are a significant factor in the market.”22 Thus, the Bratsk test purportedly is not required in every case, only in cases involving a “commodity product” and where “price competitive non-subject imports are a significant factor in the market.”
The Bratsk Court refers to a “commodity product” as “meaning that it is generally interchangeable regardless of its source.”23 Thus, the Court’s definition of “commodity product” is broad. The second trigger for the Bratsk replacement/benefit test is that price competitive non-subject imports are a significant factor in the U.S. market. On the issue of whether the non-subject imports are “price competitive,” the Bratsk Court refers to the fact that in Gerald Metals the non-subject imports had undersold the domestic product just as the subject imports had.24
If the Commission determines that Bratsk is triggered, the second step in the analysis, assessment of replacement of subject imports by non-subject imports that negates the benefit to the domestic industry, also has two components. First, the non-subject imports must be able to replace the subject imports. In assessing replacement, the Commission should consider not only interchangeability, but the non-subject producers’ capacity to fill any void left by subject imports and whether there exists an incentive to do so.
The second step requires that the non-subject imports must negate the benefit of the order to the domestic industry. In assessing benefit, the Court indicated that the price of non-subject imports would be an important consideration in this analysis as non-subject imports may not be priced low enough to negate the benefit to the domestic industry (i.e., “the price of the non-subject imports may be sufficiently above the subject imports such that the elimination of the subject imports would have benefitted the domestic industry”).25 The Court’s decision does not specify how complete the replacement of subject imports by non-subject imports must be, or how much of the benefit to the domestic industry must be negated, to require a negative determination.
The petitioner asserts that CFSP is a commodity product for purposes of Bratsk analysis.26 While respondents assert that CFSP may not be a commodity, subject imports, non-subject imports, and the domestic like product are broadly interchangeable within each product type, e.g. sheets.27 Further, questionnaire responses from both producers and importers indicate that the domestic like product, subject imports, and non-subject imports are always or frequently interchangeable.28 Thus, based on the information available in these preliminary investigations, I find that the domestic like product, subject imports, and non-subject imports of CFSP are generally commodity products.
With respect to the second factor, whether price competitive non-subject imports are a significant factor in the U.S. market, the record in these preliminary investigations indicates that non-subject imports
Slip op. at 11.
Slip op. at 2.
Slip op. at 7.
Slip op. at 12.
Petitioners’ postconference brief, exhibit 1 at 8.
27 Korean respondents’ postconference brief, exhibit A at 8, and Chinese respondents postconference brief responses to questions from Commission staff at 3.
CR/PR at Table II-1.