Slip Op. 10 - 32
UNITED STATES COURT OF INTERNATIONAL TRADE
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MITTAL STEEL POINT LISAS LIMITED, :
Plaintiff, :
v. :
Court No. 02-00756
UNITED STATES, : Before: Senior Judge
Aquilino
Defendant, :
-and-
:
GERDAU AMERISTEEL CORP. et al.,
:
Intervenor-Defendants.
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ORDER
The U.S. Court of Appeals for the Federal Circuit
(“CAFC”) having misread this court’s opinion herein sub nom.
Caribbean Ispat Ltd. v. United States, 29 CIT 329, 366 F.Supp.2d
1300 (2005), to the effect that it “prohibited” the defendant
International Trade Commission (“ITC”) from “considering the
effects of LTFV imports of non-CBERA countries when it assessed
imports from Trinidad and Tobago” [Caribbean Ispat Ltd. v.
United States, 450 F.3d 1336, 1341 (Fed.Cir. 2006)] and having
thereupon vacated this court’s judgment of dismissal and
remanded the matter for the ITC to “make a specific causation
determination and in that connection . . . directly address
Court No. 02-00756 Page 2
whether [other LTFV imports and/or fairly traded imports] would
have replaced [Trinidad and Tobago’s] imports without any
beneficial effect on domestic producers”, id., quoting from
Bratsk Aluminum Smelter v. United States, 444 F.3d 1369, 1373
(Fed.Cir. 2006); and this court having entered an order of
remand in haec verba, 30 CIT 1519 (2006); and the ITC in
compliance with that order having determined that an industry in
the United States is not materially injured or threatened with
material injury by reason of imports of certain wire rod from
Trinidad and Tobago that is sold in the United States at less
than fair value; and this court having affirmed that
determination sub nom. Mittal Steel Point Lisas Ltd. v. United
States, 31 CIT 1041, 495 F.Supp.2d 1374 (2007), and entered an
amended final judgment of dismissal; and the intervenor-
defendants having appealed therefrom and induced the CAFC to
opine, among other things, Mittal Steel Point Lisas Ltd. v.
United States, 542 F.3d 867, 877 (Fed.Cir. 2008), that it does
not regard the decision in Bratsk as requiring the
Commission to presume that producers of non-subject
goods would have replaced the subject goods if the
subject goods had been removed from the market.
Although we stated there, and reaffirm here, that the
Commission has the responsibility to consider the
causal relation between the subject imports and the
injury to the domestic injury, that responsibility
does not translate into a presumption of replacement
without benefit to the domestic industry[]
Court No. 02-00756 Page 3
and also that the “problem may stem from a lack of sufficient
clarity in [its] prior opinion”, 542 F.3d at 879; and the CAFC
having determined to vacate yet again this court’s judgment of
dismissal, notwithstanding the ITC’s “scrupulous attention to
the terms of this court’s remand instructions”, id., and remand
the matter yet again “for further consideration of the material
injury issue in light of [it]s opinion” and also “for further
proceedings with respect to the threat of material injury”, id.;
and the mandate of the CAFC having issued in regard thereto; and
the Clerk of this court having reopened this matter on March 24,
2010; Now therefore, after due deliberation, it is
ORDERED that this matter be, and it hereby is,
remanded to the defendant International Trade Commission, which
may have until June 25, 2010 to attempt to comply with the
CAFC’s reasoning, as set forth in its foregoing, more recent
opinion, and to report to this court any results of this
mandated remand; and it is further hereby
ORDERED that the other parties hereto have until July
30, 2010 to file comments on any such results.
Dated: New York, New York
March 29, 2010
/s/ Thomas J. Aquilino, Jr.
Senior Judge