I. Introduction

This Binational Panel, convened under Chapter 19 of the North American Free Trade Agreement (�NAFTA�), Dec. 17, 1992, Can.-Mex.-U.S., 32 I.L.M. 605, 682 (entered into force Jan. 1, 1994), deliberates a challenge to the injury determination by the United States International Trade Commission (�Commission�) in the Full Sunset Review of Magnesium from Canada. USITC Pub. 3324, Inv. Nos. 701-TA-309-A-B (countervailing duties) and 731-TA-528 (antidumping duties) (July 2000); see Magnesium From Canada, 65 Fed. Reg. 47,517 (Aug. 2, 2000) (notice of final results).

On September 5, 1991, Magnesium Corporation of America (�Magcorp�) filed a petition with the United States International Trade Administration of the United States Department of Commerce (�Commerce�), see 56 Fed. Reg. 49,743 (Oct. 1, 1991) (initiation of antidumping duty investigation); 56 Fed. Reg. 49,747 (Oct. 1, 1991) (initiation of countervailing duty investigation), and with the Commission, see 56 Fed. Reg. 46,443 (Sept. 12, 1991) (institution of preliminary antidumping and countervailing duty investigations) alleging that an industry in the United States producing primary magnesium was being materially injured, or was threatened with material injury, by reason of dumped or subsidized magnesium imported from Canada. In July 1992, Commerce found that Canadian pure magnesium was being dumped on the U.S. market, and that Canadian pure and alloy magnesium being imported into the United States had benefited from countervailable subsidies. See 57 Fed. Reg. 30,939 (July 13, 1992) (dumping of pure magnesium); 57 Fed. Reg. 30,946 (July 13, 1992) (countervailable subsidies on pure and alloy magnesium). In August 1992, the Commission determined that dumped and subsidized pure magnesium, and subsidized alloy magnesium from Canada were causing material injury to the U.S. industry.¹ Magnesium from Canada, USITC Pub. 2550, Inv. Nos. 701-TA-309 and 731-TA-528 (Final) (August 1992); see 57 Fed. Reg. 38,696 (Aug. 26, 1992). Thereafter, Commerce issued an antidumping duty order covering the pure magnesium, 57 Fed. Reg. 39,399 (Aug. 31, 1992), and countervailing duty orders covering the pure and alloy magnesium, 57 Fed. Reg. 39,392 (Aug. 31, 1992).

On August 2, 1999, Commerce initiated five-year sunset reviews pursuant to section 751(c) of the Tariff Act of 1930, as amended (�Tariff Act�), 19 U.S.C. � 1675(c), to determine whether revocation of the antidumping order on pure magnesium, or of the countervailing duty orders on pure or alloy magnesium, from Canada, would likely lead to the continuation or recurrence of dumping or countervailable subsidization, respectively. See 64 Fed. Reg. 41,915.

On August 2, 1999, the Commission instituted five-year sunset reviews, pursuant to section 751(c) of the Tariff Act, 19 U.S.C. � 1675(c), to determine whether revocation of the antidumping order covering pure magnesium, or the countervailing orders covering pure magnesium or alloy magnesium, would likely lead to continuation or recurrence of material injury to the U.S. industry. See 64 Fed. Reg. 41,961. Responding to the notice of institution, in opposition to revocation of the orders, was the original petitioner, Magcorp, a domestic producer of both pure and alloy magnesium. See Views of the Commission in the Full Sunset Review of Magnesium From Canada contained in USITC Pub. 3324, Inv. Nos. 701-TA-309-A-B and 731-TA-528, at 5 (July 2000) (�Views�). Responding in support of revocation of the orders were the Government of Canada, the Gouvernement du Qu�bec (�Qu�bec�), and Norsk Hydro Canada, Inc. (�NHCI�), a Canadian producer and exporter of pure and alloy magnesium. See id. Also responding in support of revocation of the orders were a U.S. alloy magnesium consumer, General Motors Corp. (�General Motors�), and a U.S. pure magnesium consumer, Noranda Aluminum, Inc. (�Noranda�). See id. at 5 n.11. Not responding to the notice of institution, but appearing later in support of revocation of the orders, was an additional U.S. alloy magnesium consumer, Northern Diecast Corporation (�Northern Diecast�). See id. at 5-6. Pursuant to the responses, the Commission decided that it would conduct full five-year reviews concerning these orders, under section 751(c)(5) of the Tariff Act, 19 U.S.C � 1675(c)(5) (2000). See 64 Fed. Reg. 62,690 (Nov. 17, 1999).

On February 29, 2000, Commerce preliminarily found that revocation of the antidumping order on pure magnesium would likely lead to recurrence or continuation of dumping. 65 Fed. Reg. 10,768. In connection therewith, it assigned an antidumping duty rate of 21.00 percent ad valorem for NHCI and for all others. Id. at 10,769. At the same time, Commerce preliminary found that revocation of the countervailing duty orders on pure or alloy magnesium would likely lead to recurrence or continuation of countervailable subsidy. 65 Fed. Reg. 10,766 (Feb. 29, 2000). It assigned countervailing duties on pure and alloy magnesium at rates of 1.84 percent ad valorem for NHCI, and 4.48 percent ad valorem for all others.²  Id. at10,767. In July 2000, Commerce issued affirmative findings with regard to all three orders. See Pure Magnesium From Canada, 65 Fed. Reg. 41,436 (July 5, 2000) (final results of full sunset review of antidumping duty order); Pure Magnesium and Alloy Magnesium From Canada, 65 Fed. Reg. 41,444 (July 5, 2000) (final results of full sunset reviews of countervailing duty orders). The final results of the full sunset reviews did not disturb the antidumping duty rates in place, see 65 Fed. Reg. 41,436, but they ultimately³ adjusted the countervailing duty rate on pure and alloy magnesium for �all others� to 7.34⁴ percent ad valorem. See 65 Fed. Reg. 41,444. On remand, Commerce again adjusted this rate to 1.84 percent ad valorem. See Results of Redetermination Pursuant to Panel Remand, Alloy Magnesium and Pure Magnesium From Canada, NAFTA Article 1904 Panel Review USA-CDA-00-1904-07.

The Commission held a hearing on May 31, 2000. See Magnesium From Canada, 65 Fed. Reg. 47,517 (Aug. 2, 2000). Appearing at the hearing were Magcorp, Qu�bec, NHCI, Noranda, and Northern Diecast. Views at 5-6. Filing briefs were the same entities, as well as, General Motors. Id. at 6.

On August 2, 2000, the Commission published a notice of its final determination that, in the case of each of the three orders, revocation would be likely to lead to continuation or recurrence of material injury to the domestic industries within a reasonably foreseeable time. Magnesium From Canada, 65 Fed. Reg. 47,517; see Magnesium from Canada, USITC Pub. 3324, Inv. Nos. 701-TA-309-A-B and 731-TA-528 (Review) (July 2000).
 

Binational panel review of final antidumping and countervailing duty determinations by the investigating authorities of NAFTA Parties is founded on Chapter 19 of the treaty. Article 1904 of the treaty provides that, pursuant to proper request, �each Party shall replace judicial review of final antidumping and countervailing duty determinations with binational panel review.� NAFTA art. 1904(1). NAFTA Annex 1911 specifies that included among such final determinations are the results of five-year reviews by the Commission under section 751(c) of the Tariff Act, 19 U.S.C. � 1675(c) (2000).
 

Under NAFTA Article 1904(2), panels are to determine whether the antidumping or countervailing duty determination under review �was in accordance with . . . . the relevant statutes, legislative history, regulations, administrative practice and judicial precedents to the extent that a court of the importing Party would rely on such materials in reviewing a final determination of the competent investigating authority.�
 

NAFTA Chapter 19 review panels are directed by Article 1904(3) to �apply the standard of review set out in Annex 1911 and the general legal principles that a court of the importing Party otherwise would apply to a review of a determination of the competent investigating authority.� NAFTA Annex 1911 defines the standard of review to be applied in a panel review, in the case of the United States, as �the standard set out in section 516A(b)(1)(B) of the Tariff Act.� This section requires that a Panel �hold unlawful any determination, finding, or conclusion found . . . to be unsupported by substantial evidence on the record, or otherwise not in accordance with law.� 19 U.S.C. � 1516a(b)(1)(B) (2000). The United States Supreme Court has defined �substantial evidence� as �more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.� Universal Camera Corp. v. NLRB, 340 U.S. 474, 477 (1951). Subsection 516A(b)(2) of the Tariff Act specifies that �the record,� for this purpose, means information placed on the record during the administrative proceeding. 19 U.S.C. � 1516a(b)(2) (2000). Thus, regarding the Commission�s findings of fact, it is the task of this Panel to determine whether they are supported by substantial evidence existing on the administrative record. Regarding the Commission�s legal conclusions, this Panel is charged to determine whether they are �in accordance with law.� 19 U.S.C. � 1516a(b)(1)(B) (2000).
 

A number of changes have occurred in the magnesium market since the original investigation. First, the largest domestic producer at the time of the petition, Dow Chemical Co. (�Dow�) ceased production of magnesium in November 1998, following extensive weather damage to its 65,000-metric-ton facility in Freeport, Texas. See Staff Report to the Commission on Inv. Nos. 701-TA-309-A-B and 731-TA-528 at I-11 (Review) (public version) (June 26, 2000) (�PR�); Staff Report to the Commission on Inv. Nos. 701-TA-309-A-B and 731-TA-528 at I-19 (Review) (confidential version) (June 26, 2000) (�CR� or �Staff Report�). Second, at the time of the original investigation there were only two Canadian magnesium producers, NHCI and Timminco Limited (�Timminco�).⁵ See PR at IV-1; CR at IV-6. However, by the time of this sunset review, Noranda had plans to establish a new magnesium producer in Canada, Magnola Metallurgy, Inc. (�Magnola�).⁶ See PR at IV-1, IV-4; CR at IV-6 to -7. Based on figures provided by Magnola�s president, as revised by its counsel, the Commission found that Magnola was likely to produce 63,000 metric tons of primary magnesium annually when it reached full capacity. Views at 19, 35; see also PR at IV-4 & n.3-4; CR at IV-7 & n.3-4. Based on the same sources, the Commission also made findings regarding Magnola�s product and likely exportation to the United States of both pure and alloy magnesium during each of the years 2001 and 2002.⁷ Views at 20 (pure), 35 (alloy).

Only two Canadian producers were individually examined by Commerce: NHCI, for which individual rates were established, and Timminco, which Commerce excluded from the order.⁸ See 65 Fed. Reg. 41,444 (July 5, 2000) (countervailing); 65 Fed. Reg. 41,436 (July 5, 2000) (antidumping). Since Magnola was not producing or exporting to the United States at the time Commerce conducted its sunset review, Commerce stated that Magnola was not �subject to this order.� See Issues and Decision Memo for the Full Sunset Reviews of Pure Magnesium and Alloy Magnesium from Canada (�Commerce Decision Memo�) (from Jeffrey A. May, Director, Office of Policy, Import Administration, to Troy H. Cribb, Acting Assistant Secretary of Import Administration, (June 27, 2000)), as incorporated by reference into Pure Magnesium and Alloy Magnesium From Canada, 65 Fed. Reg. 41,444 (July 5, 2000)). Based upon the Commerce Department�s finding that Magnola was not �subject� to the sunset review, Qu�bec argues that the Commission had no authority to consider evidence concerning Magnola. Qu�bec�s Brief at 37-40.

In this context, Qu�bec proffers that Commerce stated that it regarded consideration of Magnola ��not appropriate� �in the course of these sunset reviews.�� Id. at 39; see id. at 14 (citing Commerce Decision Memo at 16). Qu�bec contends that under U.S. statutes, the respective roles of Commerce and the Commission are clearly demarked. Id. at 37. It is the Commerce Department�s task to determine which producers and which merchandise are subject to a finding of subsidization or dumping. Id. Qu�bec argues that under U.S. law, it is the Commission�s task to determine whether the imports that Commerce has designated as unfairly traded are causing-or, in the case of sunset reviews, are �likely to lead to continuation or recurrence� of-material injury. Id. at 37 (citing 19 U.S.C. �� 1675a(a)(1) (sunset reviews), 1671(a) (countervailing duties), 1673 (antidumping duties), and 1675(b)(2)(A) (changed circumstances reviews)). Accordingly, argues Qu�bec, Commerce excluded Magnola from its investigation, and the Commission had no lawful basis for building projected Magnola shipments into its injury analysis. Id. at 39.

To further its analysis, Qu�bec relies in part on 19 U.S.C. � 1675a(a)(1), which states that �[t]he Commission shall consider the likely volume, price effect, and impact of imports of the subject merchandise on the industry if the order is revoked or the suspended investigation is terminated.� 19 U.S.C. � 1675a(a)(1) (2000) (emphasis added); see Qu�bec�s Brief at 37. In 19 U.S.C. � 1677(25) the statute specifies that ��subject merchandise� means the class or kind of merchandise that is within the scope of . . . a review.� 19 U.S.C. � 1677(25) (2000).

The Commission responds that the decision not to review Magnola for individual rates is a practice of Commerce when the company is neither producing nor exporting the subject merchandise to the United States, and is therefore not yet subject to the order at the time of investigation. Commission�s Brief at 67 n.158 (citing the Commerce Department�s brief filed In the Matter of Pure Magnesium and Alloy Magnesium from Canada, USA-CDA-00-1904-07). However, argues the Commission, although Magnola had not yet shipped any subject goods to the United States, the future products that the Commission had found Magnola would likely be exporting within a reasonably foreseeable time, would be subject to the orders and dutiable at the �all others� rate when they were ultimately imported into the United States. Id. at 67.

The statute requires the Commission in a sunset review to conduct a prospective analysis of what is likely to occur within a reasonably foreseeable time. 19 U.S.C. �� 1675(c)(1), 1675(d)(2), 1675a(a)(1) (2000). Sunset reviews are �inherently predictive and speculative.� Statement of Administrative Action, Uruguay Round Agreements Act (�URAA�), H.R. Doc. No. 103-316 (�SAA�), Vol. I at 883 (1994). Under U.S. legislation, antidumping and countervailing duty orders are country- and product-specific. See 19 U.S.C. �� 1671(a), 1671d(c)(5)(B), 1673 (2002). However, orders are not company-specific. See id. The only exception is where an order excludes a particular company based upon a Commerce finding that the company did not dump or benefit from a countervailable subsidy. See Notice of Final Rule, 62 Fed. Reg. 27,296 at 27,310-11 (Dep�t Commerce May 19, 1997) (discussion of comments relating to regulation codified at 19 C.F.R. � 351.204). In this matter, regarding the countervailing duty orders on alloy and pure magnesium, Timminco was the only Canadian company excluded from the order. See 57 Fed. Reg. 30,946 (Dep�t Commerce July 13, 1992) (original investigation); 65 Fed. Reg. 41,444 (Dep�t Commerce July 5, 2000) (sunset review). Thus, the orders apply to all other Canadian producers or exporters of primary magnesium.

However, that all producers or exporters, other than Timminco, are �subject� to the orders, does not mean that each such company will be individually investigated for establishment of company-specific rates. Companies not investigated are still subject to the order, and their exports assessable at an �all others� rate. 19 U.S.C. �� 1671d(c)(1)(B)(i)(I), 1671d(c)(5) (2000). Thus, the fact that a company is not reviewed by Commerce for individual rates, because it is not yet exporting subject goods to the United States, does not exclude the company from the order. See id. As noted above, if that company does export subject goods to the United States while the order is still in effect, the order will cover those goods. See id. If it is likely that such exports will take place within a reasonably foreseeable time following revocation of the orders, then such exports must be considered by the Commission in a sunset review. See id. Consequently, the Panel finds that the Commission�s inclusion of Magnola�s likely exports is in accordance with law.

Qu�bec also argues that the Commission violated its statutory duty to consider the nature of the subsidy with respect to Magnola�s prospective imports. Qu�bec�s Brief at 40-44. Qu�bec argues that the U.S. sunset statute mandates that �[i]f a countervailable subsidy is involved [in a sunset proceeding], the Commission shall consider information regarding the nature of the countervailable subsidy.� Qu�bec�s Brief at 41 (citing to 19 U.S.C. � 1675a(a)(6)) (Qu�bec�s emphasis omitted).

The Commerce Department�s affirmative subsidy determination in the sunset investigation rested on a single 1988 industrial development grant by Qu�bec to NHCI, which Commerce amortized several years forward. See 65 Fed. Reg. 41,444 (July 5, 2000) (sunset review). Qu�bec contends that, had the Commission considered the nature of the subsidy, it would have concluded that future Magnola imports could not benefit from the sole relevant subsidy. Qu�bec�s Brief at 40-41. Thus, argues Qu�bec, the Commission failed to fulfill its statutory mandate to consider �information regarding the nature of the countervailable subsidy.� Id. at 44.

The SAA cautions, however, that the Commission may not ignore the Commerce Department�s subsidy determination. See SAA at 887. The Commission is not at liberty to re-calculate the subsidy under the statutory framework, notwithstanding that the subsidy in this case was provided only to NHCI. The Commission, in this sunset review, is required to rely on the Commerce determination, which subjects future exports by Magnola to the order. Accordingly, the Panel finds that the Commission considered the nature of the subsidy in accordance with law.
 

With regard to each of the three orders, the statute requires the Commission to determine �whether revocation of an order . . . would be likely to lead to continuation or recurrence of material injury within a reasonably foreseeable time.� 19 U.S.C. � 1675a(a)(1) (2000) (emphasis added); see also 19 U.S.C. � 1675(c) (2000). Subsequent to the Panel�s April 17, 2002 hearing, pursuant to Rule 68(1)(b) of the Rules of Procedure for Article 1904, counsel for Qu�bec submitted the April 29, 2002 decision of the U.S. Court of International Trade in Usinor Industeel, S.A. v. United States, No. 01-00006, slip op. 2002-39 (Ct. Int�l Trade). See Rule 68 Submission by Qu�bec (May 22, 2002). Qu�bec asked the Panel to consider, in light of Usinor, whether the Commission had correctly applied the statutory term �likely.� See id.

The word �likely� plainly refers to a probability of at least slightly more than fifty percent-a condition also referred to as �probable.� In Usinor, the court merely recognized that, for this statute, ��[l]ikely� means �likely� - that is, probable.� Usinor, No. 01-00006, slip op. at 13. Thus, regarding the meaning of the statutory term �likely,� Usinor offers nothing new. The issue in Usinor did not exist because of a need to clarify the meaning of �likely.� See id. The issue arose because certain language within the Commission�s Usinor views suggested that, in one part of the Commission�s analysis, �likely� might not have been given its plain meaning. Qu�bec�s counsel points to no similarly problematic language in the Commission�s Views on the present matter, and this Panel can find no language that suggests anything other than that �likely� was given its plain meaning.

Furthermore, even if the vague assertions that counsel included in its Rule 68 submission had constituted such an argument, that rule permits the submission only of subsequent authority that relates to arguments previously raised during the appropriate time periods. See NAFTA Art. 1904 Binational Panel Rule 68(1)(b). For example, under rule 68(1)(b), a participant is required to set out, inter alia, �the page reference of the brief of the participant to which the decision or judgment relates.� Id. Examination of the pages identified in Qu�bec�s Brief pursuant to Rule 68(1)(b), reveals that it failed to raise any argument relating to the meaning of the term �likely� during the appropriate periods. It is not open to counsel to raise such an argument now.
 

For the three orders under review, the statute requires that the Commission determine �whether revocation of an order . . . would be likely to lead to continuation or recurrence of material injury within a reasonably foreseeable time.� 19 U.S.C. � 1675a(a)(1) (2000) (emphasis added). Qu�bec asserts that, in order to satisfy the statute�s �lead to� requirement, the Commission must consider the extent to which likely post-revocation injury would be attributable to the revocation. Qu�bec�s Reply Brief at 5-6, 8; Qu�bec�s Brief at 51. Qu�bec further contends that, in a case where substitutable nonsubject imports affect the U.S. market, the Commission must provide analysis establishing the degree to which likely post-revocation injury is attributable to the nonsubject imports. Qu�bec�s Brief at 51, Qu�bec�s Reply Brief at 5-19.

In Gerald Metals, Inc. v. United States, 132 F.3d 716 (Fed. Cir. 1997), the Commission had conducted an initial investigation wherein it was required, under 19 U.S.C. � 1673d(b)(1), to determine whether a U.S. industry had been materially injured �by reason of� unfairly traded pure magnesium imports from Russia, Ukraine and China. Gerald Metals appealed the determination regarding the Ukrainian product, arguing, inter alia, that the Commission failed to consider adequately the extent to which the injury to the U.S. industry was attributable to certain substitutable, fairly traded imports from Russia. 132 F.3d at 719. The court concluded that:
 

[A] showing that economic harm to domestic industry occurred when [unfairly traded] imports are also on the market is not enough to show that the imports caused a material injury. See United States Steel Group v. United States, 96 F.3d 1352, 1358 (Fed. Cir. 1996) (�[T]o claim that the temporal link between these events proves that they are causally related is � fallacy �.�). An affirmative injury determination requires both (1) present material injury and (2) a finding that the material injury is �by reason of� the subject imports.

132 F.3d at 719.

The Commission and Magcorp both argue that Gerald Metals does not apply to sunset investigations because it construes statutory language that relates only to original investigations. See Transcript of Panel Hearing (Apr. 17, 2002) (�Tr. of Panel Hearing�) at 193-94, 198; Magcorp�s Brief at 47, 49-51. The Commission suggests that the principle enunciated in Gerald Metals is inapplicable to the present matter because it has found herein that the subject and nonsubject imports are not substitutable. See Commission�s Brief at 100. Finally, the Commission and Magcorp further assert that the �unique circumstances� of Gerald Metals preclude its general applicability to other material injury determinations. See Commission�s Brief at 102; Tr. of Panel Hearing at 98, 193-97; Magcorp�s Brief at 50-51.

The original investigation conducted in Gerald Metals was governed, inter alia, by 19 U.S.C. � 1673 which directs the Commission to determine whether a material injury, threat of material injury, or material retardation have occurred �by reason of� unfairly traded goods. 19 U.S.C. � 1673(2) (2000).⁹ The sunset review herein is governed, inter alia, by 19 U.S.C. � 1675a, which directs the Commission to determine whether revocation of an order would be likely to �lead to� continuation or recurrence of material injury. 19 U.S.C. � 1675a(a)(1) (2000). Though these are distinct statutes with differing language, the principle underlying the court�s construction of 19 U.S.C. � 1673 in Gerald Metals, is applicable to interpretation of 19 U.S.C. � 1675a in the present case.

In the original investigation reviewed in Gerald Metals, there were substitutable nonsubject imports on the domestic market during the relevant period whose impact on the U.S. industry had to be considered in order to establish what injury, if any, was attributable to the subject goods. See 132 F.3d at 719-23. In the present sunset review, there is a likelihood of nonsubject imports being present in the U.S. market during the relevant period whose impact on the U.S. industry has to be examined in order to establish what likely injury, if any, is attributable to revocation of the duties being imposed on the subject goods.

It is true that, under the sunset statute, it is revocation of the duties on the subject goods, not the subject goods themselves, that must give rise to the relevant injurious condition. See 19 U.S.C. � 1675a(a)(1). It is also true that, under the sunset statute, it is �likely� impact, not actual or threatened impact, that is considered. See 19 U.S.C. �� 1675a(a), 1675(d)(2)(B) (2000). However, these distinctions are not material to the basic principle.¹⁰ Of both statutes, the plain language mandates that the Commission determine the impact that is attributable to the subject imports, which necessarily means considering the impact of any substitutable nonsubject imports that are on the domestic market during the relevant period.

As noted above, the Commission found that the subject and the nonsubject imports are not substitutable in the present case. See Views at 18-19, 33-34. Therefore, suggests the Commission, Gerald Metals is inapplicable. See Commission�s Brief at 100. This contention necessitates review of whether there is substantial evidence on the record to support the Commission�s finding of non-substitutability. In determining whether there is substantial evidence on the record to support a finding of fact, the Panel must look at both the supporting and the detracting evidence on the record. Universal Camera Corp. v. NLRB, 340 U.S. 474, 487-488 (1951); Gerald Metals, 132 F.3d at 720.

In finding non-substitutability, the Commission concluded that �factors such as price, quality, availability of scrap recycling programs, and the desire to have a North American supplier may limit the full extent to which nonsubject imports are substitutable for U.S. or Canadian products.� Views at 33-34 (relating to alloy), 19 (relating to pure, but omitting the word �full�).

Before looking at the evidence on the record supporting and detracting from the Commission�s non-substitutability finding, it must be clarified that price is not relevant to this substitutability analysis. This analysis is to determine whether third-country nonsubject goods are substitutable with subject goods for the purpose of establishing whether, among other things, the price effects of nonsubject imports must be analyzed separately from the price effects of the subject imports. For this purpose, therefore, it is necessary to determine whether the U.S. market considers nonsubject imports substitutable with subject imports, without regard to price.

The predominant evidence on the record supporting the finding of non-substitutability is contained in purchasers� responses to questionnaires prepared by the Commission. See Purchasers� Questionnaires, Confidential Document (�CD�) 52-67, at IV-10. The purchasers� questionnaires requested product comparisons based on a series of criteria, nine of which are significantly indicative of substitutability.¹¹ See id. Each purchaser was asked to specify pairs of countries whose products it could compare on the basis of the above mentioned-criteria. See id. at IV-1, IV-10. Regarding each country-pair, purchasers specified, for each criterion, whether or not the products were �comparable.�1¹² See id. at IV-10. In addition to direct comparisons of third-country nonsubject goods to Canadian subject goods, the responses also contain comparisons of nonsubject goods to U.S. domestic like product.¹³ See id. The responses included scattered claims of superiority of U.S. or Canadian product over third-country goods under individual criteria. See id. In particular, as the Commission notes in the Views, a few purchasers stated that scrap recycling programs of Canadian producers impact substitutability. Views at 19, 33-34. Some responses also include occasional assertions of superiority of third-country product over U.S. or Canadian goods. See CD at IV-10. A few purchasers� questionnaires also include assertions of tangential reasons to prefer North American suppliers. Views at 19, 33-34. However, although the responses included scattered references to distinctions material to substitutability, taken as a whole, the responses manifest that purchasers saw third-country nonsubject goods as substitutable with subject goods. See CD 52-67.