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SEPARATE AND ADDITIONAL VIEWS OF COMMISSIONER DEANNA TANNER OKUN CONCERNING BRATSK ALUMINUM V. UNITED STATES

I.

Legal Issues Concerning Bratsk Aluminum Smelter v. United States

In the recent case of Bratsk Aluminum Smelter et al. v. United States, 444 F.3d 1369 (Fed. Cir. 2006) (“Bratsk”), the Court of Appeals for the Federal Circuit reaffirmed that the requisite causal link to subject imports is not demonstrated if such imports contributed only “‘minimally or tangentially to the material harm.’”1 2 Applying that standard to an investigation involving a commodity product, i.e., silicon metal, and the significant presence of non-subject imports, the Court held that the Commission had not sufficiently explained whether non-subject imports simply would have replaced subject imports during the period of investigation had an antidumping order been in place and continued to cause injury to the domestic industry.3

As a threshold matter, it is not immediately clear how the Commission should interpret the Bratsk opinion in terms of its effect on our analysis of causation in Title VII investigations. At a minimum, I can discern at least two possible interpretations which differ substantially: (1) that Bratsk mandates application of an additional test apparently not contemplated by the statute (the so-called “replacement/benefit test”), and (2) that Bratsk is a further development of the causation approach prescribed by Gerald Metals.

A.

Separate Causation Analysis – Replacement/Benefit Test

The statute sets forth specific factors for the Commission to consider in analyzing the volume, price effects and impact of subject imports. 19 U.S.C. § 1677(7). The Uruguay Round Agreements Act Statement of Administrative Action (“SAA”) explains further that in analyzing causation the Commission must examine factors other than subject imports to ensure that it is not attributing injury from these sources to the subject imports, but is not required to isolate the injury caused by other factors from injury caused by unfair imports.4 Beyond this, the statute does not provide any further limitations on how the Commission’s causation analysis shall be conducted.

The Court’s decision, however, states that the Commission must perform an additional “specific” causation analysis in the form of a replacement/benefit test. Using somewhat varying phrasing, the Court stated that the Commission must determine “whether non-subject imports would have replaced subject imports without any beneficial effect on domestic producers,” 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,” and must explain “why the non-subject imports would not replace the subject imports and continue to cause injury to the domestic industry.”5

1 No. 05-1213 (Fed. Cir. Apr. 10, 2006), Slip Op. at 6, quoting Gerald Metals, Inc. v. United States, 132 F.3d 716, 722 (Fed. Cir. 1997). The Commission filed a petition for rehearing en banc, which the Court denied on July 24, 2006. The Court’s mandate was issued on August 7, 2006.

2

3

Commissioner Okun did not participate in the underlying investigation nor the subsequent litigation. Slip Op. at 2, 9-11.

4 H.R. Doc. No. 103-316, Vol. I (1994) at 851-52 (“SAA”); Taiwan Semiconductor Industry Ass’n v. United States, 266 F.3d at 1339, 1345 (Fed. Cir. 2001).

5

Slip op. at 9, 12.

29

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