that the Commission had “dismissed” Gerald Metals as being factually distinguishable,12 extensively explained its holdings in Gerald Metals and Taiwan Semiconductor,13 and noted that the underlying investigation in Bratsk “revealed the same conditions that triggered the additional causation inquiry in Gerald Metals and Taiwan Semiconductor.”14 Further, the Court noted that
Gerald Metals thus requires the Commission to explain why – notwithstanding the presence and significance of the non-subject imports – it concluded that the subject imports caused material injury to the domestic industry. While there may be support for the Commission’s ultimate determination of material injury in the record here, we find that the Commission did not sufficiently explain its decision in this regard. 15
Therefore, the Court may not have been creating a new extra-statutory causation test, but rather was simply reminding the Commission of its existing obligation under Federal Circuit precedent. In other words, the Bratsk Court’s relatively short discussion of the underlying determination may not have established a new and rigid replacement/benefit test. Rather, the Court may have discussed the triggering factors (i.e., commodity product and price-competitive non-subject imports) and the replacement/benefit factors (i.e., whether non-subject imports would have replaced the subject imports without any beneficial effect on domestic producers)16 as a reminder that the Commission, before it makes an affirmative determination, must satisfy itself that it has not attributed material injury to factors other than subject imports.
The statute requires the Commission to determine whether the domestic industry is “materially injured by reason of” the unfairly traded imports.17 Thus, the Commission must evaluate the effects of the unfairly traded imports on the domestic industry in order to determine if those imports are causing material injury. In most investigations, there are other economic factors that also may be causing injury to the domestic industry. The statute’s legislative history states that the Commission “will consider information which indicates that harm is caused by factors other than less-than-fair-value imports.”18 While the statute is clear that the Commission is not to weigh or prioritize the factors that are independently causing material injury,19 the Commission cannot assign the cause of material injury to factors other than subject imports. Under this interpretation, the reference in Bratsk to “whether non- subject imports would have replaced subject imports without any beneficial effect on domestic producers” could be asking the Commission to interpret “benefit” to mean that if the subject imports are indeed causing harm, then the removal of the unfairly traded imports should “benefit” the domestic industry, but if the removal of the unfairly traded imports would not benefit the domestic industry, the injury must be attributable to other factors. Thus, the Commission must analyze the effects of the unfairly traded imports in a way that enables the Commission to conclude that it has not attributed the effects of other factors to the subject imports.
If this interpretation of Bratsk is correct, then I concur with the Federal Circuit that the Commission is required to identify and assess the competitive effects of subject imports to ensure that they contribute more than “minimally or tangentially to the material harm” of the domestic industry. To
Slip op. at 5. Slip op. at 6-9. Slip op. at 9. Slip op. at 10. Slip op. at 9. 19 U.S.C. § 1673d(b).
Rep. No. 249, 96th Cong., 1st Sess. 46-47 (1979).
Rep. No. 249, 96th Cong., 1st Sess. 74 (1979); H.R. Rep. No. 317, 96th Cong., 1st Sess. 46-47.