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2005.115 116 During the 2003-2005 period, subject imports’ gain in market share came largely at the expense of non-subject imports, the market share of which declined from *** percent in 2003 to ***

percent in 2005.117

In interim 2006, however, subject imports’ continued gain in market share was

directly at the expense of the domestic industry, the market share of which was *** percent in interim 2006 compared with *** percent in interim 2005, while non-subject imports’ market share declined only slightly.118 In addition, the ratio of subject imports to domestic CFSP production rose over the POI. 119

For the foregoing reasons, we find, for purposes of the preliminary phase of these investigations, that the volume of subject imports is significant, both in absolute terms and relative to consumption and production in the United States.

C.

Price Effects of the Subject Imports

Section 771(C)(ii) of the Act provides that, in evaluating the price effects of subject imports, the Commission shall consider whether – (I) there has been significant price underselling by the imported merchandise as compared with the price of domestic like products of the United States, and (II) the effect of imports of such merchandise otherwise depresses

115 CR/PR at Table IV-5. In any final phase investigations, we will seek information on the role of nonsubject imports of CFSP in the U.S. market. We invite parties to comment in any final phase investigations on whether the recent decision by the U.S. Court of Appeals for the Federal Circuit, Bratsk Aluminum Smelter v. United States, 444 F.3d 1369 (Fed. Cir. 2006), is applicable to the facts of these investigations. The Commission also invites parties to comment on what additional information the Commission should collect to address the issues raised by the Court and how that information should be collected, and to identify which of the various non-subject sources should be the focus of additional information gathering by the Commission in any final phase investigations.

116 Commissioner Okun does not join the preceding footnote. The U.S. Court of Appeals for the Federal Circuit did not address the application of its mandate in Bratsk Aluminum Smelter v. United States, 444 F.3d 1369 (Fed. Cir. 2006), to preliminary investigations. In that case the Court indicated that, in cases involving commodity products in which imports from non-subject countries are price-competitive and are a significant factor in the U.S. market, in order to establish a causal link between subject imports and material injury the Commission must evaluate whether the non-subject imports would replace subject imports and thereby eliminate the benefit to the domestic industry of an antidumping or countervailing duty order.

The legal standard for preliminary antidumping and countervailing duty determinations requires the Commission to determine, based upon the information available at the time of the preliminary determination, whether there is a reasonable indication that a domestic industry is materially injured or threatened with material injury by reason of the allegedly unfairly traded imports. 19 U.S.C. §§ 1671b(a), 1673b(a) (2000). Thus, she concludes that she must conduct a Bratsk analysis as she would any other type of causation analysis in a preliminary investigation. Based on the information available in these preliminary investigations, Commissioner Okun finds that non-subject imports would not replace subject imports from China, Indonesia and Korea and eliminate the benefit to the domestic industry of an antidumping duty or countervailing duty order on imports from the subject producers. See Separate and Additional Views of Commissioner Deanna Tanner Okun Concerning Bratsk Aluminum v. United States. Commissioner Okun intends to explore this further in any final phase investigations, and invites parties to comment on what additional information the Commission should collect to address the issues raised by the Court and how that information should be collected, and to identify which of the various nonsubject sources should be the focus of additional information gathering by the Commission.

117

CR/PR at Table IV-5.

118 CR/PR at Table IV-5. We recognize that, because demand for CFSP is somewhat seasonal, full-year data may merit greater weight than partial-year data. In any final phase of these investigations, we intend to consider the extent to which seasonality affects the reliability of partial-year import and consumption data.

119 The ratio of subject imports to domestic production increased from *** percent in 2003, to *** percent in 2004, and remained at *** percent in 2005. It was *** percent of domestic production in interim 2005, and *** percent in interim 2006. CR/PR at Table IV-6.

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