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the extent that we had the relevant information, this analysis was included in the Commission’s causation analysis. I will re-examine this in any final phase of these investigations once the Commission has collected further relevant information (e.g., information about the market from purchasers).

II.

Under the Bratsk Replacement/Benefit Test, Non-subject Imports Likely Would Not Negate the Beneficial Effect of an Order on Subject Imports from China

Having found that there is a reasonable basis to determine that an industry in the United States is materially injured by reason of subject imports from China, Indonesia, and Korea I now must assess whether the facts of these investigations trigger a Bratsk analysis under the “replacement/benefit test” interpretation of Bratsk. Based on the record, I conclude that Bratsk is triggered, but that non-subject imports likely would not negate the beneficial effect of the orders on subject imports from China, Korea, and Indonesia.

A.

Bratsk Replacement/Benefit Test

The exact formulation of the Bratsk Court’s test is not clear. According to one part of the

opinion:

{U}nder Gerald Metals, the Commission is required to make a specific causation determination and in that connection to directly address whether non-subject imports would have replaced the subject imports without any beneficial effect on domestic producers.20

Stated this way, the test would require the Commission to analyze replacement/benefit during the period of investigation, i.e., backward looking. The Court also has stated a different formulation that would require the Commission to analyze replacement/benefit in the future, i.e., forward looking:

{T}he Commission has to explain, in a meaningful way, why the non-subject imports would not replace the subject imports and continue to cause injury to the domestic industry.21

It therefore is unclear whether the Court intended to state the same test in different ways, or whether it contemplated that it was establishing two separate criteria.

Based upon my reading of Bratsk, I conclude that I now must assess the likely effectiveness of any import relief vis-a-vis non-subject imports to determine whether non-subject imports would eliminate the beneficial effect of the order on subject imports, in this case orders on China, Indonesia, and Korea.

1.

Triggering Factors

Bratsk requires a two-step analysis. First, the Commission must determine whether Bratsk is triggered based on the facts of the investigation. Second, if it is triggered, then the Commission must consider whether the non-subject imports would have replaced the subject imports and continue to cause injury to the domestic industry.

The Bratsk Court states that “{T}he obligation under Gerald Metals is triggered whenever the antidumping investigation is centered on a commodity product, and price competitive non-subject imports

20

Slip op. at 9.

21

Slip op. at 12.

32

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