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Such a “replacement/benefit” test is not among the statutory factors Congress has required the Commission to consider. The statutory scheme contemplates that subject imports may remain in the U.S. market after an order is imposed and even that the industry afterward may continue to suffer material injury.6 Thus, the decision in Bratsk misconstrues the purpose of the antidumping and countervailing duty laws, which is not to bar subject imports from the U.S. market or award subject import market share to U.S. producers, but instead to “level[] competitive conditions” by imposing a duty on subject imports at a level to offset the amount of dumping or subsidization and thus enabling the industry to compete against fairly traded imports.7 It is not uncommon for subject imports to remain in the U.S. market in significant quantities even after the issuance of an antidumping or countervailing duty order, as shown by the hundreds of millions of dollars in antidumping and countervailing duties collected every year.

Bratsk, therefore, appears to require that the Commission apply an extra-statutory causation test with respect to non-subject imports and to determine that the domestic industry will benefit from the antidumping duty or countervailing duty order. I respectfully disagree with the Court that such a causation analysis is legally required.8 However, given that the Federal Circuit’s mandate has now been issued and the decision has become binding precedent, I discuss infra my interpretation of the Bratsk standard and perform the analysis based on the record in these preliminary investigations.9

B.

Gerald Metals Causation Analysis

Alternatively, I also find support for interpreting the Bratsk decision to be reminding the Commission of its obligation under Gerald Metals that the Commission may not satisfy the “by reason of” causation requirement by showing that subject imports contributed only “minimally or tangentially to the material harm.”10

This may be a reasonable interpretation of the Bratsk decision as the Court noted that the “sole point of contention in this appeal is whether the Commission established that the injury to the domestic industry was ‘by reason of’ the subject imports.”11 In explaining its conclusion, the Court emphasized

6 SAA at 851-52, 885, 889-90. The Commission has indicated that the possibility that an order might not be effective does not preclude a finding of present material injury. The Commission also has concluded that the statute does not provide for the Commission to perform an additional injury test to predict the future effectiveness of import relief:

{W}e note that nothing in the statute or case law requires (or allows) us to consider the likely effectiveness of a dumping order in making our injury determination. The possibility that non- subject imports will increase in the future after an antidumping order is imposed is . . . not relevant to our analysis of whether subject imports are currently materially injuring the industry.

Wooden Bedroom Furniture From China, Inv. No. 731-TA-1058 (Final), USITC Pub. 3743, n.222 (Dec. 2004). Huaiyin Foreign Trade Corp. v. United States, 322 F.3d 1369, 1380 (Fed. Cir. 2003). 7

8 The Commission set out in detail its objections to the Court’s decision in its petition for rehearing to the Federal Circuit. See Petition for Rehearing en Banc (May 25, 2006), Bratsk Aluminum Smelter et al. v. United States, 444 F.3d 1369 (Fed. Cir. 2006)(No. 05-1213) (petition denied July 24, 2006). As noted above, I did not participate in that proceeding.

9 While it is not an issue in these investigations, it is unclear whether the Court intended its approach to apply to analyses of threat of material injury, or only to analyses of present material injury. Given that one of the Court’s formulations of the standard is framed in terms of likely future events, I have interpreted the Court’s decision as applying both to the context of present injury and threat of injury.

10

Gerald Metals, 132 F.3d at 722.

11

Slip op. at 5.

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