.K.) Limited, The Barden Corporation, FAG

1
In a letter, dated February 28, 2003, Stewart and Stewart
advised the Court that The Torrington Company was acquired by The
Timken Company, and is now known as Timken U.S. Corporation. The
Court will refer to the defendant-intervenor as Timken in this
action.
Consol. Court No. 00-07-00373 Page 5

Italia S.p.A., FAG Kugelfischer Georg Schafer AG and FAG Bearings

Corporation (collectively “FAG”), who move pursuant to USCIT R.

56.2 for judgment upon the agency record challenging the United

States International Trade Commission’s (“Commission” or “ITC”)

five-year sunset review final determination, entitled Certain

Bearings From China, France, Germany, Hungary, Italy, Japan,

Romania, Singapore, Sweden, and the United Kingdom, 65 Fed. Reg.

39,925 (June 28, 2000), in which the ITC found inter alia that

“revocation of the antidumping duty orders on . . . [ball] bearings

from . . . France, Germany, Italy, Japan, Singapore, and the United

Kingdom would be likely to lead to continuation or recurrence of

material injury to an industry in the United States within a

reasonably foreseeable time.” The Commission’s complete

determination was published in Certain Bearings From China, France,

Germany, Hungary, Italy, Japan, Romania, Singapore, Sweden, and the

United Kingdom (“Final Determination”), Inv. Nos. AA1921-143, 731-

TA-341, 731-TA-343-345, 731-TA-391-397, and 731-TA-399 (Review),

USITC Pub. 3309 (June 2000).

Specifically, NMB contends that the ITC erred in: (1)

cumulating the subject imports from Singapore with other subject

imports; and (2) determining that revocation of the antidumping

duty orders with respect to subject imports would likely lead to

continuation or recurrence of material injury.
Consol. Court No. 00-07-00373 Page 6

NSK-RHP contends that the ITC erred in: (1) not treating

aerospace drive path bearings as a separate like product from ball

bearings; (2) cumulating the subject imports from the United

Kingdom with other subject imports; and (3) determining that

revocation of the antidumping duty orders with respect to subject

imports would likely lead to continuation or recurrence of material

injury.

SKF contends that the ITC erred in: (1) cumulating the subject

imports from France, Germany, and Italy with other subject imports;

and (2) determining that revocation of the antidumping duty orders

with respect to subject imports would likely lead to continuation

or recurrence of material injury.

NTN contends that the ITC erred in: (1) not treating wheel hub

units as a separate like product from ball bearings; (2) not

treating aerospace drive path bearings as a separate like product

from ball bearings; (3) cumulating the subject imports from Japan

with other subject imports; (4) determining the conditions of

competition in the domestic ball bearing industry; and (5)

determining that revocation of the antidumping duty orders with

respect to subject imports would likely lead to continuation or

recurrence of material injury.
Consol. Court No. 00-07-00373 Page 7

FAG contends that the ITC erred in cumulating the subject

imports from Italy and the United Kingdom with other subject

imports.

BACKGROUND

In May 1989, the ITC determined that an industry in the United

States was being materially injured as a result of less than fair

value (“LFTV”) imports of ball bearings from France, Germany,

Italy, Japan, Romania, Singapore, Sweden, and the United Kingdom.

See Antifriction Bearings (Other Than Tapered Roller Bearings) and

Parts Thereof from the Federal Republic of Germany, France, Italy,

Japan, Romania, Singapore, Sweden, Thailand, and the United Kingdom

(“Original Determination”), Inv. Nos. 303-TA-19 and 20 (Final) and

731-TA-391-399 (Final), USITC Pub. 2185 (May 1989). The Department

of Commerce (“Commerce”) subsequently published antidumping duty

orders covering the subject merchandise from the aforementioned

countries on May 15, 1989. See Antidumping Duty Orders: Ball

Bearings, Cylindrical Roller Bearings, and Spherical Plain Bearings

and Parts Thereof From the Federal Republic of Germany, 54 Fed.

Reg. 20,900; Antidumping Duty Orders: Ball Bearings, Cylindrical

Roller Bearings, Spherical Plain Bearings, and Parts Thereof From

France, 54 Fed. Reg. 20,902; Antidumping Duty Orders: Ball Bearings

and Cylindrical Roller Bearings, and Parts Thereof From Italy, 54

Fed. Reg. 20,903; Antidumping Duty Orders: Ball Bearings,
Consol. Court No. 00-07-00373 Page 8

Cylindrical Roller Bearings, and Spherical Plain Bearings, and

Parts Thereof From Japan, 54 Fed. Reg. 20,904; Antidumping Duty

Order: Ball Bearings and Parts Thereof From Romania, 54 Fed. Reg.

20,906; Antidumping Duty Order of Sales at Less Than Fair Value:

Ball Bearings and Parts Thereof From Singapore, 54 Fed. Reg.

20,907; Antidumping Duty Orders: Ball Bearings, Cylindrical Roller

Bearings, and Parts Thereof From Sweden, 54 Fed. Reg. 20,907; and

Antidumping Duty Orders and Amendments to the Final Determinations

of Sales at Less Than Fair Value: Ball Bearings, and Cylindrical

Roller Bearings and Parts Thereof From the United Kingdom, 54 Fed.

Reg. 20,910.

On April 1, 1999, the Commission instituted five-year sunset

reviews pursuant to 19 U.S.C. § 1675(c) (1994) to determine whether

revocation of antidumping duty orders on certain bearings,

including ball bearings from France, Germany, Italy, Japan,

Romania, Singapore, Sweden, and the United Kingdom, would likely

lead to continuation or recurrence of material injury. See Certain

Bearings From China, France, Germany, Hungary, Italy, Japan,

Romania, Singapore, Sweden, and the United Kingdom, 64 Fed. Reg.

15,783 (April 1, 1999). On July 2, 1999, the Commission determined

that it would conduct full reviews.2 See Certain Bearings From

2
In a five-year review, the ITC may conduct a full review or
an expedited review. A full review includes a public hearing, the
issuance of questionnaires, and other procedures, whereas an
(continued...)
Consol. Court No. 00-07-00373 Page 9

China, France, Germany, Hungary, Italy, Japan, Romania, Singapore,

Sweden, and the United Kingdom, 64 Fed. Reg. 38,471 (July 16,

1999). A revised notice regarding scheduling and a public hearing

was published on December 1, 1999. See Certain Bearings From

China, France, Germany, Hungary, Italy, Japan, Romania, Singapore,

Sweden, and the United Kingdom, 64 Fed. Reg. 67,304 (December 1,

1999). The Commission held a hearing on March 21, 2000. See Final

Determination, USITC Pub. 3309, Vol. 1 at 2.

The Commission cumulated subject imports from France, Germany,

Italy, Japan, Singapore and the United Kingdom,3 see id. at 33, and

2
(...continued)
expedited review does not encompass such procedures. See 19 C.F.R.
§§ 207.60(b)-(c) & 207.62(c)-(d) (1999).
3
During the issuance of Final Determination, USITC Pub. 3309,
the Commission was comprised of Chairman Koplan, Vice Chairman Okun
and Commissioners Bragg, Miller, Hillman and Askey. Vice Chairman
Okun, however, did not participate in the review. See Final
Determination, USITC Pub. 3309, Vol. 1 at 1. Commissioner Bragg
“cumulatively analyzed the likely effects of revocation of the
orders on [ball bearings] from all eight subject countries” (that
is, France, Germany, Italy, Japan, Singapore, the United Kingdom,
Romania and Sweden). See Final Determination, USITC Pub. 3309,
Vol. 1, Separate and Dissenting Views of Commissioner Lynn M. Bragg
(“Bragg’s Views”) at 70. Commissioner Miller cumulated the imports
of the subject merchandise from France, Germany, Italy, Japan,
Romania, Singapore, and the United Kingdom. See Final
Determination, USITC Pub. 3309, Vol. 1, Separate and Dissenting
Views of Commissioner Marcia E. Miller (“Miller’s Views”) at 90.
Commissioner Hillman does not cumulate ball bearings from Singapore
with those from France, Germany, Italy, Japan and the United
Kingdom. See Final Determination, USITC Pub. 3309, Vol. 1,
Separate and Dissenting Views of Commissioner Jennifer A. Hillman
(“Hillman’s Views”) at 105. Commissioner Askey does not cumulate
(continued...)
Consol. Court No. 00-07-00373 Page 10

in June 2000, voted that revocation of the antidumping duty orders

on the subject merchandise from those countries would likely lead

to continuation or recurrence of material injury within a

reasonably foreseeable time.4 See id. at 52. Plaintiffs inter

alia challenge the Commission’s cumulation as well as the

Commission’s affirmative determination upon cumulation. On

3
(...continued)
the subject imports from Sweden, Romania, the United Kingdom and
France, but cumulates the subject imports from Germany, Italy,
Japan and Singapore. See Final Determination, USITC Pub. 3309,
Vol. 1, Concurring and Dissenting Views of Commissioner Thelma J.
Askey (“Askey’s Views”) at 129-34.
4
Commissioner Hillman determined that revocation of the
antidumping duty order on ball bearings from Singapore would not
likely lead to continuation or recurrence of material injury within
a reasonably foreseeable time. See Final Determination, USITC Pub.
3309, Vol. 1 at 52 n.394; see also Final Determination, USITC Pub.
3309, Vol. 1, Hillman’s Views at 106. Commissioner Askey concurred
that revocation of the antidumping duty order on ball bearings from
France would likely lead to continuation or recurrence of material
injury within a reasonably foreseeable time but dissented with
respect to ball bearings from Germany, Italy, Japan, Singapore, and
the United Kingdom. See Final Determination, USITC Pub. 3309, Vol.
1 at 52 n.396; see also Final Determination, USITC Pub. 3309, Vol.
1, Askey’s Views at 136-43. Chairman Koplan, Commissioner Bragg
and Commissioner Miller voted in favor of not revoking the
antidumping duty orders on ball bearings from France, Germany,
Italy, Japan, Singapore and the United Kingdom. See Final
Determination, USITC Pub. 3309, Vol. 1 at 52. Commissioner Bragg
clarified her affirmative determination via footnotes added to the
ITC’s opinion. See Final Determination, USITC Pub. 3309, Vol. 1 at
39-42; See also Final Determination, USITC Pub. 3309, Vol. 1,
Bragg’s Views at 68-70.

The Court notes that the Commission’s determination “that
revocation of the antidumping duty orders on [ball bearings] from
Romania and Sweden would not be likely to lead to continuation or
recurrence of material injury to an industry in the United States
within a reasonably foreseeable time[]” is not at issue in this
case. Final Determination, USITC Pub. 3309, Vol. 1 at 52.
Consol. Court No. 00-07-00373 Page 11

November 3, 2000, this Court granted NMB’s motion for preliminary

injunction. An oral argument was held before this Court on October

10, 2001. Additionally, this Court on August 2, 2002, granted NSK-

RHP’s motion for preliminary injunction.

JURISDICTION

The Court has jurisdiction over this matter pursuant to 19

U.S.C. § 1516a(a)(2)(A)(i)(I) (2000) and 28 U.S.C. § 1581(c)

(2000).

STANDARD OF REVIEW

The Court will uphold the Commission’s final determination in

a full five-year sunset review unless it is “unsupported by

substantial evidence on the record, or otherwise not in accordance

with law.” 19 U.S.C. § 1516a(b)(1)(B)(i) (1994); see NTN Bearing

Corp. of America v. United States, 24 CIT 385, 389-90, 104 F. Supp.

2d 110, 115-16 (2000) (detailing the Court’s standard of review for

agency determinations). “‘Substantial evidence is more than a mere

scintilla. It means such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.’” Matsushita

Elec. Indus. Co. v. United States, 750 F.2d 927, 933 (Fed. Cir.

1984)(quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229

(1938)). “[T]he possibility of drawing two inconsistent

conclusions from the [same] evidence does not” preclude the Court
Consol. Court No. 00-07-00373 Page 12

from holding that the agency finding is supported by substantial

evidence. Consolo v. Federal Mar. Comm’n, 383 U.S. 607, 620

(1966). An agency determination will not be “overturned merely

because the plaintiff ‘is able to produce evidence . . . in support

of its own contentions and in opposition to the evidence supporting

the agency’s determination.’” Torrington Co. v. United States, 14

CIT 507, 514, 745 F. Supp. 718, 723 (1990)(internal citation

omitted), aff’d, 938 F.2d 1276 (Fed. Cir. 1991).

Additionally, to determine whether the Commission’s

interpretation and application of a statute is “in accordance with

law,” the Court must undertake the two-step analysis prescribed by

Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467

U.S. 837 (1984). Under the first step, the Court reviews the

Commission’s construction of a statutory provision to determine

whether “Congress has directly spoken to the precise question at

issue.” Id. at 842. “To ascertain whether Congress had an

intention on the precise question at issue, [the Court] employ[s]

the ‘traditional tools of statutory construction.’” Timex V.I.,

Inc. v. United States, 157 F.3d 879, 882 (Fed. Cir. 1998) (citing

Chevron, 467 U.S. at 843 n.9). “The first and foremost ‘tool’ to

be used is the statute’s text, giving it its plain meaning.

Because a statute’s text is Congress’ final expression of its

intent, if the text answers the question, that is the end of the

matter.” Id. (citations omitted). Beyond the statute’s text, the
Consol. Court No. 00-07-00373 Page 13

tools of statutory construction “include the statute’s structure,

canons of statutory construction, and legislative history.” Id.

(citations omitted); but see Floral Trade Council v. United States,

23 CIT 20, 22 n.6, 41 F. Supp. 2d 319, 323 n.6 (1999) (noting that

“[n]ot all rules of statutory construction rise to the level of a

canon, however”) (citation omitted).

If, after employing the first prong of Chevron, the Court

determines that the statute is silent or ambiguous with respect to

the specific issue, the question for the Court becomes whether the

Commission’s construction of the statute is permissible. See

Chevron, 467 U.S. at 843. Essentially, this is an inquiry into the

reasonableness of the Commission’s interpretation. See Fujitsu

Gen. Ltd. v. United States, 88 F.3d 1034, 1038 (Fed. Cir. 1996).

Provided the Commission has acted rationally, the Court may not

substitute its judgment for the agency’s. See Koyo Seiko Co. v.

United States, 36 F.3d 1565, 1570 (Fed. Cir. 1994) (holding that “a

court must defer to an agency’s reasonable interpretation of a

statute even if the court might have preferred another”); see also

IPSCO, Inc. v. United States, 965 F.2d 1056, 1061 (Fed. Cir. 1992).

The “[C]ourt will sustain the determination if it is reasonable and

supported by the record as a whole, including whatever fairly

detracts from the substantiality of the evidence.” Negev

Phosphates, Ltd. v. United States, 12 CIT 1074, 1077, 699 F. Supp.

938, 942 (1988) (citations omitted). In determining whether the
Consol. Court No. 00-07-00373 Page 14

Commission’s interpretation is reasonable, the Court considers the

following non-exclusive list of factors: the express terms of the

provisions at issue, the objectives of those provisions and the

objectives of the antidumping scheme as a whole. See Mitsubishi

Heavy Indus. v. United States, 22 CIT 541, 545, 15 F. Supp. 2d 807,

813 (1998).

DISCUSSION

I. The Commission’s Like Product Determination

A. Statutory Background

In a five-year review, the ITC determines whether revocation

of an antidumping duty order would likely “lead to continuation or

recurrence of dumping . . . [and] material injury.” 19 U.S.C. §

1675(c)(1). “To determine whether an industry in the United States

is materially injured or threatened with material injury by reason

of imports of the subject merchandise, the ITC must first define

the ‘domestic like product’ and the ‘industry’ producing the

product.” Chefline Corp. v. United States, 25 CIT ___, ___, 170 F.

Supp. 2d 1320, 1325 (2001). Title 19, United States Code, §

1677(10) defines “domestic like product” as “a product which is

like, or in the absence of like, most similar in characteristics

and uses with, the article subject to an investigation.” 19 U.S.C.

§ 1677(10) (1994). Section 1677(4)(A) of Title 19 defines

“industry” as “the producers as a whole of a domestic like product,
Consol. Court No. 00-07-00373 Page 15

or those producers whose collective output of a domestic like

product constitutes a major proportion of the total domestic

production of the product.” 19 U.S.C. § 1677(4)(A) (1994). In

defining the “like product,” the Commission typically considers:

(1) physical characteristics and uses; (2) interchangeability of

the products; (3) channels of distribution; (4) customer and

producer perceptions of the products; (5) the use of common

manufacturing facilities and personnel; and (6) price. See Timken

v. United States, 20 CIT 76, 80, 913 F. Supp. 580, 584 (1996)

(citing Aramide Maatschappij V.O.F. v. United States, 19 CIT 884,

885 (1995); Calabrian Corp. v. United States, 16 CIT 342, 346 n.4,

797 F. Supp. 377, 382 n.4 (1992); Torrington Co. v. United States,

14 CIT 648, 652, 747 F. Supp. 744, 749 (1990), aff’d, 938 F.2d 1278

(1991)). “The Commission generally disregards minor differences,

and looks for clear dividing lines between like products.” Nippon

Steel Corp. v. United States, 19 CIT 450, 455 (1995).

Moreover, in its Rules of Practice and Procedure regarding

sunset reviews, the Commission has stated:

In appropriate circumstances, the Commission may
revisit its original domestic like product . . .
determination[] in five-year reviews. For example, the
Commission may revisit its like product determination
when there have been significant changes in the products
at issue since the original investigation or when
domestic like product definitions differed for individual
orders within a group concerning similar products.

63 Fed. Reg. 30,599, 30,602 (June 5, 1998); See also 19 U.S.C. §
Consol. Court No. 00-07-00373 Page 16

1675a(a)(1)(A) (1994).

B. Commission Findings

“The Commission began its like product determination by

reviewing the findings made in the Original Determination.” Def.

U.S. ITC’s Mem. Opp’n Pls.’ Mot. J. Agency R. (Def.’s Mem.) at 13.

1. Original Determination

In the Original Determination, the ITC “determine[d],

consistent with [its] preliminary determination, that there [were]

separate like products, within antifriction bearings generally,

based upon the type of rolling element employed.” Original

Determination, USITC Pub. 2185 at 16. The ITC found “six separate

like products: (1) ball bearings[;] (2) spherical roller

bearings[;] (3) cylindrical roller bearings[;] (4) needle roller

bearings[;] (5) spherical plain bearings[;] and (6) slewing rings.”

Id. at 33. Additionally, the Commission rejected arguments to

treat wheel hub units and aerospace drive path (“ADP”) ball

bearings as separate like products. See id. at 20-25. In

particular, with respect to wheel hub units, the Commission stated:

[The Commission] determine[d] that wheel hub units
are not a separate like product. They are not
significantly different from other ball bearings,
especially other housed and mounted ball bearings, in
terms of functional characteristics and applications. In
addition, like other housed bearings, if the bearing in
a wheel hub unit wears out, the entire unit must be
Consol. Court No. 00-07-00373 Page 17

replaced. Thus the unit itself is inseparable from its
bearing functions. Moreover, none of the respondents
agree as to the definition of this allegedly separate
like product. Some make no distinction among the
generations of wheel hub units, others define the product
as generations 2 and 3, and still others define it as
just generation 3. Such definitional vagueness was
fatal, in [the Commission’s] view, to the evaluation of
other candidates for separate like product treatment,
such as “aerospace” bearings, and is similarly fatal
here. . . . [The Commission] include[s] wheel hub units
in the like product category corresponding to the type of
rolling element employed therein. Specifically, in these
investigations, they are ball bearings.

Original Determination, USITC Pub. 2185 at 21-22 (citations

omitted). With respect to ADP bearings, the Commission stated:

[The Commission] determine[d] that “aerospace”
bearings, however defined, do not constitute a separate
like product. Like product distinctions based solely
upon end use are suspect, at least in investigations
involving intermediate products such as bearings, in
which there are literally thousands of separate products,
none of which can be substituted for another in their
specific applications. The use of high quality raw
materials, extensive documentation of the production
process to facilitate traceability, and technologically
advanced production methods are common to all
superprecision bearings and, thus, does not distinguish
aerospace bearings from other superprecision bearings
that are not consumed by the aerospace industry.

Original Determination, USITC Pub. 2185 at 24 (citations and

emphasis omitted).

2. Final Determination: Wheel Hub Units

During the five-year review at issue, NTN “advocated in

response to the notice of institution and in [NTN’s] prehearing

brief that the Commission treat wheel hub units as a separate like
Consol. Court No. 00-07-00373 Page 18

product.” Final Determination, USITC Pub. 3309, Vol. 1 at 8

(citations omitted); see also Def.’s Mem., App. Vol. 1, Doc. No.

129 (NTN’s Response to the Notice of Institution) at 23-24 and Doc.

No. 602 (NTN’s Prehearing Brief) at 10-13. In the Final

Determination, the Commission stated that “[t]he Commission in its

1989 determination [that is, Original Determination, USITC Pub.

2185 at 20-22] on antifriction bearings other than [tapered roller

bearings] considered and rejected arguments that wheel hub units

should be carved out as a separate like product from the general

category of [ball bearings].” Final Determination, USITC Pub.

3309, Vol. 1 at 8 (citation omitted).

3. Final Determination: ADP Bearings

Additionally, during the five-year review at issue, “[s]everal

parties argue[d] throughout these reviews that aerospace drive path

. . . ball bearings . . . comprise separate like products.” Final

Determination, USITC Pub. 3309, Vol. 1 at 8. In particular, the

parties argued that “the Commission in its [Original Determination,

USITC Pub. 2185 at 22-25] did not consider the like product issue

with respect to the narrow category of ADP bearings as defined in

the Commission’s questionnaires and that the prevalent use today of

specialty steels to make ADP bearings is a major development since

the orders were imposed.” Id. at 9 (citation omitted).

Subsequently, the ITC considered whether ADP ball bearings
Consol. Court No. 00-07-00373 Page 19

constituted a separate like product and determined:

[The Commission] do[es] not find that ADP bearings
comprise a separate domestic like product. While the
record indicates some differences in physical
characteristics, end uses, interchangeability, price, and
facilities between ADP bearings and other [ball bearings]
. . ., [the Commission] find[s] that the similarities
outweigh these differences. The record shows that the
special materials and special machinery and facilities
used to produce ADP bearings are also used in the
production of other highly specialized bearings and that
other types of precision and non-precision bearings may
command prices as high as those for ADP bearings. With
respect to interchangeability, all bearings, and not ADP
bearings in particular, are only interchangeable with
other bearings on a parts number basis. Customer
perception is of limited use in distinguishing ADP
bearings as a separate product category, given that
purchasers typically buy all types of bearings by part
number and are familiar only with the specifications of
the particular products they purchase. In addition,
while ADP bearings are sold only to OEMs [original
equipment manufacturers], so is the majority of [United
States] producers’ sales of non-ADP ball . . . bearings,
with [United States] producers shipping 79.1 percent of
their [United States] [ball bearing] shipments . . . to
OEMs. In cases such as the present one, where the
domestically manufactured merchandise is made up of a
continuum of similar products, [the Commission] normally
do[es] not consider each item of merchandise to be a
separate domestic like product that is only “like” its
counterpart in the scope, but consider[s] the continuum
itself to constitute the domestic like product. Given
the “continuum” nature of bearings, then, [the
Commission] conclude[s] that there is no clear dividing
line between ADP bearings and all other types of
bearings.

Final Determination, USITC Pub. 3309, Vol. 1 at 12-13 (citations

omitted).
Consol. Court No. 00-07-00373 Page 20

C. Analysis

1. Contentions of the Parties: Wheel Hub Units

NTN contends that the “ITC erred when it failed to treat wheel

hub units as separate like products from ball bearings.” Pl. NTN’s

Mot. and Mem. Supp. J. Agency R. (NTN’s Mot.) at 69. In

particular, NTN argues that the Commission “failed to provide any

discernible reasoning whatsoever for [its] decision [not to treat

wheel hub units as separate like products from ball bearings], and

failed to address the record evidence presented in this review.”

Id. at 69-70. Relying on Bowman Transp., Inc. v. Arkansas-Best

Freight Sys., Inc., 419 U.S. 281, 285 (1974), NTN maintains that

the Commission’s Final Determination “violates the mandate that

agencies ‘articulate a rational connection between the facts found

and the choice made.’” NTN’s Mot. at 70; see also id. at 70-71

(citing Taiwan Semiconductor Indus. Ass’n v. United States, 23 CIT

410, 418, 59 F. Supp. 2d 1324, 1332 (1999), aff’d, 266 F.3d 1339

(Fed. Cir. 2001), reh’g denied, 2001 U.S. App. LEXIS 27637, * (Fed.

Cir. Dec. 4, 2001); Asociacion Colombiana de Exportadores de Flores

v. United States, 12 CIT 1174, 1177, 704 F. Supp. 1068, 1071

(1988); Burlington Truck Lines, Inc. v. United States, 371 U.S.

156, 167-68 (1962)). Moreover, NTN asserts that although the

Commission cited to the Original Determination in the Commission’s

Final Determination, the Commission “does not indicate that the

findings from [the Original Determination] apply to the separate
Consol. Court No. 00-07-00373 Page 21

facts of the record for [the] investigation” at bar, that is, the

Final Determination. NTN’s Mot. at 71 (citing Acciai Speciali

Terni v. United States, 24 CIT 1064, 1080, 118 F. Supp. 2d 1298,

1312-13 (2000), dismissed, 2001 U.S. App. LEXIS 1651, *, (Fed. Cir.

Jan. 23, 2001). NTN, therefore, requests that this Court remand

this issue to the ITC with instructions “that the ITC provide a

rationale for its failure to treat wheel hub units as separate like

products from ball bearings.” NTN’s Mot. at 71.

Next, NTN argues that the record evidence indicates that wheel

hub units should be treated as separate like products from ball

bearings because: (1) “wheel hub units have significantly different

physical characteristics and end uses from ball bearings . . .

[that is,] the incorporation of a hub onto which wheels are

mounted, special heat treating, low carbon steel as a raw input,

and in some cases splined inner rings[,]” id. at 73 (citing Pl.

NTN’s Pub. Appendices Mot. and Mem. Supp. J. Agency R. (“NTN’s

App.”) 9 (NTN’s Prehearing Brief) at 10-11); (2) “regarding

interchangeability, . . . because of their unique construction and

unique application, no other bearing product can be substituted for

a wheel hub unit[,]” NTN’s Mot. at 73 (citing NTN’s App. 9 at 11);

(3) “[r]egarding the channels of distribution utilized for wheel

hub units, . . . [w]heel hub units are sold essentially only to

original equipment manufacturers . . . , and are typically sold
Consol. Court No. 00-07-00373 Page 22

through the automotive parts division, rather than general sales

divisions . . . and . . . typically do not even appear in general

bearing catalogs[,]” NTN’s Mot. at 73-74 (citing NTN’s App. 9 at

11-12); (4) “regarding the production facilities, processes, and

employees used in the production of wheel hub units, . . . the

production process [for wheel hub units] is significantly different

from the process for ball bearings[,]” NTN’s Mot. at 74 (citing

NTN’s App. 9 at 12); and (5) “wheel hub units are priced completely

different from ball bearings.” Id.

Finally, NTN contends that the Commission drew an unjustified

adverse inference because NTN failed to address the like product

treatment of wheel hub units at the hearing or in NTN’s posthearing

brief. See NTN’s Mot. at 74-76. NTN maintains that: (1) NTN’s

Response to the Notice of Institution and prehearing brief “are

documents on the record for this matter[,]” id. at 72 (citing 19

U.S.C. § 1516a(b)(2)(A) (1994) and Acciai, 24 CIT at 1071, 118 F.

Supp. 2d at 1305); (2) “the hearing, which was scheduled for one

day only, included over 30 filed appearances in support of

revocation alone, and very strict time limits on the presentation

of information[,]” NTN’s Mot. at 75; and (3) “19 C.F.R. §

201.13(i)(1) (1996) clearly indicates that ‘information produced at

the hearing and arguments thereon may be presented to the

Commission . . . ’ in post-hearing briefs. Therefore, because NTN
Consol. Court No. 00-07-00373 Page 23

was unable to raise this issue at the hearing, it was also unable

to raise the issue in its post-hearing brief.” Id.

The Commission responds that the “Commission’s determination

to include wheel hub units in the domestic like product of ball

bearings was supported by substantial evidence and in accordance

with law.” Def.’s Mem. at 36. Specifically, the Commission

asserts that: (1) “the Commission is not required to indicate in

its determination that it considered each specific item of

evidence[,]” id. at 38 (citing Granges Metallverken v. United

States, 13 CIT 471, 478-79, 716 F. Supp. 17, 24 (1989), and Rhone-

Poulenc, S.A. v. United States, 8 CIT 47, 55, 592 F. Supp. 1318,

1326 (1984)); (2) “[i]n a five-year review, the Commission does not

have an obligation, in the absence of new information, to conduct

a re-evaluation of a like product issue that it had considered and

resolved in the course of the original review absent substantiated

circumstances warranting such a review[,]” Def.’s Mem. at 38

(citing Rules of Practice and Procedure, 63 Fed. Reg. at 30,602);

(3) unlike the proponents of a separate like product definition for

ADP ball bearings, “NTN did not offer any information to indicate

that significant changes in the product [that is, wheel hub units]

had occurred, warranting a review of the determination[,]” Def.’s

Mem. at 39; and (4) “the Commission had an unambiguous statement

from the only domestic producer of wheel hub units that the product
Consol. Court No. 00-07-00373 Page 24

was properly classified as a ball bearing.”5 Id. (citing Def.’s

Mem., App. Vol. 1, Doc. No. 12 at 8 (confidential version)).

Additionally, the Commission responds to NTN’s assertion that

the Commission drew an adverse inference against NTN since NTN

failed to address the like product treatment of wheel hub units at

the hearing or posthearing brief by stating that “wheel hub units

were mentioned several times by parties in favor of continuation

and in favor of revocation . . . [and] [g]iven that a party had

raised the topic, respondent NTN could have responded to the

‘information produced at the hearing and arguments thereon’ in its

posthearing brief had it wished to do so.” Def.’s Mem. at 40; see

also id. n.155 (citing Def.’s Mem., App. Vol. 1, Doc. No. 710 at

46, 156, 179, 312, 366 and 392). Moreover, the Commission

maintains that NTN fails to point to any evidence that was not

available to the Commission in the Original Determination.

See Def.’s Mem. at 40.

Timken generally agrees with the Commission and maintains that

“NTN’s prehearing submission . . . did not identify any post-

investigation changes which might have formed a basis for the

5
NTN replies that “[t]his statement . . . fails to provide
any legal basis for the ITC’s actions . . . [and] the requirement
that the ITC make a decision supported by substantial evidence on
the record, as required by 19 U.S.C. § 1516a(b)(1)(B) is not
fulfilled by the post hoc reliance on a single statement by a
single domestic party.” Pl. NTN’s Reply Br. Def. and Def.-
Intervenor’s Resp. Brs. of May 2, 2001 (“NTN’s Reply”) at 25.
Consol. Court No. 00-07-00373 Page 25

Commission to revisit its original determination on the issue.”

[Timken’s] Br. Resp. Pls.’ R. 56.2 Mot. J. Agency R. (“Timken’s

Resp.”) at 70; see also id. at n.25 (citation omitted) (“NTN’s

prehearing brief discussion was limited to a review of the six

factor test also used by the Commission in the original

[determination], in support of a determination that wheel hub units

were not a separate like product”). Timken further maintains that

NTN incorrectly cited to 19 C.F.R. § 201.13(i)(1) for NTN’s

proposition that since NTN was unable to raise the wheel hub units

issue at the hearing, it was also unable to raise the issue in its

post-hearing brief.6 See Timken’s Resp. at 71-72. Moreover,

Timken argues that NTN’s “assertion that the Commission’s decision

might be based on adverse inferences against NTN due to [NTN’s]

failure to raise the [wheel hub unit] like product issue at the

hearing or in [NTN’s] post-hearing brief is baseless” because “the

6
Timken argues that 19 C.F.R. § 207.67 (2000) applies in this
case because “[t]he provision NTN cited [19 C.F.R. § 201.13(i)(1)]
was a general Commission regulation . . . [and] [i]n case of
inconsistency between a rule of general application and a rule of
special application [i.e., 19 C.F.R. § 207.67], the latter is
controlling.” Timken’s Resp. at 72 n.26 (quoting 19 C.F.R. § 201.1
(2000)). Applying 19 C.F.R. § 207.67, Timken states that “if NTN
had any information warranting a departure from the Commission’s
original determination, and the information could not have been
presented in [NTN’s] prehearing brief or before, it could still
have been presented in the post-hearing brief.” Id. at 72.

NTN responds that “[t]o argue that NTN could have raised the
wheel hub unit issue in its post-hearing brief because the
information was brought forth after the hearing is circular
reasoning and renders [19 C.F.R. § 207.67] meaningless.” NTN’s
Reply at 26-27.
Consol. Court No. 00-07-00373 Page 26

Commission declined to revisit whether [wheel hub units]

constituted a separate like product [since] it had already done so

in [the] original [determination] and no evidence suggested that

re-examination of the issue was warranted.”7 Id. at 73.

2. Analysis: Wheel Hub Units

As a preliminary matter, the Court finds that the Commission’s

explanation (that the Commission did not conduct a re-evaluation of

the like product issue with respect to wheel hub units because

there was an absence of new information warranting

reconsideration) and the Commission’s reference to the Rules of

Practice and Procedure, 63 Fed. Reg. at 30,602, do not amount to

post hoc rationalizations. See Hoogovens Staal BV v. United

States, 24 CIT 44, 60, 86 F. Supp. 2d 1317, 1331 (2000) (holding

that “a reviewing court must evaluate the validity of an agency’s

decision on the basis of the reasoning presented in the decision

7
In its reply brief, NTN argues that the Commission’s and
Timken’s arguments that “the ITC sufficiently stated its rationale
for [not treating wheel hub units as separate like products] when
the ITC baldly stated that it had reviewed the like product
treatment of wheel hub units in [the Original Determination]” and
the Commission’s and Timken’s references to the Rules of Practice
and Procedure amount to post hoc rationalizations because
“[n]either the [Commission] nor [Timken] is able to point to any
language in the [Final Determination] in which the ITC makes the
leap from acknowledging that a similar issue was raised in 1989
[that is, the Original Determination] to deciding the issue
summarily on the basis of its Rules of Practice and Procedure.”
NTN’s Reply at 24; see also id. at 25.
Consol. Court No. 00-07-00373 Page 27

itself. An agency determination ‘cannot be upheld merely because

findings might have been made and considerations disclosed which

would justify its order . . .’”) (quoting SEC v. Chenery Corp., 318

U.S. 80, 94 (1943)); see also Burlington Truck, 371 U.S. at 168-69

(“The courts may not accept . . . counsel’s post hoc

rationalizations for agency action; . . . an agency’s discretionary

order [must] be upheld, if at all, on the same basis articulated in

the order by the agency itself”).8

Next, the Court disagrees with NTN that the Commission failed

to provide a discernible reasoning for its determination not to

treat wheel hub units as separate like products from ball bearings

and failed to address the record evidence presented in this review.

Pursuant to 19 U.S.C. § 1675a(a)(1)(A), “[t]he Commission shall

take into account . . . its prior injury determinations . . . .”

“The Commission has interpreted [19 U.S.C.] § 1675a(a)(1)(A) to

include its prior like product determinations.” Chefline, 25 CIT

at ___, 170 F. Supp. 2d at 1326 (citations omitted); see also Rules

of Practice and Procedure, 63 Fed. Reg. at 30,602 (“the Commission

may revisit its like product determination when there have been

significant changes in the products at issue since the original

8
The Court, however, agrees with NTN that the Commission’s
reference in its brief to “an unambiguous statement from the only
domestic producer of wheel hub units that the product was properly
classified as a ball bearing[,]” Def.’s Mem. at 39 (citing Def.’s
Mem., App. Vol. 1, Doc. No. 12 at 8 (confidential version)) amounts
to a post hoc rationalization which the Court will not rely on.
Consol. Court No. 00-07-00373 Page 28

investigation”)(emphasis supplied). Moreover, “a domestic like

product finding in one investigation is not dispositive of another

like product investigation.” Acciai, 24 CIT at 1070, 118 F. Supp.

2d at 1304 (citing Nippon, 19 CIT at 454-55). However, the Court

in Acciai, 24 CIT at 1071, 118 F. Supp. 2d at 1304-05 further

stated:

Where . . . the ITC has addressed similar or identical
facts, no statute or case authority prohibits it from
drawing upon its previous work in addressing the issue at
hand. . . . [T]o find otherwise would require the ITC to
ignore its institutional experience and make each like
product determination in a vacuum–-an impractical
conclusion which cannot be reasonably endorsed.

In the case at bar, the Commission stated in its Final

Determination:

NTN . . . advocated in response to the notice of
institution and in their prehearing brief that the
Commission treat wheel hub units as a separate like
product but did not pursue this argument at the hearing
or afterwards. [Citing NTN’s Response to the Notice of
Institution at 22-24 and NTN’s Prehearing Brief at 10-
12]. The Commission in its 1989 determination [Original
Determination] on antifriction bearings other than TRBs
considered and rejected arguments that wheel hub units
should be carved out as a separate like product from the
general category of [ball bearings].

Final Determination, USITC Pub. 3309, Vol. 1 at 8. Although the

Court agrees with NTN that the Final Determination, USITC Pub.

3309, Vol. 1 at 8, does not contain language “in which the ITC

makes the leap from acknowledging that a similar issue was raised

in [the Original Determination] to deciding the issue summarily on
Consol. Court No. 00-07-00373 Page 29
the basis of its Rules of Practice and Procedure[,]” NTN’s Reply

at 24, the Court finds that the Commission did provide a

discernible reasoning for its determination not to treat wheel hub

units as separate like products from ball bearings. See USEC Inc.

v. United States, 27 CIT ___, ___, 259 F. Supp. 2d 1310, 1317

(2003) (quoting Bowman Transp., 419 U.S. at 286 (“the Court may

‘uphold a decision of less than ideal clarity if the agency's path

may reasonably be discerned’”)). In particular, since NTN failed

to provide record evidence warranting a basis for the Commission to

revisit its Original Determination, the Commission in its Final

Determination, resorted to its Original Determination and decided

not to treat wheel hub units as separate like products from ball

bearings. Moreover, the Court does not agree with NTN that the

Commission failed to address the record evidence presented in this

review, particularly since the evidence presented by NTN does not

point to a change in the Original Determination. See USEC Inc. v.

United States, 2002 U.S. App. LEXIS 7845, **14 (Fed. Cir. 2002)

(citing Granges Metallverken, 13 CIT at 478-79, 716 F. Supp. at 24

(“The ITC is not required to explicitly address every piece of

evidence presented by the parties, and absent a showing to the

contrary, the ITC is presumed to have considered all of the

evidence on the record”)).

Accordingly, the Court sustains the Commission’s decision not

to treat wheel hub units as separate like products from ball
Consol. Court No. 00-07-00373 Page 30

bearings.9

3. Contentions of the Parties: ADP Bearings

A. NSK-RHP’s Contentions

NSK-RHP contends that the Commission’s determination that ADP

ball bearings do not constitute a separate like product is not

supported by substantial evidence and is contrary to law. See Mem.

P. & A. Supp. NSK-RHP’s Mot. J. Agency R. (“NSK-RHP’s Mot.”) at 4-

15, 29-43; Pls.’ Reply Mem. Supp. Mot. J. Agency R. (“NSK-RHP’s

Reply”) at 2-19. In particular, NSK-RHP refers to the six factors

(physical characteristics and uses, interchangeability, channels of

distribution, common manufacturing facilities and personnel,

customer and producer perceptions, and price) used by the

Commission in defining the “like product” and challenges the

Commission’s determination regarding each of the six factors.

See id.

First, with respect to the physical characteristics and uses

factor, NSK-RHP contests the Commission’s finding that “the record

9
The Court does not reach NTN’s argument that the Commission
drew an unjustified adverse inference as a result of NTN’s failure
to address the like product treatment of wheel hub units at the
hearing or in NTN’s posthearing brief because as the Court
indicates in its analysis above, the Commission in its Final
Determination resorted to its Original Determination since NTN
failed to provide record evidence warranting a re-evaluation of the
Original Determination.
Consol. Court No. 00-07-00373 Page 31

shows that other highly specialized bearings use the same special

materials as ADP bearings[,]” NSK-RHP’s Mot. at 29, by asserting

that: (1) the Commission’s finding is unsupported by substantial

evidence because in the Final Determination, USITC Pub. 3309, Vol.

1 at 12, the Commission cited to the Commission’s staff report

which in turn cited to Timken’s post-hearing brief that contains

mere factual assertions which are not supported by substantial

record evidence, see id.; (2) the Commission should have ignored

the statements made by Mr. Gridley, Timken’s Executive Director for

Marketing Services and Government Affairs, because he lacked

relevant expertise, see id. at 31; and (3) the testimony of Ms.

Demerling, president of a domestic firm that produces ADP ball

bearings, was rebutted by two other experts and should have

therefore been discounted by the Commission. See id. at 33 n.113

(citing Appendices Mem. P. & A. Supp. NSK-RHP’s Mot. J. Agency R.

(“NSK-RHP’s App.”) 3 and 4 (confidential version). According to

NSK-RHP, the Commission “gave too much weight to non-evidence, a

non-expert, and a discredited expert.” NSK-RHP’s Mot. at 34.

Second, regarding the interchangeability of the products

factor, NSK-RHP contends that ADP bearings and non-ADP bearings are

not interchangeable and the Commission abused its discretion when

“the Commission acknowledged that ADP bearings were not

interchangeable with non-ADP bearings, [citing Final Determination,
Consol. Court No. 00-07-00373 Page 32

USITC Pub. 3309, Vol. 2 at BB-II-4] but then dismissed this finding

by stating, ‘all ball bearings, and not ADP bearings in particular,

are only interchangeable with other bearings on a parts number

basis.’” Id. at 38 (quoting Final Determination, USITC Pub. 3309,

Vol. 1 at 12). NSK-RHP also points to its Statement of Facts

arguing that ADP bearings constitute a separate like product. See

NSK-RHP’s Mot. at 39; see also id. at 9-11 (citing inter alia NSK-

RHP’s App. 5, 9 (confidential version)).

Third, with respect to the channels of distribution, NSK-RHP

argues that the record evidence “demonstrates that ADP bearing OEM

customers, unlike general non-ADP bearing OEM customers, supervise

every aspect of ADP bearing production from cradle to grave.” NSK-

RHP’s Mot. at 39; see also id. at 13. NSK-RHP further argues that

the record evidence also “proves that the aftermarket otherwise

common to non-ADP bearings simply does not exist with respect to

ADP bearings, because OEM customers of ADP bearings tightly control

the distribution of spare parts.” Id. at 39-40; see also id. at

13-14.

Fourth, NSK-RHP argues that the Commission’s determination

regarding the use of common manufacturing facilities and personnel

factor “relies almost exclusively on assertions by counsel for

which factual evidence does not exist on the record.” Id. at 34

(citing NSK-RHP’s App. 11 at 17 (answer to Commissioner Hillman’s
Consol. Court No. 00-07-00373 Page 33

question)). NSK-RHP also argues that “[t]he Commission . . . erred

when it considered MPB’s [that is, a manufacturer of ADP bearings

that opposed a separate like product treatment of ADP bearings]

uncorroborated assertions and Ms. Demerling’s testimony as

substantial evidence to support its erroneous conclusion about ADP

bearing manufacturing facilities and processes” since “Mr. Ogden .

. . testified that MPB’s plant . . . is dedicated almost

exclusively to ADP bearings.” NSK-RHP’s Mot. at 35-36. Moreover,

NSK-RHP contends that the website information regarding SKF’s

subsidiary and NSK-RHP’s division that was submitted as evidence by

the parties opposing that ADP bearings be treated as a separate

like product does not support their contentions. See id. at 36.

NSK-RHP alleges that its Statement of Facts “proves that

substantial evidence on the record supports a finding that bearing

companies, including MPB, use separate manufacturing facilities or

flow lines to build ADP bearings.” Id. at 37; see also id. at 6-9.

Fifth, NSK-RHP asserts that “[t]he Commission abused its

discretion when it summarily dismissed the overwhelming factual

evidence that customers perceive ADP bearings as a different like

product than non-ADP bearings.” NSK-RHP’s Mot. at 40. NSK-RHP

maintains that: (1) “there is no evidence on the record that

customers perceive ADP bearings and non-ADP bearings as the same

like product[,]” id.; (2) the opponents of a separate like product
Consol. Court No. 00-07-00373 Page 34

treatment for ADP bearings “concede[] that customers perceive ADP

bearings to be separate products[,]” id. (citing Final

Determination, USITC Pub. 3309, Vol. 1 at 12); and (3) the

Commission’s view that “customer perception is of limited use

because purchasers buy all types of bearings by part number and are

familiar only with the specifications of the particular products

they purchase[,]” NSK-RHP’s Mot. at 41 (citing Final Determination,

USITC Pub. 3309, Vol. 1 at 12), is not a credible statement

pursuant to Torrington Co., 14 CIT at 654-55, 747 F. Supp. at 751,

because unlike a casual observer, the Commission should have

realized that “ADP bearing customers are critically aware of the

differences between ADP bearings and non-ADP bearings, and their

functional capabilities” and “to substitute a non-ADP bearing for

an ADP bearing ‘would be tantamount to first degree murder.’” NSK-

RHP’s Mot. at 41 (quoting NSK-RHP’s App. 5 at 331); see also NSK-

RHP’s Mot. at 11-13.

Finally, NSK-RHP argues that “[t]he factual record

demonstrates that ADP bearings generally sell on average at prices

much higher than the prices for an average non-ADP bearing.”

Id. at 42; see also id. at 14-15.
Consol. Court No. 00-07-00373 Page 35

B. NTN’s Contentions

NTN argues that the Commission’s statement in the Final

Determination, that “the parties seeking to have ADP ball bearings

treated as a separate like product from ball bearings set forth a

clear dividing line between ADP ball bearings and ball bearings

based on, ‘the use of special steels in fabricating ADP

bearings[,]’” misstates the arguments raised by NTN. NTN’s Mot. at

77 (quoting Final Determination, USITC Pub. 3309, Vol. 1 at 9).

NTN maintains that because of this misstatement, the Commission

failed to consider that “several factors, when taken together,

created a clear dividing line between ADP ball bearings and ball

bearings.”10 NTN’s Mot. at 77.

Next, NTN refers to the six factors used by the Commission in

defining the “like product” (that is, physical characteristics and

uses, interchangeability, channels of distribution, customer and

10
The Commission responds:

The Commission specifically acknowledged other
specialized characteristics of ADP bearings as defined by
NTN and others, such as custom-designed housings, extreme
operating conditions, custom design, limited
interchangeability, and limited end uses. [Citing Final
Determination, USITC Pub. 3309, Vol. 1 at 9-13]. The
Commission fully understood the proposed product
definition and evaluated the product definition advanced
by NTN and others.

Def.’s Mem. at 19 n.64.
Consol. Court No. 00-07-00373 Page 36

producer perceptions, common manufacturing facilities and

personnel, and price) and challenges the Commission’s determination

regarding each of the six factors. See NTN’s Mot. at 79-90; see

also NTN’s Reply at 27-34.

First, with respect to the physical characteristics and uses

factor, NTN argues that ADP bearings have different physical

characteristics and end uses from ball bearings and that the

Commission failed to consider certain record evidence relating to

this factor. See NTN’s Mot. at 79-81. In particular, NTN

maintains that contrary to the Commission’s findings that non-ADP

and ADP bearings have some differences in physical characteristics

and the special materials used to produce ADP bearings are also

used to produce non-ADP specialized bearings, “there is no other

general grouping of ball bearings [other than ADP bearings] in

which all of the bearings are made from specialty steel.” Id. at

80 (citing NTN’s App. 9 at 5). NTN further maintains that ADP

bearings are designed solely for certain specifically designed uses

and “there is no evidence on the record indicating that ADP ball

bearings have any alternate commercial use.” NTN’s Mot. at 80

(citing NTN’s Apps. 12 and 13 (confidential versions)).

Second, with respect to interchangeability, NTN argues that:

(1) the Commission’s “finding that all bearings are interchangeable

on a part number basis is irrelevant to the question of whether ADP
Consol. Court No. 00-07-00373 Page 37

ball bearings and ball bearings are interchangeable” because the

question asked by the ITC in a previous ball bearing investigation

regarding interchangeability addressed the actual physical

characteristics of ball bearings, NTN’s Mot. at 81-82 (citing Ball

Bearings, Mounted or Unmounted, and Parts Thereof, From Argentina,

Austria, Brazil, Canada, Hong Kong, Hungary, Mexico, the People's

Republic of China, Poland, the Republic of Korea, Spain, Taiwan,

Turkey and Yugoslavia (Preliminary), Inv. Nos. 701-TA-307, 731-TA-

498-511 (“1991 Determination”), USITC Pub. 2374 at 20 (April

1991)); (2) the Commission’s interchangeability finding essentially

ignores the interchangeability prong, NTN’s Mot. at 82; and (3)

“evidence on the record, which is not contested by any party,

indicates that ADP bearings are not even interchangeable between

different positions in the same model of aerospace engines[,]” Id.

at 83 (citing NTN’s App. 11 (confidential version)); see also NTN’s

Apps. 13 and 14 (confidential versions).

Third, regarding channels of distribution, NTN contends that

contrary to the Commission’s finding, “the channel of distribution

for ADP ball bearings is not OEM, but rather, very limited and

industry-specific OEM.” NTN’s Mot. at 84 (citing NTN’s App. 11

(confidential version)). Specifically, NTN alleges “there is not

so much a ‘channel of distribution’ to aerospace OEMs, but rather,

a channel of production contracting by aerospace OEMs.” NTN’s Mot.
Consol. Court No. 00-07-00373 Page 38

at 84.

Fourth, with respect to the production facilities and

personnel factor, NTN argues that this Court “should remand [the

Commission’s determination] to the ITC to obtain further

information in order to determine the extent to which ADP ball

bearings and ball bearings are actually produced (rather than

merely tested) at single facilities.” Id. at 85.

Fifth, regarding the customer and producer perceptions, NTN

contends that the Commission’s finding that “‘[c]ustomer perception

is of limited use in distinguishing ADP bearings as a separate

product category . . .’” is illogical because “the record gives

every indication that ADP ball bearing purchasers have very strong,

well-documented perceptions regarding ADP versus non-ADP ball

bearings.” NTN’s Mot. at 86-87 (quoting Final Determination, USITC

Pub. 3309, Vol. 1 at 12); see also NTN’s Mot. at 87 (citing NTN’s

App. 13 at 14, 16 (confidential version)). Additionally, NTN

argues that “manufacturers of ADP ball bearings also have

insightful perceptions concerning ADP ball bearings versus non-ADP

ball bearings” but the Commission’s “determination did not address

the perceptions of the manufacturers at all.” NTN’s Mot. at 88.

Finally, with respect to the price factor, NTN asserts that

“[w]hile there are undoubtedly specific bearing models that sell
Consol. Court No. 00-07-00373 Page 39

for prices as high or higher than ADP ball bearings, the

[Commission] has misinterpreted the record evidence in using these

specific bearing models as a comparison against ADP ball bearings

in general.” Id. at 89. In particular, “ADP ball bearings are all

at the upper end of the price range for bearings, while specific

non-ADP models may also be in this price range.” Id.

C. Commission’s Contentions

The Commission responds that “the Commission’s determination

that ADP ball bearings did not constitute a separate domestic like

product was supported by substantial evidence and in accordance

with law.” Def.’s Mem. at 14; see also id. at 14-36.

First, with respect to the physical characteristics and end

uses factor, the Commission maintains that “[n]o party disputed

that ADP bearings are physically similar to non-ADP bearings, with

both including races, cages, and ball rollers.” Id. at 18 (citing

Def.’s Mem., App. Vol. 1, Doc. No. 167 at BB-I-29 (confidential

version); Def.’s Mem., App. Vol. 1, Doc. No. 710 at 139). The

Commission further maintains that the parties in support of a

separate like product treatment for ADP bearings do not argue that

ADP ball bearings and other ball bearings perform different

functions. See Def.’s Mem. at 18. The Commission then responds to

the parties’ contentions and argues that: (1) although NTN “may or
Consol. Court No. 00-07-00373 Page 40

may not be correct in its contention that there are no other

‘general groupings’ that all require a specific type of specialty

steel[,]” the Commission does not need to find a general grouping

that uses the same materials and “[t]he record supported the

Commission’s conclusion that the use of specialty steels was not

unique to the production of ADP bearings[,]” Def.’s Mem. at 19-20;

(2) NSK’s arguments regarding the testimony of Ms. Demerling,

statements made by Mr. Gridley and statements supplied in a post-

hearing submission are without merit because “[t]he Commission, as

trier of fact, is the proper party to determine the credibility of

witnesses and to interpret reasonably the evidence collected in the

course of its investigations.”11 Id. at 21 (citing Negev

Phosphates, Ltd. v. U.S. Dep’t of Commerce, 12 CIT 1074, 1091-92,

699 F. Supp. 938, 953 (1988). Additionally, the Commission cites

to Kern-Liebers USA, Inc. v. United States, 19 CIT 87, 91-92

(1995), and points out that the Court has sustained “a Commission

finding that a type of cold-rolled steel which required additional

special processing, was produced only for one demanding end use,

and was produced only to federally-mandated safety specifications,

did not constitute a domestic like product separate from other

11
In its reply brief, NSK-RHP argues that page BB-I-29 of the
staff report is not based on record evidence. See NSK-RHP’s Reply
at 5. NSK-RHP maintains that “neither [the Commission] nor
[Timken] ha[s] directed the Court to expert witness testimony,
questioannaire responses, or other documentary evidence as support
for the Staff Report’s conclusion.” Id.
Consol. Court No. 00-07-00373 Page 41

types of cold-rolled steel.” Def.’s Mem. at 23.

Second, responding to the arguments raised by NTN and NSK-RHP

with respect to the interchangeability factor, the Commission

maintains that: (1) “[i]nterhchangeability is . . . limited between

ADP and non-ADP bearings, as non-ADP bearings are not designed for

ADP environments and ADP bearings are not cost-efficient

substitutes for non-ADP bearings[,] [b]ut the interchangeability

between ADP bearings and non-ADP bearings is no more limited than

between other ball bearings within the domestic like product that

are designed for different uses[,]” id. at 25 (citing Def.’s Mem.,

App. Vol. 1, Doc. No. 167 at BB-I-33 (confidential version); (2)

“[t]he record . . . indicated that interchangeability among similar

bearings was high, but interchangeability between ball bearings

manufactured for specific purposes or to specific tolerances was

limited[,]” Def.’s Mem. at 26; and (3) “[t]he record . . .

indicated that a similarly limited degree of interchangeability

existed both between and within ADP and non-ADP ball bearing

categories.” Id. at 26-27.

Third, responding to the arguments raised by NTN and NSK-RHP

with respect to the channels of distribution factor, the Commission

argues that: (1) “[t]he record . . . reveals evidence that

increased customization is the norm for all ball bearing production

. . . [and] OEM purchasers from every industry are involved in
Consol. Court No. 00-07-00373 Page 42

design and manufacture[,]” id. at 28 (citing Def.’s Mem., App. Vol.

1, Doc. No. 140 (Timken’s Post-Hearing Br. Resp. Commissioner

Hillman) at 16 (confidential version); and (2) “[p]urchasers

themselves believe that they are receiving customized products

responsive to their specific end uses.” Def.’s Mem. at 28-29

(citing Def.’s Mem., App. Vol. 1, Doc. No. 167 at BB-I-33

(confidential version).

Fourth, responding to the arguments raised by NTN and NSK-RHP

with respect to the production facilities and personnel factor, the

Commission contends that: (1) “[e]vidence on the record indicated

that [a certain number of] domestic producers produced non-ADP

bearings on the same equipment as ADP bearings[,]” Def.’s Mem. at

29 (citing Def.’s Mem., App. Vol. 1, Doc. No. 140 at 17

(confidential version); (2) both NSK-RHP and NTN admit that the

record contains evidence that a certain number of domestic

producers manufactured both ADP and non-ADP bearings at the same

location,12 see Def.’s Mem. at 29-30; (3) NSK-RHP and NTN “misstate

the nature of their expert’s testimony and interpret this portion

of the like product test too narrowly[,]” id. at 30; and (4)

“[t]here is no evidence in the record that non-ADP bearings cannot

12
NSK-RHP argues that the Commission mischaracterizes NSK-
RHP’s argument because “the record contains no evidence that [a
certain company] manufactures non-ADP bearings on ADP equipment and
two sentences of testimony that MPB [another company] does.” NSK-
RHP’s Reply at 9.
Consol. Court No. 00-07-00373 Page 43

be produced on ADP equipment, and there is evidence, some of it

from plaintiff’s own expert, that such production actually occurs.”

Id. (citation omitted).

Fifth, responding to the arguments raised by NTN and NSK-RHP

with respect to the customer and producer perceptions, the

Commission maintains that: (1) contrary to NTN’s assertion that the

ADP purchasers’ lack of knowledge regarding other bearings

indicates that the ADP market is a separate market from the non-ADP

market, “[i]f the relative isolation of purchasers extended only to

ADP buyers, plaintiff’s argument might be valid. But most non-ADP

ball bearing producers and purchasers showed little interest . . .

with products and markets outside their own niche[,]” Def.’s Mem.

at 31; (2) contrary to NSK-RHP’s argument, there were two domestic

producers of ADP bearings who “opposed a separate like product

definition for ADP bearings[,]”13 id. at 32; (3) contrary to NSK-

RHP’s argument that the Commission’s view regarding customer

perception is not in accord with Torrington Co., 14 CIT at 654-55,

747 F. Supp. at 751, “in its evaluation of the evidence regarding

customer perceptions, in these instant reviews, the Commission

recognized that purchasers did have detailed perceptions regarding

the bearings that suited their particular purposes . . . [but were

13
NSK-RHP argues that “the Commission below voiced no opinion
about producers’ perception, so any argument made by the
[Commission] on this point constitutes unacceptable post-hoc
rationalization by counsel.” NSK-RHP’s Reply at 15.
Consol. Court No. 00-07-00373 Page 44

rarely] knowledgeable about other sections of the market[,]” id. at

33 (citations omitted); and (4) contrary to plaintiffs’ argument

that the Commission did not adequately weigh customer and producer

perceptions, “[t]he Commission reasonably determined that the

evidence regarding product perception was limited because of the

breadth of the product and buyers’ limited knowledge, and weighed

the evidence accordingly.” Def.’s Mem. at 34.

Finally, responding to NSK-RHP’s and NTN’s arguments regarding

the price factor, the Commission asserts:

The data . . . indicates that overall ADP bearing
prices are somewhat higher than prices for non-ADP
bearings. But the data on the record for both ADP and
non-ADP bearings shows tremendous variation in price,
depending in part on the size, order volume, and material
used in fabricating the bearing. The Commission thus
reasonably determined that this evidence of variation in
price, across both ADP and non-ADP bearings, did not
warrant treating ADP bearings as a separate like product.

Id. at 36. Moreover, the Commission maintains:

The domestic like product of ball bearings covered
a wide variety of products. In reaching its
determination regarding like product, the Commission
considered its original like product determination and
its practice in other cases involving similar ‘continuum’
products. While acknowledging record evidence favoring
a separate like product for ADP bearings, the Commission
weighed all of the available like product evidence and
concluded that a bright diving line did not exist.

Id.
Consol. Court No. 00-07-00373 Page 45

D. Timken’s Contentions

Timken generally agrees with the Commission and maintains that

the Commission’s determination that ADP bearings did not constitute

a separate like product is supported by substantial evidence. See

Timken’s Resp. at 74-95. Timken additionally argues inter alia

that: (1) “NSK-RHP’s attacks on witness credibility and citations

used in [Timken’s] post-hearing brief to the Commission are

inappropriate[,]” id. at 80, see also id. at 80-85; (2) “contrary

to NTN’s assertion, the Commission reasonably determined there was

no clear dividing line between ADP and non-ADP bearings[,]” id. at

85; see also id. at 85-87; and (3) contrary to NTN’s argument that

the Commission departed from a previous ball bearing investigation

when addressing the interchangeability factor, the Commission in

the 1991 Determination, USITC Pub. 2374, “as in the present sunset

determination . . . found that the interchangeability prong of its

like product test unhelpful in making its like product

determination.”14 Id. at 90.

14
Timken argues that in the 1991 Determination, USITC Pub.
2374 at 6-14, the Commission did not mention the interchangeability
factor in its like product determination. See Timken’s Resp. at
90. The Court, after consulting the 1991 Determination, finds that
the Commission in that determination did not explicitly discuss the
interchangeability factor in its like product determination and,
therefore, the Court finds that contrary to NTN’s argument, the
Commission in the case at bar did not depart from its previous
determination in the 1991 Determination.
Consol. Court No. 00-07-00373 Page 46

4. Analysis: ADP Bearings

As a preliminary matter, the Court finds that NSK-RHP’s

arguments regarding the testimony of a witness, statements made by

a witness and statements supplied in a post-hearing submission are

without merit. See Floral Trade Council v. United States, 20 CIT

595, 600 (1996) (quoting Negev Phosphates, 12 CIT at 1092, 699 F.

Supp. at 953 (“‘assessments of the credibility of witnesses are

within the province of the trier of fact. This Court lacks

authority to interfere with the Commission’s discretion as trier of

fact to interpret reasonably evidence collected in the

investigation’”).

Next, the Court finds that the Commission’s determination that

ADP bearings do not constitute a separate like product is supported

by substantial evidence and is in accordance with law. The

Commission’s like product determination is a factual determination

that is conducted on a case-by-case basis. See Chefline Corp., 25

CIT at ___, 170 F. Supp. 2d at 1327 (citing Torrington Co., 14 CIT

at 652 n.3, 747 F. Supp. at 749 n.3). As stated above, the

Commission considers the following six factors in defining the like

product: (1) physical characteristics and uses; (2)

interchangeability of the products; (3) channels of distribution;

(4) customer and producer perceptions of the products; (5) the use

of common manufacturing facilities and personnel; and (6) price.
Consol. Court No. 00-07-00373 Page 47

See Timken, 20 CIT at 80, 913 F. Supp. at 584 (citation omitted).

The Court “review[s] the Commission’s determination for substantial

evidence, bearing in mind that ‘it is not the province of the

courts to change the priority of the relevant like product factors

or to reweigh or judge the credibility of conflicting evidence.’”

Chefline Corp., 25 CIT at ___, 170 F. Supp. 2d at 1327-28 (quoting

Chung Ling Co. v. United States, 16 CIT 636, 648, 805 F. Supp. 45,

55 (1992)). Additionally, “‘minor differences’ . . . do not merit

a separate like product determination.” Kern-Liebers, 19 CIT at 92

(citing Cambridge Lee Indus., Inc. v. United States, 13 CIT 1052,

1055, 728 F. Supp. 748, 750-51 (1989) (quoting in turn S. Rep. No.

249, 96th Cong., 1st Sess. 90-91 (1979), reprinted in 1979

U.S.C.C.A.N. 381, 476-77 (the like product determination “should

not be narrowly interpreted ‘as to permit minor differences in

physical characteristics or uses to lead to the conclusion that the

[domestic] product and [the imported] article are not ‘like’ each

other’”)).

In the case at bar, the Commission determined that:

ADP bearings [do not] comprise a separate domestic like
product. While the record indicates some differences in
physical characteristics, end uses, interchangeability,
price, and facilities between ADP bearings and other
[ball bearings] . . ., [the Commission] find[s] that the
similarities outweigh these differences. The record
shows that the special materials and special machinery
and facilities used to produce ADP bearings are also used
in the production of other highly specialized bearings
and that other types of precision and non-precision
bearings may command prices as high as those for ADP
Consol. Court No. 00-07-00373 Page 48

bearings. With respect to interchangeability, all
bearings, and not ADP bearings in particular, are only
interchangeable with other bearings on a parts number
basis. Customer perception is of limited use in
distinguishing ADP bearings as a separate product
category, given that purchasers typically buy all types
of bearings by part number and are familiar only with the
specifications of the particular products they purchase.
In addition, while ADP bearings are sold only to OEMs, so
is the majority of [United States] producers’ sales of
non-ADP ball . . . bearings, with [United States]
producers shipping 79.1 percent of their [United States]
[ball bearing] shipments . . . to OEMs. In cases such as
the present one, where the domestically manufactured
merchandise is made up of a continuum of similar
products, [the Commission] normally do[es] not consider
each item of merchandise to be a separate domestic like
product that is only “like” its counterpart in the scope,
but consider[s] the continuum itself to constitute the
domestic like product. Given the “continuum” nature of
bearings, then, [the Commission] conclude[s] that there
is no clear dividing line between ADP bearings and all
other types of bearings.

Final Determination, USITC Pub. 3309, Vol. 1 at 12-13 (citations

omitted). In turn, the evidence presented by NSK-RHP and NTN does

not prove that the Commission’s finding is not supported by

substantial evidence, but rather, calls for the Court to reach a

different conclusion. This, the Court is not willing to do. See

Consolo, 383 U.S. at 620 (“the possibility of drawing two

inconsistent conclusions from the [same] evidence does not”

preclude the Court from holding that the agency finding is

supported by substantial evidence); Acciai Speciali Terni, 24 CIT

at 1081 n.21, 118 F. Supp. 2d at 1313 n.21 (quoting Goss Graphics

Sys., Inc. v. United States, 33 F. Supp. 2d 1082, 1099 (1998),

aff’d, 216 F.3d 1357 (Fed. Cir. 2000) (“‘[t]he Commission has
Consol. Court No. 00-07-00373 Page 49

discretion to assess the probative nature of the evidence obtained

in its investigation and to determine whether to discount the

evidence or rely on it’”); Maine Potato Council v. United States,

9 CIT 293, 300, 613 F. Supp. 1237, 1244 (1985) (“[i]t is within the

[ITC’s] discretion to make reasonable interpretations of the

evidence and to determine the overall significance of any

particular factor or piece of evidence”); see also American Spring

Wire Corp. v. United States, 8 CIT 20, 22, 590 F. Supp. 1273, 1276

(“[t]he court may not substitute its judgment for that of the

[agency] when the choice is ‘between two fairly conflicting views,

even though the court would justifiably have made a different

choice had the matter been before it de novo’”) (quoting Penntech

Papers Inc. v. NLRB, 706 F.2d 18, 22-23 (1st Cir. 1983), cert.

denied, 464 U.S. 892 (1983) (quoting, in turn, Universal Camera

Corp. v. NLRB, 340 U.S. 474, 488 (1951)).

Based on the foregoing, the Court sustains the Commission’s

determination that ADP bearings do not constitute a separate like

product from ball bearings.

II. Conditions of Competition in the Domestic Ball Bearing
Industry

A. Background

In the Final Determination, USITC Pub. 3309, Vol. 1 at 36-38,

the Commission: (1) “recognized the increase in both demand and
Consol. Court No. 00-07-00373 Page 50

domestic production but noted that consumption had been flat or

declining in the most recent periods[,]” Def.’s Mem. at 76

(citation omitted); (2) “noted the importance of the OEM sector,

given the large production volumes associated with OEM sales, and

the use of certification processes by most OEMs[,]” id.; (3) “found

that ball bearings were ‘more like a commodity product’ than other

antifriction bearings[,]” id.; (4) “recognized that most purchasers

look for quality and dependability as well as price in their ball

bearing purchases[,]” id.; (5) “found a fair degree of

substitutability that, combined with the commodity-like nature of

the product, made ball bearings a more price-competitive product

than other antifriction bearings[,]” id.; (6) “noted the differing

dynamics of the ball bearing industry as compared to other

antifriction bearing industries[,]” id.; (7) “noted that there were

at least 35 domestic producers, with no single dominant

producer[,]” id.; (8) “described the domestic industry as

fragmented[,]” id.; and (9) “found that the domestic industry

included production facilities owned by large multinational

producers . . . that . . . typically produced for the local market

in their domestic facilities but did engage in a degree of global

rationalization among production sources.” Id. at 76-77; see also

Final Determination, USITC Pub. 3309, Vol. 1 at 36-38.
Consol. Court No. 00-07-00373 Page 51

B. Contentions of the Parties

NTN contends that the Commission’s findings that: (1) ball

bearings are more commodity-like, have a high degree of

substitutability and are more price-competitive than other

antifriction bearings; (2) the ball bearings industry is

fragmented; and (3) demand for ball bearings is weak are

unsupported by substantial evidence. See NTN’s Mot. at 22-31, 37-

49; see also NTN’s Reply at 6-14.

With regard to the Commission’s finding that ball bearings are

more commodity-like than other antifriction bearings, NTN argues

that: (1) the Commission did not define what it meant by a

commodity, see NTN’s Mot. at 23; (2) although the Commission refers

to ball bearings as commodity-like and not as a commodity, “[i]t is

clear that the ITC’s determination must have been based on an

assumption that ball bearings were, in fact, commodities[,]”15 id.;

(3) “[t]he statement that any particular bearing type is the ‘most’

commodity-like has very little meaning without also addressing the

15
NTN maintains that since the Commission’s determination was
based on the assumption that ball bearings were commodities and the
record does not support such a finding, “the decisions based on
this faulty assumption do not satisfy the requirement that there be
a rational connection between the facts found and the final
determination made.” NTN’s Mot. at 23-24 (citing Burlington Truck,
371 U.S. at 168).
Consol. Court No. 00-07-00373 Page 52

context in which the statement is made[,]”16 id. at 24; (4) Timken’s

pre-hearing brief cited by the Commission in the Final

Determination, USITC Pub. 3309, Vol. 1 at 37 n.271, constitutes

insufficient record evidence because the statement in Timken’s pre-

hearing brief that “‘bearings of all types and configurations are

considered commodity products that compete largely on the basis of

price[,]’” NTN’s Mot. at 24 (quoting NTN’s App. 2) is a “statement

[that] has no record support other than the ITC Prehearing Staff

Report’s having stated it[,]” NTN’s Mot. at 24; (5) Timken’s pre-

hearing brief discusses all bearings together rather than

discussing ball bearings separately and, therefore, the Court

should disregard the Commission’s citations to Timken’s pre-hearing

brief for the premise that ball bearings are more commodity-like

than antifriction bearings, see id. at 25; (6) “[r]egarding the

statement by the president of SKF USA, Stan Malmstrom, it is

important to note that neither Mr. Malmstrom, nor any other witness

indicated that ball bearings were, in fact, commodity-like[,]” and

the Commission should have not given the weight that it did to this

statement, id.; and (7) unlike “commodities [which] are completely

interchangeable and purchase decisions are based strictly on

price[,]” “ball bearings are . . . not commodities [because]

16
NTN points out that “since ITC never discloses how
‘commodity-like’ it deems other antifriction bearings, the
comparative description of ball bearings as ‘more commodity-like’
is meaningless.” NTN’s Mot. at 30-31.
Consol. Court No. 00-07-00373 Page 53

[q]uality, production technology, design, applications,

availability, service, delivery, lead time, availability of a NAFTA

certification, and other factors all differ considerably among ball

bearings.” Id. at 26; see also NTN’s Mot. at 26-30 and NTN’s Apps.

5, 6.

Next, with respect to the Commission’s finding that the ball

bearings industry is fragmented, NTN contends that “the statement

the ITC cited to in order to support the statement that, ‘there are

many suppliers able to meet purchasers’ non-price concerns . . .

leaving price as the primary remaining area of competition’ is a

discussion about TRBs, not ball bearings.” NTN’s Mot. at 39-40

(quoting Final Determination, USITC Pub. 3309, Vol. 1 at 40

(citation omitted)). NTN further contends that the Commission

“ignores past agency practice and appears to assert that

fragmentation can be determined by comparison alone.” NTN’s Reply

at 8; see also NTN’s Mot. at 40-46.17

17
NTN asserts that the Commission has considered the
following factors when determining whether a particular industry is
fragmented:

1) A large number of competitors in the industry;
2) Varying size of competitors in the industry;
3) Minimal barriers to entry in the industry; and
4) No competitor or competitors dominate the market.

NTN’s Mot. at 40 (citing Frozen Concentrated Orange Juice From
Brazil, Inv. No. 731-TA-326 (Review), USITC Pub. No. 3195 at 3 and
Appendix B (May 1999); Industry & Trade Summary: Apparel, USITC
Pub. 3169 at 3-4 (March 1999); Industry & Trade Summary: Adhesives,
(continued...)
Consol. Court No. 00-07-00373 Page 54

Finally, NTN asserts that the Commission’s determination that

the demand for ball bearings was weak in the United States was not

supported by substantial evidence on the record and is otherwise

not in accordance with law. See id. at 46. In particular, NTN

argues that the Commission erroneously analyzed the demand data

because “[t]hroughout its determination, the ITC seems to neglect

the tremendous growth in [United States] consumption between 1987

and 1998, while focusing in on the recent interim data which showed

a slight decline.” Id. at 47. NTN maintains that “[b]y doing so,

[the Commission] created a highly distorted and negative picture of

[United States] ball bearing demand which is not in accord with the

record evidence, taken as a whole, in this case.” Id. NTN further

maintains that “[d]uring what the ITC characterizes as a period of

‘weak demand,’ the market share of domestic shipments actually

increased . . . [while] the market share of subject imports

decreased indicating that the subject imports have no effect on

domestic production regardless of the state of [United States]

demand.” Id. at 48 (citing Final Determination, USITC Pub. 3309,

17
(...continued)
Glues, and Gelatin, USITC Pub. 3093 at 6 (March 1998); Industry
Report: Hose, Belting, and Plastic Pipe, USITC Pub. No. 2866 (March
1995); Industry Report: Leasing Services, USITC Pub. No. 2864
(March 1995); and Certain Red Raspberries From Canada, USITC Inv.
No. 731-TA-196 (Preliminary), Pub. No. 1565 (August 1984). NTN
further points out that “[t]he four criteria listed above have been
discussed by the ITC when determining that an industry is
fragmented . . . [but] [n]ot all four criteria are discussed in
each case[.]” NTN’s Mot. at 42.
Consol. Court No. 00-07-00373 Page 55

Vol. 2 at BB-I-2). Moreover, NTN argues that “record evidence

indicates that demand is expected to remain high.” NTN’s Mot. at 48

(citing NTN’s Mot. App. 7 at I-25 (confidential version)).

The Commission responds that its findings regarding the

conditions of competition in the domestic ball bearing industry are

supported by substantial evidence and are in accordance with law.

See Def.’s Mem. at 76-81. First, the Commission argues that its

determination that ball bearings are more commodity-like than other

antifriction bearings was supported by substantial evidence.

See id. at 77-78. In particular, the Commission maintains that:

(1) the Commission did not find that ball bearings were

commodities, but rather that they “were closer to being commodities

than were other antifriction bearings[,]” id. at 77; (2) “[o]f the

122 total responses regarding interchangeability, 113 reported

interchangeability and only nine observed that subject imports were

not interchangeable with the domestic like product[,]” id. at 78

(citing Final Determination, USITC Pub. 3309, Vol. 2 at Tbl. BB-II-

3); (3) “[t]here was evidence on the record that ball bearings that

a customer might believe to be customized were in fact commodity-

like items with slight modifications[,]” Def.’s Mem. at 78 (citing

Def.’s Mem., App. Vol. 1, Doc. No. 167 at BB-I-32 (confidential

version)); (4) “parties favoring continuation [of the ball bearing

antidumping duty orders] pointed to evidence that purchasers are

unwilling to pay higher prices for bearings that could be deemed
Consol. Court No. 00-07-00373 Page 56

customized[,]” Def.’s Mem. at 78 (citing Def.’s Mem. App. Vol. 1,

Doc. No. 167 at BB-I-34 (confidential version)); and (5) “[t]he

record indicated that multiple sourcing was common, and that many

purchasers typically dealt with more than one supplier.” Def.’s

Mem. at 78 (citation omitted).18

Second, the Commission asserts that its finding that the

domestic ball bearings industry is fragmented was supported by

substantial evidence. See Def.’s Mem. at 79-80. The Commission

points out that: (1) SKF agrees with the Commission that the ball

bearing industry is fragmented, see id. at 79 (citing Br. Supp.

SKF’s Rule 56.2 Mot. J. Agency R. (“SKF’s Mot.”) at 2); (2) “the

ball bearing industry consisted of at least 35 producers, with no

single dominant producer[,]” Def.’s Mem. at 79 (citation omitted);

and (3) “[g]iven that the industry has high capital requirements

and requires high capacity utilization rates to be profitable, . .

. differences in the number and size of producers are

significant.”19 Def.’s Mem. at 80.

18
The Commission responds to NTN’s argument that Mr. Dykstra
(a witness that the Commission cited to in the Final Determination,
USITC Pub. 3309, Vol. 1 at 40 n.297, for the proposition that
multiple sourcing was common) was only discussing the tapered
roller bearing market during the hearing by asserting that “Mr.
Dykstra specifically stated that the conditions he discussed as
applying to the tapered roller bearing market also applied to the
ball bearing market.” Def.’s Mem. at 78 n.273 (citing Def.’s Mem.
App. Vol. 1, Doc. No. 710 at 314).
19
The Commission states:
(continued...)
Consol. Court No. 00-07-00373 Page 57

Finally, the Commission contends that its determination that

United States demand for ball bearings was weak was supported by

substantial evidence. See id. at 80-81. Specifically, the

Commission maintains that: (1) “[t]he Commission noted the increase

in demand over the years since the orders were imposed . . . [b]ut

the Commission found demand by value to have increased only 1.4

percent between 1997 and 1998[,]” id. at 80; (2) “[t]otal domestic

demand as measured by value declined 3.2 percent between the

interim periods of January-September 1998 and January-September

1999[,]”20 id. (citing Final Determination, USITC Pub. 3309, Vol.

19
(...continued)
The single largest producer [of ball bearings] accounted
for [a certain] percent of [United States] shipments by
value in 1998. In comparison, the tapered roller bearing
domestic industry had 12 firms, with the largest
accounting for [a certain percent that was much higher
than the percent for ball bearings] of domestic shipments
by value; the cylindrical roller bearing industry had 15
firms, with the largest accounting for [a certain percent
that was higher than the ball bearing percent and lower
than the tapered roller bearing percent] of domestic
shipments by value in 1998; and the spherical plain
bearing industry had 9 producers, with the largest
accounting for [a certain percent that was higher than
the ball bearing percent but lower than the tapered
roller bearing and cylindrical roller bearing percent] of
domestic shipments by value in 1998.

Def.’s Mem. at 79-80 (citations omitted).
20
The Commission points out:

In comparison, demand for tapered roller bearings as
measured by value [during certain periods increased by
certain percentages]. Demand for cylindrical roller
bearings as measured by value increased 9.4 percent
(continued...)
Consol. Court No. 00-07-00373 Page 58

2 at Tbl. C-2); (3) contrary to NTN’s argument that the Commission

should have given greater weight to forecasts indicating increased

demand, NTN “does not establish why the Commission ought to have

given greater weight to such forecasts when they failed to even

anticipate the downturn shown in the Commission’s data for the

interim period[,]” Def.’s Mem. at 81; and (4) “[t]here was no

reason to believe that forecasts that proved inadequate in

projecting near-term demand would be any more accurate in

projecting long-term demand.” Id.

Timken generally agrees with the Commission and maintains that

“NTN’s arguments regarding the Commission’s observations that the

industry is fragmented and ball bearings are commodity-like are

without any merit[,]” Timken’s Resp. at 46, and “the Commission’s

conclusion that demand for ball bearings was weak was supported by

substantial evidence.” Id. at 59. First, with respect to the

Commission’s finding that ball bearings are more commodity-like

20
(...continued)
between 1997 and 1998 and by 2.9 percent in the interim
comparisons.

Def.’s Mem. at 80 n.281 (citing Final Determination, USITC Pub.
3309, Vol. 2 at Tbls. C-1 and C-3). NTN replies that “[w]hen
compared, [ball bearing] demand by value declined less than both
[tapered roller bearing] and [cylindrical roller bearing] demand by
value over the same period of time” that is, interim 1999. NTN’s
Reply at 13. Moreover, NTN argues that “[a] sunset review is
prospective in nature . . . [and] [t]he Commission focused on the
most recent past data in its analysis rather than focusing on the
significant evidence regarding future demand.” Id. at 14 (citation
omitted).
Consol. Court No. 00-07-00373 Page 59

than other antifriction bearings, Timken maintains that: (1) Mr.

Malmstrom’s testimony “clearly expressed Mr. Malmstrom’s opinion .

. . that ball bearings were the most commodity-like of the

antifriction bearings[,] id. at 50; (2) although Timken’s pre-

hearing brief “does not expressly provide that ball bearings are

more commodity-like than other antifriction bearings, it

nevertheless lends support to the Commission’s conclusion that ball

bearing[s] are commodity like products[,]” id. at n.18; (3)

“substantial record evidence . . . supported the Commission’s

related observations that bearings of all types, including ball

bearings, compete on price and were highly interchangeable or

substitutable regardless of origin[,]” id. at 51, see also id. at

51-55; (4) “the Commission’s choice of the term ‘commodity-like’

instead of ‘commodity’ demonstrates that it took into account

[NTN’s] contention that bearings were not commodities in the

traditional sense[,]” id. at 56; and (5) various arguments raised

by NTN are merely NTN’s interpretation of the evidence. See

Timken’s Resp. at 57-58.

Second, with respect to the Commission’s determination that

the domestic ball bearings industry is fragmented, Timken argues

that contrary to NTN’s assertion that the Commission ignored past

agency practice when the Commission failed to consider various

factors in determining whether the domestic industry was

fragmented, “as NTN admits, the Commission has not established a
Consol. Court No. 00-07-00373 Page 60

rigid test for determining when, or whether, it may characterize an

industry as fragmented or not[,] . . . [i]nstead, the Commission

looks to a variety of factors relevant to the particular industry

being examined.” Timken’s Resp. at 48 (citing Ranchers-Cattlemen

Action Legal Foundation v. United States, 23 CIT 861, 884-85, 74 F.

Supp. 2d 1353, 1374 (1999)).21

Finally, with respect to the Commission’s finding that demand

in the domestic ball bearing industry is weak, Timken contends

that: (1) “[a]s stated numerous times in party submissions and

testimony before the Commission bearing demand had peaked and begun

21
Timken also argues that the various Industry and Trade
reports cited by NTN are not cases that establish agency practice
but rather are published for informational purposes only. See
Timken’s Resp. at 48 (citing Industry & Trade Summary: Apparel,
USITC Pub. No. 3169 at iii n.1). Additionally, Timken maintains
that “[t]he reference in Orange Juice, [USITC Pub. 3195] to the
fragmented nature of the industry is not even contained in the
Commission’s determination on whether to revoke or retain the
order, but rather only in appendix B, the Commission’s decision as
to the adequacy of the domestic industry’s response.” Timken’s
Resp. at 49 n.16.

NTN responds that “[i]t is true that the Commission has not
published a statement akin to ‘this is the test for determining
whether an industry is fragmented.’ However, the Commission’s
actions have arguably created a ‘de facto’ established and uniform
practice.” NTN’s Reply at 10 (citing inter alia, International
Light Metals v. United States, 194 F.3d 1355, 1361 (Fed. Cir.
1999), and Heraeus-Amersil, Inc. v. United States, 9 CIT 412, 416,
617 F. Supp. 89, 94 (1985)).

The Court agrees with Timken that the Industry and Trade
reports cited by NTN are for information purposes only and do not
establish Commission practice.
Consol. Court No. 00-07-00373 Page 61

to flatten out and decline by the end of the review period[,]”22

Timken’s Resp. at 59 (citing inter alia App. Timken’s Br. Resp.

Pls.’ Rule 56.2 Mot. J. Agency R. (“Timken’s Resp. App.”) 7 at 212-

13); (2) “demand for bearings was dependent on demand for bearing

consuming industries such as automotive, aerospace and agricultural

equipment . . . [and] [p]roduction in these industries had either

already declined or was projected to decline in the near future[,]”

Timken’s Resp. at 59 (citations omitted); (3) “[a]ssertions that

past increases in demand undermine the Commission’s

characterization of current demand are misplaced . . . [because]

the overall growth of domestic ball bearing demand does not render

the industry immune from the present or future consequences of

declines in demand[,]” Timken’s Resp. at 60; and (4) contrary to

NTN’s argument, the Commission did consider evidence that suggested

an increase in demand. See id.

C. Analysis

As a preliminary matter, the Court finds that the Commission

does not have an established practice of determining whether the

domestic industry is fragmented. See Ranchers-Cattlemen, 23 CIT at

884-85, 74 F. Supp. 2d at 1374 (“[a]n action by the ITC becomes an

‘agency practice’ when a uniform and established procedure exists

22
NTN replies that “[t]he Commission ignored significant
evidence that showed that [the United States ball bearing] demand
was not weak.” NTN’s Reply at 14.
Consol. Court No. 00-07-00373 Page 62

that would lead a party, in the absence of notification of change,

reasonably to expect adherence to the established practice or

procedure”); see generally Ugine-Savoie Imphy v. United States, 26

CIT ___, ___, 248 F. Supp. 2d 1208, 1220 (2002) (“There is limited

precedential value in sunset reviews since each case presents

unique interactions of the economic variables the Commission

considers” (citation omitted)). The Court has examined Frozen

Concentrated Orange Juice From Brazil, USITC Pub. No. 3195 at 3 and

App. B, and Certain Red Raspberries From Canada, USITC Pub. No.

1565, cited by NTN and agrees with Timken that the Commission does

not have an established practice of determining whether the

domestic industry is fragmented. Furthermore, the Court is not

persuaded by NTN’s argument that the Commission created a “de

facto” established practice of determining whether a domestic

industry is fragmented. In particular, unlike the case cited by

NTN, Heraeus-Amersil, 9 CIT at 416, 617 F. Supp. at 94, where the

Court found that classification of a certain merchandise under two

item numbers of the TSUS of over 300 liquidations at two ports over

a ten-year period qualified as a uniform and established practice

upon which the plaintiff could rely absent a published notice of a

contemplated change in classification practice, in this case, the

Commission’s decisions in Frozen Concentrated Orange Juice From

Brazil, USITC Pub. No. 3195 at 3 and App. B, and Certain Red

Raspberries From Canada, USITC Pub. No. 1565, do not amount to the
Consol. Court No. 00-07-00373 Page 63

creation of a “de facto” established practice for determining

whether an industry is fragmented.23

Next, the Court turns to the issue of whether the Commission’s

determination regarding conditions of competition in the domestic

ball bearing industry was supported by substantial evidence and was

in accordance with law. In the Final Determination, the Commission

determined:

Measured by value, demand for [ball bearings]
approximately doubled between 1987 and 1998. In the more
recent time period, consumption has been relatively flat,
increasing by only 1.4 percent between 1997 and 1998.
Consumption of [ball bearings] declined between interim
1998 and interim 1999.

. . . .

[Ball bearings] are more like a commodity product
than are other antifriction bearings. There is a
significant degree of perceived substitutability between
domestically produced [ball bearings] and subject
imports. Purchasers cite price as an important factor in
making purchasing decisions, although they also look for
quality and delivery dependability. Given a fair degree
of substitutability and the commodity-like nature of the
product, [ball bearings] are more price-competitive than
other antifriction bearings.

Unlike the other antifriction bearing industries,

23
NTN also cites to International Light Metals, 194 F.3d at
1361, to support its argument of a “de facto” established practice
for determining whether an industry is fragmented. The Court notes
that the Court of Appeals for the Federal Circuit (“CAFC”) in
International Light Metals did not reach International Light
Metals’ arguments regarding Customs’ deviation from a long-standing
administrative practice because the CAFC “concluded that summary
judgment was improperly granted in favor of the government based
upon an erroneous view of the requirements of the statute.”
International Light Metals, 194 F.3d at 1367 n.15.
Consol. Court No. 00-07-00373 Page 64

there are many small producers in the [ball bearing]
industry, and there is no single dominant producer.
There are at least 35 domestic [ball bearings] producers.
. . .

The industry includes production facilities owned by
large multinational producers that have facilities in
several nations. These large producers typically produce
for the local market, but also engage in some degree of
global rationalization. Japanese-owned firms in
particular have increased in [United States] production
capacity. By 1998, nearly half of all [United States]-
produced [ball bearings] were produced by foreign-owned
firms. Domestically owned producers such as [Timken]
also own or are affiliated with producers in other
markets.

The years 1985-1987 were marked by a noticeable
decline in domestic [ball bearing] production capacity,
which fell from 295.6 million units in 1985 to 258.9
million by 1987. However, by 1997 capacity was
approximately doubled what it had been in 1987. Capacity
rose again in 1998 but declined in interim 1999 compared
to interim 1998. In quantity terms, domestic production
declined from 1997 to 1998 and showed a decline in
interim 1999 compared to the same time period in 1998.
The [ball bearing] industry is mature and capital-
intensive and must operate at high capacity utilization
rates to be profitable. [Ball bearings] are typically
produced on dedicated machinery, and firms cannot easily
switch production from one type of bearing to another.
Likewise, it is difficult for domestic producers to shift
sales of [ball bearings] from domestic purchasers to
overseas purchasers.

Final Determination, USITC Pub. 3309, Vol. 1 at 36-38 (citations

omitted).

The Court finds the Commission’s determinations that the ball

bearings industry is fragmented and demand for ball bearings is

weak are supported by substantial evidence and are in accordance

with law. First, with respect to the Commission’s determination
Consol. Court No. 00-07-00373 Page 65

that the ball bearing industry is fragmented, the arguments raised

by NTN do not prove that the Commission’s finding is not supported

by substantial evidence, but rather, call for the Court to reach a

different conclusion. See Consolo, 383 U.S. at 620 (“the

possibility of drawing two inconsistent conclusions from the [same]

evidence does not” preclude the Court from holding that the agency

finding is supported by substantial evidence). Second, with

respect to the Commission’s determination that demand for ball

bearings is weak, NTN’s arguments that the Commission focused on

the recent interim data which showed a decline rather than focusing

on the growth in United States consumption between 1987 and 1998

data and that the Commission should have given greater weight to

forecasts indicating increased demand are without merit because NTN

may not usurp the Commission’s role as fact-finder and substitute

their analysis for the result reached by the Commission. See Maine

Potato Council, 9 CIT at 300, 613 F. Supp. at 1244 (“[i]t is within

the Commission’s discretion to make reasonable interpretations of

the evidence and to determine the overall significance of any

particular factor or piece of evidence”).

However, the Commission’s failure to discuss how commodity-

like it deems the other antifriction bearings prevents the Court

from reviewing the Commission’s determination that ball bearings

are ‘more commodity-like’ than other antifriction bearings

intelligibly. Accordingly, the Court remands this issue to the
Consol. Court No. 00-07-00373 Page 66

Commission to explain how commodity-like it deems the other

antifriction bearings.

III. The Commission’s Cumulation of Subject Imports of Ball
Bearings from France, Germany, Italy, Japan, Singapore and the
United Kingdom

A. Background

1. Statutory Background

In its 19 U.S.C. § 1675a(a)(1) determination, the Commission

considers “the likely volume, price effect, and impact of imports

of the subject merchandise on the industry if the order is revoked

. . . .” Title 19 of the United States Code also states that the

Commission shall consider:

(A) its prior injury determinations, including the
volume, price effect, and impact of imports of the
subject merchandise on the industry before the order was
issued . . . ,

(B) whether any improvement in the state of the
industry is related to the order . . . ,

(C) whether the industry is vulnerable to material
injury if the order is revoked . . . , and

(D) in an antidumping proceeding under [19 U.S.C. §
1675(c)] . . . , the findings of the administering
authority regarding duty absorption under [19 U.S.C. §
1675(a)(4)] . . . .

19 U.S.C. § 1675a(a)(1)(A)-(D) (1994).

However, before the Commission conducts its likelihood of

material injury upon revocation analysis under 19 U.S.C. §
Consol. Court No. 00-07-00373 Page 67

1675a(a)(1), the Commission determines whether to cumulatively

assess the volume and effect of subject imports from all countries

for which sunset reviews were initiated on the same day. Section

1675a(a)(7) of Title 19 provides that:

the Commission may cumulatively assess the volume and
effect of imports of the subject merchandise from all
countries with respect to which reviews under section
1675(b) or (c) of this title 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). Although, the statute prohibits the

Commission from cumulating the subject merchandise if the

Commission “determines that such imports are likely to have no

discernible adverse impact on the domestic industry[,]” id., “in

all other instances cumulation is discretionary, not mandatory.”

Ugine-Savoie Imphy, 26 CIT at ___, 248 F. Supp. 2d at 1210; see

also Indorama Chems. (Thailand) Ltd. v. USITC, 2002 Ct. Intl. Trade

LEXIS 155, at *17, Slip Op. 02-155 (Sept. 4, 2002) (citations

omitted), and Statement of Administrative Action (“SAA”), H.R. Doc.

No. 103-316, at 887 (1994), reprinted in 1994 U.S.C.C.A.N. 4040.24

24
The SAA represents “an authoritative expression by the
Administration concerning its views regarding the interpretation
and application of the Uruguay Round agreements.” H.R. Doc. No.
103-316, at 656. “It is the expectation of the Congress that
future Administrations will observe and apply the interpretations
and commitments set out in this Statement.” Id.; see also 19
U.S.C. § 3512(d) (1994) (“The statement of administrative action
approved by the Congress . . . shall be regarded as an
authoritative expression by the United States concerning the
interpretation and application of the Uruguay Round Agreements and
(continued...)
Consol. Court No. 00-07-00373 Page 68

Thus, the first step in a cumulation discussion is

“discernible adverse impact,” because the Commission may not

cumulatively assess the volume and effect of subject imports if it

determines that such imports are “likely to have no discernible

adverse impact on the domestic industry.” 19 U.S.C. § 1675a(a)(7).

In the Final Determination, the Commission notes that since neither

the statute nor the SAA provides specific guidance on what factors

the Commission is to consider in making its “discernible adverse

impact” determination, “the Commission generally considers the

likely volume of the subject imports and the likely impact of those

imports on the domestic industry within a reasonably foreseeable

time if the orders are revoked.” Final Determination, USITC Pub.

3309, Vol. 1 at 16-17 (citations omitted). Next, the Commission

“must . . . determine that ‘a reasonable overlap of competition’

exists between imports from different countries” and with the

domestic like product. Usinor Industeel, S.A. v. United States,

2002 Ct. Intl. Trade LEXIS 41, at *10-11, Slip Op. 02-39 (April 29,

2002) (quoting Wieland Werke, AG v. United States, 13 CIT 561, 563,

718 F. Supp. 50, 52 (1989)). In order to determine whether a

reasonable overlap of competition is likely, the Commission

generally considers:

(1) the degree of fungibility between the imports from

(...continued)
this Act in any judicial proceeding in which a question arises
concerning such interpretation or application.”)
Consol. Court No. 00-07-00373 Page 69

different countries and between imports and the domestic
like product, including consideration of specific
customer requirements and other quality related
questions; (2) the presence of sales or offers to sell in
the same geographical markets of imports from different
countries and the domestic like product; (3) the
existence of common or similar channels of distribution
for imports from different countries and the domestic
like product; and (4) whether the imports are
simultaneously present in the market.

Final Determination, USITC Pub. 3309, Vol. 1 at 17 n.112 (citing

Weiland Werke, AG, 13 CIT at 563, 718 F. Supp. at 52). “These

factors are not exhaustive, no single factor is determinative, and

completely overlapping markets are not required.” Corus Staal BV

v. USITC, 2003 Ct. Intl. Trade LEXIS 30, at *31, Slip Op. 03-32

(March 21, 2003) (citation omitted). Moreover, since sunset

reviews are prospective in nature, in addition to the

aforementioned statutory requirements, the Commission considers

“other significant conditions of competition that are likely to

prevail if the orders under review are revoked.” Final

Determination, USITC Pub. 3309, Vol. 1 at 17.

2. Factual Background

During this sunset review, the Commission cumulatively

assessed the volume and effects of subject imports from France,

Germany, Italy, Japan, Singapore and the United Kingdom. See Final

Determination, USITC Pub. 3309, Vol. 1 at 33. The Commission’s

determination to cumulate was based on the Commission’s findings
Consol. Court No. 00-07-00373 Page 70

that: (1) “subject imports from all six countries would be likely

to have a discernible adverse impact on the domestic industry if

the orders were revoked[,]” id.; (2) “a reasonable overlap of

competition between the subject imports and the domestic like

product [was] likely to exist if the orders were revoked[,]” id.;

and (3) there were no “significant differences in the conditions of

competition among the subject countries.” Id. Additionally, the

Commission found that subject imports from Romania and Sweden were

not likely to have a discernible adverse impact and, therefore,

these countries were not included in the Commission’s cumulation.

See id.

In the Final Determination, the Commission explained its

finding that subject imports from France, Germany, Italy, Japan,

Singapore and the United Kingdom would be likely to have a

discernible adverse impact on the domestic industry if the orders

were revoked by stating:

Subject imports from France, Germany, Italy, Japan,
Singapore, and the United Kingdom have remained in the
[United States] market in the years since the orders were
imposed. The continuing presence of these subject
imports in the domestic market indicates that subject
foreign producers continue to have the contacts and
channels of distribution necessary to compete in the
[United States] market.

The [ball bearing] industry in each of the six
countries is export-oriented. In four of the six
countries, exports account for [a certain] percent or
more of total shipments. While capacity utilization
rates in the six countries have generally exceeded [a
certain] percent in 1997-1998 and interim 1999, there is
Consol. Court No. 00-07-00373 Page 71

available capacity in each of the six countries. Four of
the six countries are among the top five nations for
total bearing production. [The Commission] therefore
find[s] that there is likelihood of a discernible adverse
impact on the domestic industry if the orders on any of
these six countries were lifted.

Final Determination, USITC Pub. 3309, Vol. 1 at 34-35 (citations

omitted).

The Commission then explained its finding of a reasonable

overlap of competition between the subject imports and the domestic

like product if the orders were revoked by stating:

In the original determination, the Commission found
that subject imports from France, Germany, Italy, Japan,
Singapore, and the United Kingdom competed with each
other and with the domestic like product and cumulated
the volume and price effects of those subject imports.
At that time the Commission noted that competition among
bearings of different sizes and ratings might be limited,
but still found that competition existed among all
imports and the domestic like product for “each type,
size, and rating.” The record in these reviews provides
no reason to depart from the prior overlap of competition
findings concerning subject imports of [ball bearings]
from France, Germany, Italy, Japan, Singapore, and the
United Kingdom.

Parties in favor of continuation of the order and
parties favoring revocation agree that [ball bearings]
are the most commodity-like product of the four products
in these reviews. Purchasers find domestically produced
[ball bearings] to be interchangeable with subject
imports from each of the six countries, despite the
existence of specialty products and qualification
requirements. This is true even for subject imports from
countries such as Singapore and Japan, with parties from
each raising arguments regarding the lack of domestic
competition for their subject imports. Purchasers rarely
make purchasing decisions based on the country of origin
of a bearing.

Bearings are sold both to OEMs and to distributors
Consol. Court No. 00-07-00373 Page 72

and other aftermarket customers. Data gathered in the
course of these reviews indicate that subject imports
compete for OEM sales; in fact, a higher share of imports
are sold to OEMs (over 96 percent) than are domestically
produced [ball bearings] (79.1 percent).

Subject imports from each of the six countries have
been present continuously in the [United States] market
and have been sold throughout the [United States] market.

[The Commission] therefore f[ou]nd that there would
likely be a reasonable overlap of competition between the
subject imports and the domestic like product, and among
the subject imports themselves, if the orders were
revoked.

Final Determination, USITC Pub. 3309, Vol. 1 at 35-36 (citations

omitted).

Finally, the Commission explained its finding that there were

no significant differences in the conditions of competition among

the subject countries by stating:

The volume and price trends varied for subject
imports from all six countries and none was distinct from
all others. Subject producers from Japan have argued
that conditions of competition facing subject imports
from Japan are different from those facing other subject
imports, most notably in the significant investment in
[United States] production facilities made by Japanese-
owned producers. However, [the Commission] do[es] not
find that any of the conditions of competition differ
significantly among the six countries. Notably,
producers in each of the six subject countries also have
investments in [United States] production or are related
to domestic producers.

[The Commission] therefore find[s] that subject
imports from these countries would compete in the [United
States] market under similar conditions of competition.

Final Determination, USITC Pub. 3309, Vol. 1 at 36 (citations

omitted).
Consol. Court No. 00-07-00373 Page 73

B. Cumulation of Subject Imports from Singapore

1. NMB’s Contentions

NMB argues that the Commission’s cumulation of the subject

imports from Singapore with other subject imports was contrary to

law and unsupported by substantial evidence. See Mem. P & A Supp.

Mot. Pls. NMB J. Agency R. (“NMB’s Mem.”) at 12-61. In particular,

NMB contests the cumulation methodologies used by Chairman Koplan,

Commissioners Bragg and Miller, and the conclusions reached by the

Commission regarding cumulation of the subject imports from

Singapore with other subject imports. See id.

First, with respect to the cumulation methodologies used by

the various Commissioners, NMB maintains that: (1) Commissioner

Bragg’s two-step aggregate approach to determine whether there is

discernible adverse impact is contrary to law because “[t]he

statute and SAA provide absolutely no authority for the Commission

to cumulate imports from a particular country when that country’s

imports alone would have no discernible adverse impact[,]”25 id. at

25
Commissioner Bragg provided her own cumulation analysis in
the Final Determination and referred to Potassium Permanganate from
China and Spain, Inv. Nos. 731-TA-125-126 (Review), USITC Pub. 3245
at 27-30 (Oct. 1999), for a complete discussion of the analytical
framework she employs to assess cumulation. See Final
Determination, USITC Pub. 3309, Vol. 1 Bragg’s Views at 65 n.1.
In Potassium Permanganate from China and Spain, Commissioner Bragg
stated that:

in a grouped sunset review, even if imports from each of
(continued...)
Consol. Court No. 00-07-00373 Page 74

15; and (2) Chairman Koplan and Commissioners Miller and Bragg

failed to discuss any factor relating to impact such as competition

and causation issues. See id. at 21; see also id. at 20-26.26

Next, NMB contests the conclusions reached by the Commission

regarding cumulation of the subject imports from Singapore with

other subject imports by arguing that the Commission’s “discernible

adverse impact” determination and the Commission’s finding of “a

reasonable overlap of competition” between imports from Singapore

and the domestic like product were not supported by substantial

evidence and were not in accordance with law. See NMB’s Mem. at

15-19, 26-51.

With respect to the Commission’s “discernible adverse impact”

determination, NMB argues that: (1) “Commissioner Bragg failed to

recognize, discuss, or analyze the distinct nature of the miniature

25
(...continued)
several subject countries are likely to have no
discernible adverse impact on the domestic industry when
analyzed individually, economic reality dictates a
further assessment of whether such imports, in the
aggregate, are likely to have no discernible adverse
impact on the domestic industry.

USITC Pub. 3245 at 28.
26
In the Final Determination, Chairman Koplan and
Commissioner Miller refer to Malleable Cast Iron Pipe Fittings From
Brazil, Japan, Korea, Taiwan, and Thailand, Inv. Nos. 731-TA-278-
280 (Review) and 731-TA-347-348 (Review), USITC Pub. 3274 (Feb.
2000) for a discussion of their analytical framework regarding the
application of the “discernible adverse impact” provision.
See Final Determination, USITC Pub. 3309, Vol. 1 at 17 n.110.
Consol. Court No. 00-07-00373 Page 75

and small, low-end bearings imported from Singapore and the lack of

competition between these bearings and the bearings produced

domestically[,]” id. at 17; (2) “Commissioner Bragg . . . failed to

point to or discuss any pricing evidence showing that imports from

Singapore undersell or would likely undersell the domestic like

product after revocation of the order[,]” id.; (3) “Commissioner

Bragg failed to identify even a single domestic producer that

produced the type of bearings imported from Singapore[,]” NMB’s

Mem. at 17; (4) Commissioner Bragg failed to consider that in the

last three most recent administrative reviews, imports from

Singapore were subject to dumping margins of 2.43 percent, 2.10

percent and 5.33 percent, see id. at 18;27 (5) Chairman Koplan

failed to explain how the factors that he considered in making his

affirmative discernible adverse impact determination (that is,

availability of unused capacity, export orientation of the foreign

27
NMB further argues that in the case at bar, Commissioner
Bragg deviated from her views articulated in Brass Sheet and Strip
from Brazil, Canada, France, Germany, Italy, Japan, Korea, the
Netherlands, and Sweden, Inv. Nos. 701-TA-269 & 270 (Review) and
731-TA-311-317 & 379-380 (Review), USITC Pub. 3290 (Apr. 2000),
because she failed to consider whether the subject imports from
Singapore “have maintained a steady presence in the [United States]
market following imposition of the order and whether revocation
would not create an incentive to foreign producers to increase
shipments.” Reply Br. Supp. Mot. Pls. NMB J. Agency R. (“NMB’s
Reply”) at 21. NMB points out that inter alia, “[t]he record
evidence . . . showed that the Singapore producers did not increase
shipments to the United States despite low dumping margins at the
Department of Commerce, demonstrating that there would be no
increased incentive for Singapore producers to increase shipments
if the order were revoked.” Id. at 21-22.
Consol. Court No. 00-07-00373 Page 76

bearings industry, market presence of imports despite an existing

antidumping order and total production levels) were relevant,

see NMB’s Mem. at 26-27; (6) “[t]he ball bearings industries in

both Romania and Sweden had greater ‘available capacity’ in 1999

than the industry in Singapore[,]” id. at 28;28 (7) unlike Sweden,

“Singapore . . . is not included in the list of top five bearings

producers cited by the Commissioners[,]” NMB Mem. at 29; (8) the

Commission’s reliance on export orientation as a factor to support

the affirmative adverse discernible impact with regard to Singapore

was arbitrary because “[t]he Commissioners have not explained why

such a factor is relevant to an adverse impact analysis” and “NMB

. . . demonstrated on the record [that] the Singapore ball bearing

industry increasingly is directing its exports to Asian markets[,]”

id. at 29-30; (9) the Commission’s analysis regarding the market

presence factor is flawed because “the decline in volume of both

Romanian and Swedish imports under the existing antidumping orders

suggests that revocation of the orders would result in a

corresponding increase in volumes” whereas “the level of Singapore

bearings sold to the [United States] market both prior to and after

28
Chairman Koplan did not cumulate subject imports from
Romania and Sweden because he determined there was no discernible
adverse impact since the two countries had low levels of unused
capacity and low levels of subject imports despite low dumping
margins. See Final Determination, USITC Pub. 3309, Vol. 1 at 34.
Commissioner Miller cumulated subject imports from Romania but did
not cumulate subject imports from Sweden. See id. at 90.
Commissioner Bragg cumulated subject imports from Romania and
Sweden. See id. at 65.
Consol. Court No. 00-07-00373 Page 77

the order has remained small and steady despite the existence of an

antidumping order, suggesting that demand is steady and unaffected

by a dumping margin[,]” NMB Mem. at 31-32; and (10) “[Chairman]

Koplan singles out Romanian bearings as not pre-certified for OEM

customers in the [United States] market” but fails “to explain why

he did not give equal consideration to the fact that, because

Singapore bearings are only non-precision, low-end, miniature or

small ball bearings, they necessarily would be certified only for

low-end applications, not for the applications required of domestic

or other subject imported bearings.” Id. at 33.

With respect to the Commission’s finding of a “reasonable

overlap in competition” between Singapore subject imports and other

subject imports and the domestic like product, NMB contends that:

(1) the Commission erroneously believed that NMB’s sister company

in the United States “imported and shipped bearings from Singapore”

and, therefore, the Commissioners erroneously “lump Singapore in

with all of the other countries and lump [NMB’s sister company] in

with all of the other domestic producers in [the Commission’s]

conclusion that domestic producers are able to complement their

[United States] production with subject imports[,]” NMB Mem. at 40,

see also id. at 36-40; (2) “[Chairman] Koplan based his cumulation

analysis on the mistaken assumption that ‘parties favoring

revocation agree that [ball bearings] are the most commodity-like

product of the four products in these reviews[,]’” NMB Mem. at 40
Consol. Court No. 00-07-00373 Page 78

(quoting Final Determination, USITC Pub. 3309, Vol. 1 at 35 (citing

in turn Timken Posthearing Br. at 8: Tr. at 345-46));29 (3) the

Commission erred in finding that subject imports from Singapore

were fungible with the domestic like product and with other subject

imports because “[b]all bearings from Singapore are physically

distinguishable from domestic bearings and other subject imports”

since “[t]hey consist of non-precision, low-end, mass-produced,

miniature and small bearings with limited ABEC precision tolerance

ranges that the [United States] producers and other subject foreign

producers do not sell in noticeable quantities in the [United

States] market[,]” NMB’s Mem. at 42-43;30 (4) the Commission’s

analysis regarding fungibility is in error because the Final

29
NMB argues that “Mr. Malmstrom, whom the Commissioners
cited to for support in their Opinion, actually indicated that
tapered roller bearings were as commodity-like as ball bearings.”
NMB Mem. at 41 (citing Pl’s App. Mem. P & A Supp. Mot. J. Agency R.
(“NMB’s App.”) 9 at 346). Additionally, NMB maintains that despite
Chairman Koplan’s and Commissioner Bragg’s suggestion that the
parties favoring revocation agreed that ball bearings are the most
commodity-like of the four products in these reviews, “parties
favoring revocation directly disputed the notion that ball bearings
were commodity products and that ball bearings were the most
commodity-like of the products under review.” NMB’s Mem. at 41.
30
NMB points out that “the imports from Singapore are sold
for different end-uses in different market segments and are sold
through different channels of trade than domestic bearings and
subject imports from the other countries.” NMB’s Mem. at 43.
Moreover, NMB maintains that Commissioner Hillman “found evidence
that the miniature bearings imported from Singapore ‘are not
produced domestically in any significant quantities,’ and, further,
that ‘the record contains no firm evidence to the contrary.’” Id.
at 43-44 (quoting Final Determination, USITC Pub. 3309, Vol. 1 at
105.
Consol. Court No. 00-07-00373 Page 79

Determination, USITC Pub. 3309, Vol. 2 at Tbl. BB-II-3, “alleges

that 9 purchasers reported imports from Singapore as being

interchangeable with the domestic like product . . . [while] the

questionnaire responses of the purchasers show that only 8

purchasers actually reported the products as interchangeable[,]”

NMB’s Mem. at 46; (5) “[i]t was error for the Commissioners to have

based their conclusion on interchangeability of the Singapore

bearings on [a certain number of responses that included purchasers

that did not purchase ball bearings imports from Singapore] rather

than only the [certain number of] purchasers” who had purchased

ball bearing imports from Singapore, id. at 46-47; and (6) the

Commission “failed to consider interchangeability between the

subject imports from Singapore and the subject imports from other

subject countries.” Id. at 47; see also id. at 48-51.

Additionally, NMB asserts that the Commission misapplied the

statutory term “likely”, “essentially basing its cumulation

determination on merely ‘possible’ competition.” Id. at 56. In

particular, NMB maintains that “if the evidence of competition for

cumulation is evenly split or inconclusive, competition cannot be

deemed ‘likely’ [under 19 U.S.C. § 1675a(a)(7)].”31 Id. at 54.

31
NMB further asserts that the Commission also misapplied the
statutory term “likely” as it pertains to the Commission’s
determination of whether revocation of an antidumping duty order
“would be likely to lead to continuation or recurrence of material
(continued...)
Consol. Court No. 00-07-00373 Page 80

2. Commission’s Contentions

First, with respect to the cumulation methodologies used by

the various Commissioners, the Commission responds that: (1)

although Commissioner Bragg may have employed a two-step aggregate

approach to determine whether there is no discernible adverse

impact in other reviews, in the review at issue “Commissioner Bragg

clearly and unequivocally stated that because she found that

revocation of ‘each of the [ball bearing] orders, individually,

would be likely to result in a discernible adverse impact to the

domestic industry,’ she did not reach the second stage of her

cumulation analysis,”32 Def.’s Mem. at 49 (quoting Final

Determination, USITC Pub. 3309, Vol. 1 Bragg’s Views at 70; and (2)

“[t]he Commission’s findings regarding the likelihood of a

discernible adverse impact must be understood in light of its

31
(...continued)
injury to an industry in the United States within a reasonably
foreseeable time.” NMB’s Mem. at 53 (citing 19 U.S.C. §
1675(c)(1)); see also NMB’s Reply at 24-28.
32
The Court will not render a decision as to whether
Commissioner Bragg’s second stage (that is, to determine whether
all subject imports not likely to have a discernible adverse impact
individually would have a discernible adverse impact cumulatively)
is in accordance with law because Commissioner Bragg did not reach
the second stage of her two-step cumulation methodology in the
Final Determination. See Final Determination, USITC Pub. 3309,
Vol. 1 Bragg’s Views at 70 (“Because I find that revocation of each
of the [ball bearing] orders, individually, would be likely to
result in a discernible adverse impact to the domestic [ball
bearing] industry, I do not reach the second stage of my cumulation
analysis.”) (Emphasis supplied).
Consol. Court No. 00-07-00373 Page 81

findings regarding the conditions of competition[]” and, therefore,

Chairman Koplan and Commissioners Miller and Bragg did address

factors relating to impact during their discernible adverse impact

analysis. See id. at 54-55.

Next, the ITC argues that the Commission’s discernible adverse

impact determination was supported by substantial evidence and was

in accordance with law. See id. at 49-60. In particular, the

Commission maintains that: (1) Commissioner Bragg based her

discernible adverse impact determination on a country-by-country

basis and “[i]n Singapore’s case, Commissioner Bragg was persuaded

by the substantial total production capacity, the amount of unused

capacity, and the . . . export orientation of Singapore

producers[,]” id. at 49; (2) NMB misconstrues Commissioner Bragg’s

previously articulated views regarding her discernible adverse

impact determination because in Brass Sheet and Strip from Brazil,

Canada, France, Germany, Italy, Japan, Korea, the Netherlands, and

Sweden, USITC Pub. 3290 at 27-28, “Commissioner Bragg clearly

stated that she would require not only that the order have had

little effect on subject imports but also that revocation would

similarly be likely to have no effect[,]”33 Def.’s Mem. at 50; (3)

33
The Commission maintains that “Commissioner Bragg simply
did not find that revocation would be likely to have no effect on
subject imports.” Def.’s Mem. at 51. “Commissioner Bragg
specifically noted the presence of substantial and unused capacity
and the . . . export orientation of the industry in Singapore as
(continued...)
Consol. Court No. 00-07-00373 Page 82

contrary to NMB’s argument that Commissioner Bragg failed to

recognize, discuss or analyze the particular nature of subject

imports from Singapore, “[a] Commissioner is not obligated to

acknowledge or discuss every piece of information on the record .

. . [but] [r]ather, a Commissioner must examine the relevant data

and articulate an explanation for her determination[,]” id. at 52

(citing Taiwan Semiconductor Industry Assoc. v. United States, 24

CIT 220, 237, 105 F. Supp. 2d 1363, 1378-79 (2000)); (4) contrary

to NMB’s argument that Commissioner Bragg failed to identify even

one domestic producer that produced the type of bearings imported

from Singapore, “[t]he Commission is not required to determine

which individual producers are likely to feel the impact[,]” Def.’s

Mem. at 52 (citing Minebea Co. v. United States, 16 CIT 550, 554,

794 F. Supp. 1161, 1165 (1992)); (5) “[a] review of the evidence

upon which the Chairman relied reveals that the factors which

favored not cumulating Romania and Sweden did not similarly favor

not cumulating subject imports from Singapore[,]”34 Def.’s Mem. at

33
(...continued)
evidence indicating that revocation would lead to an adverse
discernible impact on the domestic industry.” Id. Moreover, the
Commission argues that NMB is merely seeking to have this Court
substitute its own evaluation of the evidence for that of the
Commission’s. See id.
34
The Commission points out that Singapore is different than
the non-cumulated countries of Romania and Sweden in that:

[w]hile Plaintiff NMB complains that the percentage of
available unused capacity was [a certain percent] in both
(continued...)
Consol. Court No. 00-07-00373 Page 83

55-56; (6) contrary to NMB’s argument that the Commission’s

reliance on export orientation as a factor to determine discernible

adverse impact is arbitrary, the export orientation factor is

relevant because “[f]oreign producers with little or no domestic

market to rely upon must export. This economic imperative is

particularly acute in an industry such as ball bearing production,

which is capital-intensive and typically requires high levels of

capacity utilization for profitability[,]” id. at 57 (citing Def.’s

Mem., App. Vol. 1, Doc. No. 140 ([Timken]’s Post-Hearing Br. and

Resps. to Commissioner’s Questions) at 1-2 (confidential version);

(7) “the [United States] market was substantially more important to

producers in Singapore” than producers from Romania and Sweden

because exports to the United States from Singapore accounted for

34
(...continued)
Sweden and Romania, the actual volume of unused capacity
in Singapore was [not analogous to Sweden and Romania].
Moreover, the total value of subject imports from
Singapore grew between 1985-87 and 1997-98, sufficient to
ensure a constant share of the total [United States]
market, despite an overall increase in total imports from
all sources in the [United States] market. The share of
total domestic consumption by value accounted for by
subject imports from Singapore was essentially unchanged,
ranging from 1.3 percent to 1.4 percent in 1985-87, 1.4
percent in 1997, and 1.3 percent in 1998. Conversely
both the share and volume of subject imports by value
from Romania and Sweden declined both relatively and
absolutely between 1985-87 and 1997-98. Romania and
Sweden each accounted for only 0.1 percent of total
domestic consumption.

Def.’s Mem. at 56 (citing Final Determination, USITC Pub. 3309,
Vol. 2 at Tbl. BB-I-1).
Consol. Court No. 00-07-00373 Page 84

a greater percentage of all shipments by Singapore in 1998 than the

percentage of all shipments by Romania and Sweden, and “[w]hen

gauged in volume terms, the differences between Singapore on the

one hand and Romania and Sweden on the other become even

sharper[,]” Def.’s Mem. at 57-58 (citing Def.’s Mem., App. Vol. 1,

Doc. No. 167 at Tbls. BB-IV-7 - BB-IV-9 (confidential version));

and (8) contrary to NMB’s assertion that there is no difference

between pre-certified OEM sales and non-certified OEM sales, “OEM

sales, which typically require certification, are important because

of the large volumes typically associated with such sales . . .

[and] subject imports from Singapore were sold directly to OEMs,

indicating that subject imports from Singapore had no trouble

entering a market where certification requirements are the norm.”

Def.’s Mem. at 58.

The ITC further argues that the Commission’s finding of a

reasonable overlap in competition between subject imports from

Singapore and other subject imports and the domestic like product

was supported by substantial evidence and was in accordance with

law. See id. at 47-48, 58-63. Specifically, the Commission

maintains that: (1) Commissioner Bragg properly considered evidence

that weighed for and against a finding of a reasonable overlap in

competition, see id. at 47-48 (citing Final Determination, USITC

Pub. 3309, Vol. 1 Bragg’s Views at 68); (2) “NMB does not explain

how it was harmed by the Commission’s error, which only involved
Consol. Court No. 00-07-00373 Page 85

whether [NMB’s sister company] was an importer, not whether [NMB’s

sister company] was related to ball bearing manufacturers in

Singapore that shipped ball bearings to the United States[,]”

Def.’s Mem. at 59;35 (3) contrary to NMB’s contention, Mr.

Malmstrom, “clearly stated that tapers [tapered roller bearings]

were ‘second,’ in other words, less of a commodity than ball

bearings[,]” id. at 61 (citing Def.’s Mem., App. Vol. 1, Doc. No.

710 at 345-46); (4) Table BB-II-3 was not incorrect as alleged by

NMB since “nine, not eight, purchasers gave their opinion regarding

the interchangeability of subject imports from Singapore and the

domestic like product[,]” Def.’s Mem. at 61-62 (citing Def.’s Mem.,

App. Vol. 2, Doc. Nos. 767, 770, 771, 773, 775, 778, 788, 792, 811

(confidential version)); and (5) contrary to NMB’s argument that

the Commission should have based its conclusions of

interchangeability of the Singapore bearings on the number of

purchasers who had purchased ball bearing imports from Singapore

rather than on the responses of purchasers who had not purchased

35
In its reply brief, NMB contends that the Commission and
Timken concede to the Commission’s incorrect finding that NMB’s
sister company imported ball bearings from Singapore. See NMB’s
Reply at 2. NMB asserts that “[t]he Commission’s error resulted in
the improper decision to cumulate Singapore bearings based on [the
Commission’s] flawed understanding that they were interchangeable
with other [certain quality] imported and domestic bearings.”
Id. at 3. NMB maintains that “[a]t minimum, a remand is required
for the Commission to consider whether Singapore bearings are
interchangeable in light of the accurate understanding that [NMB’s
sister company did not import or sell ball bearings from
Singapore].” Id. at 7; see also id. at 3-7.
Consol. Court No. 00-07-00373 Page 86

ball bearing imports from Singapore, “[t]he Commission has not

generally required purchasers to have actually purchased a specific

subject import in order to provide information in response to the

Commission’s questionnaire. The record contains no evidence to

indicate that purchasers answered questions outside their

knowledge.” Def.’s Mem. at 62-63.

Finally, the Commission contends that it used the proper legal

standard with respect to the statutory term “likely.” See id. at

81-83. Specifically, the Commission asserts that NMB’s

construction of the term ‘likely’ to mean probable “is in direct

conflict with the intent and meaning of the SAA expressly adopted

by Congress.” Id. at 82. In support of its argument, the

Commission states:

The determination called for in these types of reviews is
inherently predictive and speculative. There may be more
than one likely outcome following revocation or
termination. The possibility of other likely outcomes
does not mean that a determination that revocation or
termination is likely to lead to continuation or
recurrence of dumping or countervailable subsides, or
injury, is erroneous, as long as the determination of
likelihood of continuation or recurrence is reasonable in
light of the facts of the case. In such situations, the
order or suspended investigation will be continued.

Def.’s Mem. at 82 (quoting H.R. Doc. No. 103-316, at 883). The

Commission further states “[t]hat more than one likely outcome is

possible can only mean that Congress did not intend the word

‘likely’ to have the meaning ascribed to it by [NMB]” Def.’s Mem.

at 82, and “[t]he Commission made its determination based on what
Consol. Court No. 00-07-00373 Page 87

its interpretation of the evidence indicated were the ‘likely’

outcomes.”36 Id. at 83.

3. Timken’s Contentions

Timken generally agrees with the Commission and maintains that

the Commission’s decision to cumulate subject imports from

Singapore with other subject imports was in accordance with law and

supported by substantial evidence. Timken’s Resp. at 23-35. In

particular, Timken argues that: (1) the Commission “in deciding

that imports from Singapore would have a discernible adverse

impact, did not limit [its] analysis to import volume[,]” id. at

27; (2) the arguments presented by NMB to contest the Commission’s

finding of discernible adverse impact are an invitation by NMB for

36
In its reply brief NMB states:

The Commission’s argument that its decision should be
reviewed solely to determine whether it was supported by
substantial evidence, would read the term “likely” out of
the statute [that is, 19 U.S.C. § 1675(c)(1), 19 U.S.C.
§ 1675a(a)] and would violate two well known cannons of
statutory construction--the canon that legislators are
presumed to use words deliberately, and the rule against
surplussage. In its brief, the Commission concedes that
it did not apply the plain meaning of “likely” on the
basis that the SAA recognizes that there may be more than
one likely outcome. The Commission in essence implies,
but does not explicitly state, that in order for there to
be “more than one likely outcome,” the term “likely” must
be interpreted in some lesser manner--to mean, in
essence, supported by substantial evidence, or
“possible.” Clearly, there can be more than one
“possible” outcome.

NMB’s Reply at 27 (citations omitted).
Consol. Court No. 00-07-00373 Page 88

the Court to re-weigh the evidence considered by the Commission,

see id. at 27-29; (3) the Court does not need to determine whether

an error occurred with respect to NMB’s sister company because “the

Commissioners’ determination that reasonable overlap of competition

existed among the various imports and the domestic product was not

based on any finding regarding the identity of importers of

bearings produced in Singapore[,]” id. at 29-30; and (4) NMB’s

argument regarding the statutory term “likely” should be rejected

because “NMB offers no support for its assertions that the

Commission applied a different standard; NMB’s disagreement is

simply with the weight to be accorded to the evidence collected by

the Commission.” Id. at 35.

C. Cumulation of Subject Imports from The United Kingdom

1. NSK-RHP’s Contentions

NSK-RHP argues that the Commission’s cumulation of the subject

imports from the United Kingdom with other subject imports was

unsupported by substantial evidence. See NSK-RHP’s Mot. at 16-19,

44-51; NSK-RHP’s Reply at 19-23. Specifically, NSK-RHP contends

that “the factual record demonstrates that the Commission should

not have cumulated the [United Kingdom ball bearing] industry for

reasons similar to its decision regarding the Romanian [ball

bearing] industry[,]” NSK-RHP’s Mot. at 16, and ball bearing

imports from the United Kingdom would not have a discernible
Consol. Court No. 00-07-00373 Page 89

adverse impact on the United States ball bearings industry. See

id. at 44-51. NSK-RHP points out that: (1) the subject imports

from the United Kingdom are analogous to the subject imports from

Romania in that they are “very low and trending downward[,]” that

is, “by 1998, Romania’s share of subject import[s] had dropped 0.6

percent to 0.1 percent . . . while the [United Kingdom’s] share

continued its downward trend during interim 1999, dropping to 0.4

percent” from 0.5 percent, id. at 44-45 (citing NSK-RHP’s App. 2 at

Tbl. BB-I-1); (2) the United Kingdom ball bearing industry had

“high capacity utilization rates throughout the review period and”

a small excess capacity, NSK-RHP’s Mot. at 46; (3) the data

regarding excess capacity and all inventories demonstrates that the

United Kingdom ball bearings market data is more comparable to the

Romanian ball bearings market data than to the market data of the

other ball bearing industries that were cumulated, see id. at 47

(citations omitted); (4) the United Kingdom ball bearings industry

is comparable to the Romanian ball bearings industry with regard to

the United States export orientation ratios, see id. at 47-48; (5)

“[t]he size of the [United Kingdom ball bearing] industry . . .

differs significantly from the [ball bearing] industries for the

cumulated countries[,]” id. at 49; and (6) “[t]he Commission . . .

did not mention OEM certification in its decision to cumulate the

[United Kingdom ball bearing] industry, nor did it let this factor

stop it from not cumulating Sweden’s [ball bearing] industry.” Id.
Consol. Court No. 00-07-00373 Page 90

at 50.

2. Commission’s Contentions

The Commission responds that contrary to NSK-RHP’s argument

that the record indicates the Commission should not have cumulated

the United Kingdom ball bearing industry for reasons similar to its

decision regarding the Romanian ball bearing industry, “[s]ubject

imports from the United Kingdom possessed a significant advantage

over subject imports from Romania.” Def.’s Mem. at 68. In

particular, the Commission points out that: (1) “[s]ubject imports

from Romania were not pre-certified for purchase by any OEM

purchaser, a significant impediment in a market dominated by sales

to OEMs[,]” id. at 68 (citing Def.’s Mem., App. Vol. 1, Doc. No.

167 at BB-II-14 (confidential version); (2) although the United

Kingdom ball bearing industry had a higher capacity utilization

rate and a smaller excess capacity than that in Romania, “the

amount of available unused capacity in the United Kingdom was

equivalent [to a certain percentage] of total [United States]

domestic production in 1998, and it was equivalent to [a higher]

percent for the first nine months of 1999[,]” Def.’s Mem. at 68

(citing Def.’s Mem., App. Vol. 1, Doc. No. 167 at Tbl. BB-IV-10

(confidential version)); (3) “the ball bearings industry in the

United Kingdom was less export-oriented than that of Sweden when

expressed as a share of total production, but the actual level of
Consol. Court No. 00-07-00373 Page 91

exports, both to the [United States] market and to all other export

markets, was much higher[,]” Def.’s Mem. at 69 (citing Def.’s Mem.,

App. Vol. 1, Doc. No. 167 at Tbls. BB-IV-9 and BB-IV-10)

(confidential versions)); and (4) contrary to NSK-RHP’s argument

that the Commission placed too much weight on the certification

issue, “[t]he weight to be given to any particular piece of

evidence is left to the Commission as the trier of fact.” Def.’s

Mem. at 69-70 (citing Maine Potato Council v. United States, 9 CIT

at 300, 613 F. Supp. at 1244). Moreover, the Commission maintains

that its determination that ball bearing imports from the United

Kingdom would have a discernible adverse impact was based on

substantial evidence. See Def.’s Mem. at 70-71.

3. Timken’s Contentions

Timken generally agrees with the Commission and asserts that

“[c]ontrary to NSK’s arguments, the Commission determination that

imports from the [United Kingdom] are likely to have a discernible

adverse impact following revocation is supported by substantial

evidence.” Timken’s Resp. at 17; see also Timken’s Resp. at 17-18.
Consol. Court No. 00-07-00373 Page 92

D. Cumulation of Subject Imports from France, Germany and
Italy

1. SKF’s Contentions

SKF argues that the Commission’s cumulation of the subject

imports from France, Germany and Italy with other subject imports

was unsupported by substantial evidence and was contrary to law.

SKF’s Mot. at 2-3, 5-6, 19-25; see also SKF’s Reply Defs.’ Resps.

SKF’s Rule 56.2 Mot. J. Agency R. (“SKF’s Reply”) at 9-15. In

particular, SKF maintains that the Commission ignored “the climate

of competition in the domestic [ball bearing] industry[,]” SKF’s

Mot. at 20, and “[t]he [ball bearings] imported by SKF do not have

a discernible [adverse] impact on the domestic industry as a

whole.” Id. at 22.

First, regarding competition in the domestic ball bearing

industry, SKF contends that the domestic and foreign ball bearing

industry is fragmented and “it is clearly inappropriate to simply

lump together all [ball bearings] from all remaining subject

countries and declare that what is true for a given dimension and

quality of bearing is necessarily true for all other [ball

bearings] regardless of whether the [ball bearings] compete in

actual use or are in some way ‘fungible.’” Id. at 20. SKF

maintains that the question that needs to be answered is whether

the “three subject countries [France, Germany and Italy] actually

compete with, and cause the same injury as, those [ball bearings]
Consol. Court No. 00-07-00373 Page 93

exported from certain other high-volume exporting countries subject

to the orders.” Id. at 22; see also id. at 21 (citing Final

Determination, USITC Pub. 3309, Vol. 2 at BB-I-1 - BB-I-3).

Second, with respect to SKF’s argument of discernible adverse

impact, SKF asserts that “imports from those countries in which SKF

produces [ball bearings] (namely, France, Germany, and Italy)--

even when taken in the aggregate, amount to no more than a small

percentage of total imports, whether measured by value or volume.

Standing alone, this small percentage of imports could not have a

discernible adverse impact on the fragmented [ball bearing]

industry, as the Commissioners decided.” SKF’s Mot. at 23 (citing

Final Determination, USITC Pub. 3309, Vol. 2 at BB-I-1 - BB-I-3,

BB-IV-2 and BB-IV-4). Moreover, SKF argues that: (1) ball bearings

from France, Germany and Italy should have been treated like ball

bearings from Sweden and Romania, see SKF’s Mot. at 23-24; (2) the

Commission’s reliance on the presence of subject imports from

France, Germany and Italy in the domestic market as a rationale for

cumulation is contrary to law since “bearings, when subject to

antidumping duties, are presumed to be fairly traded in the United

States.” Id. at 24 (citing Algoma Steel Corp. v. United States, 12

CIT 518, 520, 688 F. Supp. 639, 642 (1988), aff’d, 865 F.2d 240

(Fed. Cir. 1989); and (3) “reliance on the mere presence of subject

imports to support cumulation does harm to the purpose underlying
Consol. Court No. 00-07-00373 Page 94

the cumulation law, and the sunset process in general.”37 SKF’s

Mot. at 24.

2. Commission’s Contentions

The ITC responds that its decision to cumulate subject imports

from France, Germany and Italy with other subject imports on the

basis of a reasonable overlap in competition and a discernible

adverse impact was supported by substantial evidence and was in

accordance with law. See Def.’s Mem. at 63-67. First, regarding

the Commission’s determination of a reasonable overlap in

competition, the Commission argues that SKF fails to provide

“specific examples of subject imports from France, Germany, or

Italy that do not compete with, and cannot be substituted for, the

domestic like product or other subject imports.” Id. at 64. The

Commission further argues that the subject imports from France,

Germany and Italy were interchangeable with both the domestic like

product and with the other subject imports, see id. (citing Final

Determination, USITC Pub. 3309, Vol. 2 at Tbl. BB-II-3), and

37
SKF argues:

The purpose of sunset reviews is not to find any possible
or conceivable rationale for continuing antidumping or
countervailing duty orders. Rather, the sunset process,
as devised under the URAA, was put in place to eliminate
orders that are unnecessarily penalizing imports, the
volume and pricing of which no longer pose a threat to
the domestic industry.

SKF’s Mot. at 24-25 (emphasis omitted).
Consol. Court No. 00-07-00373 Page 95

“[t]he record also indicated that subject imports from the three

countries moved in similar channels of distribution and had been

continuously present in the market and sold throughout the [United

States], as had other subject imports and the domestic like

product.” Def.’s Mem. at 64 (citing Final Determination, USITC

Pub. 3309, Vol. 1 at 35-36).

Second, with respect to the Commission’s determination of a

discernible adverse impact, the Commission maintains that: (1)

contrary to SKF’s argument that subject imports from France,

Germany and Italy amount to no more than a small percentage of

total imports and, therefore, could not have a discernible adverse

impact, “current levels of subject imports and prices alone cannot

be determinative, for that evades altogether the fundamental

question of what would happen in the event of revocation in the

absence of the orders[,]” Def.’s Mem. at 65; (2) the Commission did

not consider subject imports from France, Germany and Italy

currently in the market as not being fairly traded but did find

“that a continuing presence in the [United States] market implied

a familiarity with the market that would be advantageous in the

event of revocation[,]” id. at 66; (3) “[t]he importance of OEM

sales, and the likelihood that OEM sales will require

certification, give an advantage to producers [such as SKF] already

in the market[,]” id.; and (4) contrary to SKF’s assertion that

subject imports from France, Germany and Italy were analogous to
Consol. Court No. 00-07-00373 Page 96

subject imports from Romania and Sweden, “[s]ubject imports from

France, Germany, and Italy declined from 1985-87 to 1997-98, but

market share of subject imports from each of those three countries

remained well in excess of the shares held by subject imports from

Romania or Sweden.” Id. at 67.

3. Timken’s Contentions

Timken generally agrees with the Commission and maintains that

“contrary to SKF’s arguments, the Commission’s inclusion of France,

Germany and Italy in its cumulative assessment of the likely volume

and effect of the imports is supported by substantial evidence and

is in accordance with law.” Timken’s Resp. at 19. With respect to

the Commission’s determination of a reasonable overlap of

competition, Timken argues that contrary to SKF’s arguments, “[t]he

issue, properly defined . . . is not whether any particular ball

bearing competes with all other ball bearings, regardless of size

or grade . . . [but] whether the large variety of size and grades

of ball bearings imported from each of the subject countries

compete with the products imported from other countries and the

products offered by the domestic producers.” Id. at 19 (citation

omitted). Additionally, Timken maintains that the overlap of

competition standard only requires a reasonable overlap of

competition and not a complete overlap of the markets. See id. at

20 (citing Mukand Ltd. v. United States, 20 CIT 903, 904-05, 937 F.
Consol. Court No. 00-07-00373 Page 97

Supp. 910, 913 (1996)).

Next, with respect to the Commission’s determination of a

discernible adverse impact, Timken contends that the Commission’s

determination was supported by substantial evidence, Timken’s Resp.

at 20-21, and “the Commission lawfully relied on the presence of

imports in [the] current market to support its determination that

the imports are likely to have a discernible adverse impact.”38 Id.

at 21; see also id. at 21-22.

E. Cumulation of Subject Imports from Japan

1. NTN’s Contentions

NTN argues that the Commission’s cumulation of subject imports

from Japan with other subject imports was unsupported by

substantial evidence and was contrary to law. See NTN’s Mot. at 4,

11-12, 32-37. In particular, NTN argues that the Commission’s

reasons for determining that subject imports from Japan are likely

to have a discernible adverse impact if taken “alone, or . . . in

conjunction with one another, are not enough to provide the

38
In its reply brief, SKF argues that “SKF does not assert
that the Commission should ignore current conditions. To the
contrary, SKF alleges that the Commission erred in disregarding
current conditions in favor of unsubstantiated conjecture as to the
future.” SKF’s Reply at 14.
Consol. Court No. 00-07-00373 Page 98

necessary link to show likely discernible adverse impact.”39 Id.

at 34. NTN further argues that the Commission’s finding of a

reasonable overlap in competition between Japanese subject imports

and other subject imports and the domestic like product is not

supported by substantial evidence because: (1) “[r]ecord evidence

shows that ball bearings are not significantly more commodity-like

than other types of bearings[,]” NTN’s Mot. at 35; and (2) “for

many OEM sales, United States produced ball bearings and Japanese-

produced ball bearings are not interchangeable,” id. at 35.

Finally, regarding the Commission’s determination that there were

not any significant differences in the conditions of competition

among the subject countries, NTN argues that “the ITC virtually

ignores the enormous investment by Japanese firms in [United

States] production facilities as compared with the much smaller

amounts of investments by firms in other subject countries.”

Id. at 35-36.

2. Commission’s Contentions

In response to NTN’s arguments, the Commission maintains that:

(1) the Commission properly relied on the factors that it used to

39
NTN provides an example of the Commission’s alleged missing
necessary link to show likely discernible adverse impact by stating
that “the fact that a company has available production capacity
only means that it may produce additional merchandise; it in no way
suggests that that merchandise will have an adverse impact on a
foreign market.” NTN’s Mot. at 34.
Consol. Court No. 00-07-00373 Page 99

determine that subject imports from Japan are likely to have a

discernible adverse impact because these factors were relevant to

the conditions of the Untied States ball bearing market, see Def.’s

Mem. at 73;40 and (2) contrary to NTN’s arguments regarding the

Commission’s finding of a reasonable overlap in competition,

“perfect overlap is not required” and “even assuming . . . that

NAFTA certifications are as important as . . . NTN argues, that

still leaves a significant portion of subject imports and domestic

like product that would otherwise be interchangeable.” Id. at 74-

75.

3. Timken’s Contentions

Timken generally agrees with the Commission and contends that

“injury determination in a sunset determination is inherently

40
The Commission explains the use of its factors to determine
discernible adverse impact by stating:

Continued presence meant ongoing contact by foreign
producers with large-volume OEM manufacturers and their
certification requirements. Unused capacity meant
capacity available for additional export production.
Export orientation meant an industry was forced to look
to outside markets for a significant portion of its
sales, an important factor in an industry with high
capital costs and a need for high capacity utilization
rates.

Def.’s Mem. at 73.
Consol. Court No. 00-07-00373 Page 100

predictive and speculative.”41 Timken’s Resp. at 9 (citing H.R.

Doc. No. 103-316, at 883). Moreover, Timken asserts that the

Commission’s determination regarding a reasonable overlap of

competition “is supported by overwhelming evidence of record

indicating that imports from Japan, other imports and domestic

products are substitutable, are offered in the same geographic

market, are sold through the same channels, and are simultaneously

present in the market.” Timken’s Resp. at 10 (citations omitted).

F. Cumulation of Subject Imports from Italy and the United
Kingdom

1. FAG’s Contentions

FAG asserts that “[t]he Commission’s decision to cumulate

imports of ball bearings from Italy and the United Kingdom was

contrary to the intent of 19 U.S.C. § 1675a(a)(7) because Congress

intended to preclude the Commission from cumulating imports at

negligible levels.” Pl.-Interv.’s Rule 56.2 Mot. J. Agency R.

(“FAG’s Mot.”) at 2. Specifically, FAG maintains that the standard

of determining whether imports are “negligible” under 19 U.S.C. §

1677(24)(A)(i) (1994),42 should be considered by the Commission in

41
NTN argues that “contrary to [Timken’s] assertions, the
predictive and speculative nature of sunset reviews does not
relieve the ITC of its obligation to clearly explain the bases for
its determination.” NTN’s Reply at 4.
42
Title 19 of Section 1677(24)(A)(i) provides in pertinent
(continued...)
Consol. Court No. 00-07-00373 Page 101

its cumulation analysis to determine whether imports from Italy and

the United Kingdom have a “discernible adverse impact.” See id. at

8-10. FAG further maintains that the application of the

negligibility standard under 19 U.S.C. § 1677(24)(A)(i) to the

Commission’s cumulation analysis comports with URAA changes in the

dumping law and, therefore, “if the [cumulation] statute prohibits

the Commission from finding that imports of less than 3 percent may

cause material injury, it would be inconsistent to find that the

same negligible import levels cause an ‘adverse negative impact’ to

the domestic industry.” Id. at 9 (citing Florida Sugar Mktg. &

Terminal Ass’n v. United States, 220 F.3d 1331, 1337 (Fed. Cir.

2000). Applying the negligibility standard of 19 U.S.C. §

1677(24)(A)(i), FAG contends that “[i]n the instant case, the

record shows that imports of ball bearings from Italy and the

United Kingdom fall well below the 3 percent standard for

‘negligible imports.’” FAG’s Mot. at 9.

FAG also argues that the Commission’s cumulation of the

subject imports from Italy and the United Kingdom with other

42
(...continued)
part:

imports from a country of merchandise corresponding to a
domestic like product identified by the Commission are
“negligible” if such imports account for less than 3
percent of the volume of all such merchandise imported
into the United States in the most recent 12-month period
. . . .
Consol. Court No. 00-07-00373 Page 102

subject imports on the basis that subject imports from Italy and

the United Kingdom would have a discernible adverse impact on the

domestic industry if the orders were revoked was unsupported by

substantial evidence. See FAG’s Mot. at 10-16. In particular, FAG

points out that: (1) the import volume of ball bearings from Italy

and the United Kingdom were comparable to the import volume of ball

bearings from the non-cumulated countries of Sweden and Romania,

see id. at 11-12 (citing App. Pl.’s Br. Supp. R. 56.2 Mot. (“FAG’s

Mot. App.”) at 5, Tbl. BB-IV-1 (confidential version)); (2) imports

from Italy and the United Kingdom accounted for a certain

percentage of United States consumption that was comparable to the

non-cumulated countries of Sweden’s and Romania’s percentage of

United States consumption, FAG’s Mot. at 13-14 (citing FAG’s Mot.

App. 3, Tbl. BB-I-1 (confidential version)); (3) since Italy’s and

the United Kingdom’s import penetration levels are similar to

Romania’s import penetration levels, and Italy’s and the United

Kingdom’s capacity utilization rates are considerably higher than

Romania’s capacity utilization rates, “the Commission’s decisions

that imports from Italy and the United Kingdom would have a

discernible adverse impact on the domestic industry should the

orders be revoked, while the imports from Romania would not, are in

irreconcilable conflict[,]” FAG’s Mot. at 14; and (4) the Italian

and United Kingdom producers have affiliated producers in the

United States and it is therefore less likely that subject imports
Consol. Court No. 00-07-00373 Page 103

from Italy and the United Kingdom would have a discernible adverse

impact on the domestic industry. See id. at 14-15 (citing Final

Determination, USITC Pub. 3309, Vol. 2 at Tbl. BB-I-11

(confidential version)).

2. Commission’s Contentions

In response to FAG’s argument that the Commission should apply

the negligiblity standard under 19 U.S.C. § 1677(24)(A)(i) to the

Commission’s cumulation analysis, the Commission maintains that FAG

“overlooks the distinctions between the negligibility determination

the Commission makes in an original investigation and the

determination it must make in the course of a five-year review.”

Def.’s Mem. at 72. The Commission further maintains that “[i]f

Congress had wished to adopt a bright-line, three-percent test for

negligibility in five-year reviews, it could have imposed such a

test . . . [but] did not do so.” Id. (citing H.R. Doc. No. 103-

316, at 883).43

43
In its reply brief, FAG “admits that a strict numerical
test does not apply to the discernible adverse impact analysis[,]”
Reply Br. Supp. FAG’s Rule 56.2 Mot. J. Agency R. (“FAG’s Reply”)
at 2, but “the three percent standard present in 19 U.S.C. §
1677(24)(A)(i) should be used as a benchmark or guiding principle
in assessing the negligibility of imports in the subject sunset
reviews.” Id. at 3.
Consol. Court No. 00-07-00373 Page 104

3. Timken’s Contentions

Timken agrees with the Commission and argues that the

Commission’s cumulation of subject imports from Italy and the

United Kingdom with other subject imports was supported by

substantial evidence and was in accordance with law. See Timken’s

Resp. at 12-16. Timken argues that: (1) FAG’s arguments regarding

the United Kingdom should be disregarded because “FAG did not

intervene in the appeal regarding the [United Kingdom] filed by

NSK-RHP (Ct. No. 00-07-00374),”44 id. at 12; (2) contrary to FAG’s

argument that the Commission should apply the negligibility

standard under 19 U.S.C. § 1677(24)(A)(i) to the Commission’s

cumulation analysis, “Congress expressly rejected a numerical

standard to determine whether imports were not likely to have any

discernible adverse impact[,]” id. at 13 (citing H.R. Doc. No. 103-

316, at 883); and (3) the “ITC’s decision to include Italian and

[United Kingdom] imports in its cumulative assessment of subject

imports was supported by substantial evidence.” Timken’s Resp. at

14; see also id. at 14-16.

44
FAG points out that “FAG’s motion to intervene in case 00-
07-00374 was granted on October 2, 2000.” FAG’s Reply at 1 (citing
Ex. A). The Court notes that the order FAG points to granted a
consent motion to intervene filed by The Barden Corporation (U.K.)
Limited and The Barden Corporation. Although FAG refers to FAG and
The Barden Corporation as “collectively FAG” in its 56.2 motion and
reply brief, it is not accurate for FAG to argue that it intervened
in case 00-07-00374. See FAG’s Mot. at 1; see also FAG’s Reply at
1. Therefore, FAG’s arguments regarding the United Kingdom will
not be considered by this Court.
Consol. Court No. 00-07-00373 Page 105

G. Analysis: The Commission’s Cumulation of Subject Imports
of Ball Bearings from France, Germany, Italy, Japan,
Singapore and the United Kingdom

The parties have raised numerous issues regarding the

Commission’s cumulation of the subject imports, but before the

Court can consider these issues, the Court must first determine

whether the Commission used the proper legal standard with respect

to the statutory term “likely.”45 In Usinor Industeel, the Court

found that the language of 19 U.S.C. § 1675 “is clear . . . [and

that] ‘likely’ means ‘likely’--that is, probable.” Usinor

Industeel, 2002 Ct. Intl. Trade LEXIS 41, at *20 (citing Chevron,

467 U.S. 842-43); see also Nippon Steel Corp. v. United States,

2002 Ct. Intl. Trade LEXIS 152, at *11, Slip Op. 02-153 (Dec. 24,

2002) (“The Court finds that likely means probable within the

context of 19 U.S.C. §§ 1675(c) and 1675a(a).”); AG der Dillinger

Huttenwerke v. United States, 2002 Ct. Intl. Trade LEXIS 107, at

*28 and n.14, Slip Op. 02-107 (Sept. 5, 2002) (finding in a

countervailing duty sunset review determination that “it is not

sufficient for Commerce merely to indicate the possibility that

benefits could still be given under the [subsidy] program. Rather,

Commerce must make factual findings that would indicate whether

45
“The ‘likely’ standard is applied in several sunset review
analyses.” Usinor Industeel, S.A. v. United States, 2002 Ct. Intl.
Trade LEXIS 151, at *5 n.2, Slip Op. 02-152 (Dec. 20, 2002) (citing
19 U.S.C. §§ 1675a(a)(1), 1675a(a)(2), 1675a(a)(3), 1675a(a)(4),
1675a(a)(7)).
Consol. Court No. 00-07-00373 Page 106

such benefits would be probable” or “more likely so than not”);

Usinor v. United States, 2002 Ct. Intl. Trade LEXIS 98, at *71,

Slip Op. 02-70 (July 19, 2002) (“‘likely’ is tantamount to

‘probable,’ not merely ‘possible.’ Under the standard articulated

in Chevron, the court concludes that the meaning of the term is

clear and terminates its inquiry there.” (Citations omitted).

In the case at bar, the Commission in the Final Determination,

USITC Pub. 3309, did not expressly state which standard of the term

“likely” it applied with respect to its cumulation analysis under

19 U.S.C. § 1675a(a)(7) and its likelihood of material injury upon

revocation analysis under 19 U.S.C. § 1675a(a)(1).46 However, the

46
Section 1675a(a)(1) of Title 19 provides in pertinent part:

In a review conducted under section 1675 . . . (c)
of [Title 19], the Commission shall determine whether
revocation of an order . . . would be likely to lead to
continuation or recurrence of material injury within a
reasonably foreseeable time. The Commission shall
consider the likely volume, price effect, and impact of
imports of the subject merchandise on the industry if the
order is revoked . . . . The Commission shall take into
account–-

(A) its prior injury determinations, including the
volume, price effect, and impact of imports of the
subject merchandise on the industry before the order was
issued . . . ,

(B) whether any improvement in the state of the
industry is related to the order . . . ,

(C) whether the industry is vulnerable to material
injury if the order is revoked . . . , and

(continued...)
Consol. Court No. 00-07-00373 Page 107

Commission in its brief to the Court states that “NMB’s

construction of [the term likely to mean probable] . . . is in

direct conflict with the intent and meaning of the SAA expressly

adopted by Congress.” Def.’s Mem. at 82. Additionally, relying on

the SAA, H.R. Doc. 103-316, at 883, the Commission states that

“[the] more than one likely outcome is possible [language in the

SAA] can only mean that Congress did not intend the word ‘likely’

to have the meaning ascribed to it by [NMB],” id. at 82, and “[t]he

Commission made its determination based on what its interpretation

of the evidence indicated were the ‘likely’ outcomes.” Id. at 83.

Given that this Court finds that “likely” means probable

within the context of 19 U.S.C. § 1675(c) and 19 U.S.C. § 1675a(a),

the Court finds that the Commission did not use the proper legal

standard with regard to the statutory term “likely.” In light of

this finding, it would be premature for the Court to address the

substantial evidence arguments raised by the plaintiffs in this

action (that is, NMB, NSK-RHP, SKF, NTN and FAG) with respect to

the Commission’s cumulation determination and the Commission’s

likelihood of material injury upon revocation determination in

46
(...continued)
(D) in an antidumping proceeding under [19 U.S.C. §
1675(c)] . . . , the findings of the administering
authority regarding duty absorption under [19 U.S.C. §
1675(a)(4)] . . . .

19 U.S.C. § 1675a(a)(1)(A)-(D).
Consol. Court No. 00-07-00373 Page 108

general. Accordingly, the Court remands this issue to the ITC to:

(1)(a) apply this Court’s finding as to the meaning of the term

“likely” in determining, pursuant to 19 U.S.C. § 1675a(a)(7),

whether to cumulate subject imports of ball bearings from France,

Germany, Italy, Japan, Singapore and the United Kingdom;47 (b)

reconcile the error alleged by NMB with respect to NMB’s sister

company, if the Commission utilizes NMB’s sister company in the

Commission’s cumulation determination; and (c) apply this Court’s

finding as to the meaning of the term “likely” in determining,

pursuant to 19 U.S.C. § 1675a(a)(1), whether revocation of

antidumping duty orders on ball bearings from France, Germany,

Italy, Japan, Singapore and the United Kingdom, would likely lead

to continuation or recurrence of material injury.

47
The Court finds that contrary to FAG’s argument, the
Commission does not need to utilize the negligibility standard
under 19 U.S.C. § 1677(24)(A)(i) during the Commission’s cumulation
analysis. The Senate Report on the URAA provides in pertinent
part:

The Committee believes that it is appropriate to preclude
cumulation where imports are likely to be negligible.
However, the Committee does not believe that it is
appropriate to adopt a strict numerical test for
determining negligibility because of the extraordinary
difficulty in projecting import volumes into the future
with precision.

S. Rep. 103-412 at 51 (emphasis supplied); see also Neenah Foundry
Co. v. United States, 25 CIT ___, ___ 155 F. Supp. 2d 766, 776-77
(2001).
Consol. Court No. 00-07-00373 Page 109

CONCLUSION

This case is remanded to the Commission to: (1) explain how

commodity-like the Commission deems the other antifriction

bearings; and (2)(a) apply this Court’s finding as to the meaning

of the term “likely” in determining, pursuant to 19 U.S.C. §

1675a(a)(7), whether to cumulate subject imports of ball bearings

from France, Germany, Italy, Japan, Singapore and the United

Kingdom, (b) reconcile the error alleged by NMB with respect to

NMB’s sister company, if the Commission utilizes NMB’s sister

company in the Commission’s cumulation determination, and (c) apply

this Court’s finding as to the meaning of the term “likely” in

determining, pursuant to 19 U.S.C. § 1675a(a)(1), whether

revocation of antidumping duty orders on ball bearings from France,

Germany, Italy, Japan, Singapore and the United Kingdom would

likely lead to continuation or recurrence of material injury.

______________________________
NICHOLAS TSOUCALAS
SENIOR JUDGE

Dated: September 3, 2003
New York, New York