Mittal Steel Point Lisas Ltd. v. U.S.

• Decision Date: 06 July 2007
• Docket Number: Court No. 02-00756.,Slip Op. 07-106.
• Citation: 495 F.Supp.2d 1374
• Parties: MITTAL STEEL POINT LISAS LIMITED, Plaintiff, v. UNITED STATES, Defendant, and Gerdau Ameristeel Corp. et al., Intervenor-Defendants.
• Court: U.S. Court of International Trade

Page 1374

495 F.Supp.2d 1374

MITTAL STEEL POINT LISAS LIMITED, Plaintiff, v. UNITED STATES, Defendant, and Gerdau Ameristeel Corp. et al., Intervenor-Defendants.

Slip Op. 07-106.

Court No. 02-00756.

United States Court of International Trade.

July 6, 2007.

Steptoe & Johnson LLP (Mark A. Moran, Matthew S. Yeo and Evangeline D. Keenan), Washington, DC, for Plaintiff.

James M. Lyons, General Counsel, Andrea C. Casson, Assistant General Counsel, and Jonathon J. Englar, U.S. International Trade Commission, for Defendant.

Kelley Drye Collier Shannon (Paul C. Rosenthal, Kathleen W. Cannon and R. Alan Luberda), Washington, DC, for Intervenor-Defendants.

Memorandum

AQUILINO, Senior Judge.

Before this court are the January 16, 2007 Views of the U.S. International Trade Commission ("ITC")¹ issued pursuant to the order of remand filed herein, 30 CIT ___, Slip Op. 06-151 (Oct. 13, 2006), in conformity with the mandate of the U.S. Court of Appeals for the Federal Circuit ("CAFC") that the commissioners

"make a specific causation determination and in that connection ... directly address whether [other LTFV imports and/or fairly traded imports] would have replaced [Trinidad and Tobago's] imports without any beneficial effect on domestic producers."

Caribbean Ispat Ltd. v. United States, 450 F.3d 1336, 1341 (Fed.Cir.2006), quoting from Bratsk Aluminium Smelter v. United States, 444 F.3d 1369, 1375 (Fed.Cir. 2006). These Views report that,

[u]pon consideration of the court's remand instructions, we determine ... that an industry in the United States is not materially injured or threatened with material injury by reason of imports of certain wire rod from Trinidad and Tobago that is sold in the United States at less than fair value ("LTFV").²

* * * * * *

² Commissioners Stephen Koplan and Charlotte R. Lane dissent, but join in Sections I, II and III of these remand views. As further set forth in their Separate and Dissenting Views, they find that an industry in the United States is materially injured by reason of subject imports from Trinidad and Tobago.

Counsel for the U.S. domestic industry respond herein to these Views, in part, as follows:

In sum, the Commission has clearly indicated its belief that the appellate court's holdings in both Bratsk and Caribbean Ispat are contrary to law, a conclusion with which the domestic producers concur. Despite or perhaps because of this disagreement, the Commission has adopted an extreme interpretation of the Court's holding, including reliance on a commodity-product finding the appellate court did not make, reliance on a rebuttable presumption the appellate court did not require, cumulation of all imports in its replacement analysis, a presumption that replacement of imports automatically negated benefits, and finally extension of the replacement/benefit test to the threat context. The result of this extreme interpretation of the Bratsk decision was to deprive the domestic industry of an antidumping duty order against Trinidad that the Commission believes should lawfully remain in effect.

Defendants-Intervenors' Comments, p. 26.

This court accepts this response as a plea for relief from the above-quoted controlling viewpoint, but its consideration thereof is circumscribed by the CAFC's specific mandate. See, e.g., Briggs v. Pennsylvania R.R. Co., 334 U.S. 304, 306, 68 S.Ct. 1039, 92 L.Ed. 1403 (1948), citing Himely v. Rose, 9 U.S. (5 Cranch) 313, 3 L.Ed. 111 (1809).

I

The ITC is required to make a final determination of whether a domestic industry is materially injured, or is threatened with material injury, by reason of imports, or sales (or likelihood of sales) for importation. 19 U.S.C. § 1673d(b)(1). It is well-established that an affirmative determination entails two elements: present material injury, or threat thereof, and a finding that that material injury is "by reason of subject imports. See, e.g., Gerald Metals, Inc. v. United States, 132 F.3d 716, 719 (Fed.Cir.1997); Chaparral Steel Co. v. United States, 901 F.2d 1097, 1104 (Fed.Cir.1990); American Spring Wire Corp. v. United States, 8 CIT 20, 22-23, 590 F.Supp. 1273, 1276 (1984), aff'd sub nom. Armco, Inc. v. United States, 760 F.2d 249 (Fed.Cir.1985).² In making such determinations, the Commission is required by 19 U.S.C. § 1677(7)(B)(i) to consider

(I) the volume of imports of the subject merchandise,

(II) the effect of imports of that merchandise on prices in the United States for domestic like products, and

(III) the impact of imports of such merchandise on domestic producers of domestic like products....

Additionally, it "may consider such other economic factors as are relevant to the determination regarding whether there is material injury by reason of imports." 19 U.S.C. § 1677(7)(B)(ii).

The subject imports at issue in this case are steel wire rods produced in RTT, a designated beneficiary country under the Caribbean Basin Economic Recovery Act ("CBERA"). That act, the purpose of which is to "promote economic revitalization and facilitate expansion of economic opportunities in the Caribbean Basin region," Pub.L. No. 98-67, 97 Stat. 384 (Aug. 5, 1983), modifies otherwise applicable 19 U.S.C. § 1677(7)(G)(i), which requires the ITC to "cumulatively assess the volume and effect of imports of the subject merchandise from all countries" with respect to which petitions were filed or investigations initiated on the same day and such imports compete with each other and with domestic like products in the U.S. market. In making an injury determination with regard to imports from a CBERA designated nation, however, the Commission may assess the volume and effect of imports cumulated only with imports of the subject merchandise from other such designated beneficiary countries. See 19 U.S.C. § 1677(7)(G)(ii)(III).

A

In its original motion for judgment upon the agency record, the plaintiff claimed that the ITC majority failed to "ensure that imports from Trinidad and Tobago by themselves made a material contribution to any injury to the domestic industry" and that the Commission "failed to explain how it ensured that it was not attributing ... injury from th[o]se other known and potential sources of injury (e.g., other subject and non-subject imports)". The plaintiff proposed that this court order the defendant to

provide an adequate explanation as to how it ensured that it did not attribute the effects of other subject and nonsubject imports to imports from the Republic of Trinidad and Tobago[.]

According to the Uruguay Round Agreements Act Statement of Administrative Action ("URAA-SAA"), in performing its "by reason of" analysis, the ITC should

examine all relevant evidence, including any known factors, other than dumped [or subsidized] subject imports which at the same time are injuring the domestic industry[.]

Caribbean Ispat Ltd. v. United States, 29 CIT ___, ___, 366 F.Supp.2d 1300, 1305 (2005), quoting Defendant's Opposition Brief, p. 11, quoting H.R. Doc. No. 103-316, vol. 1, p. 851 (1994) (brackets in original). On plaintiff's subsequent appeal, however, the CAFC opined that reliance on this text read

too much into the URAA-SAA's brief discussion of causation. First, the passage does not speak to the unique circumstances of CBERA or other noncumulation provisions. Second, we do not regard the above-quoted passage as Congress's comprehensive and exclusive interpretation of section 1677(7)(B)(ii). The passage does not specifically reference that statute, and the plain language of section 1677(7)(B)(ii) suggests a broad grant of discretion in materiality determinations that allows the Commission to "consider such other economic factors as are relevant." ... In the present case, the Commission had authority to treat LTFV imports from non-CBERA countries as an "other economic factor," just as the Commission ordinarily treats fairly traded imports as an "other economic factor" in dumping investigations that do not involve CBERA countries.

Caribbean Ispat Ltd. v. United States, 450 F.3d at 1339. Next, the CAFC addressed a contention by the plaintiff/appellant that legal error was committed by the ITC because it did not evaluate the effect of RTT's imports in light of other LTFV imports, and its findings did not discuss the effect of fairly-traded imports. The CAFC concurred with the contention — in the light of its then-recent decision in Bratsk Aluminium Smelter v. United States, supra, which explained that,

[w]here commodity products are at issue and fairly traded, price competitive, nonsubject imports are in the market, the Commission must explain why the elimination of subject imports would benefit the domestic industry instead of resulting in the non-subject imports' replacement of the subject imports' market share without any beneficial impact on domestic producers.

450 F.3d at 1341, quoting 444 F.3d at 1373. Whereupon the CAFC's above-quoted mandate to this court and the Commission issued.

II

On remand, the ITC again finds that the "volume of subject imports ... is significant"³; that

there has been significant price underselling by subject imports from Trinidad and Tobago as compared with the price of domestic like product, and that the effect of the subject imports was to prevent price increases which otherwise would have occurred, to a significant degree[;]⁴

that the subject imports from RTT "alone were having a significant adverse impact on the domestic industry"⁵; and that there was "a likelihood of continued imminent injury to the domestic industry from subject imports from Trinidad and Tobago"⁶. Nonetheless, two commissioners arrived at a negative determination "solely as a consequence of [their] application of the additional `replacement/benefit' analysis set forth by the [CAFC]".⁷

A

In applying the Bratsk analysis as laid out by the CAFC, at least those two commissioners take the language "the Commission must explain why the elimination of subject imports would benefit the...