Carbon and Certain Alloy Steel Wire Rod

from Trinidad and Tobago

Investigation No. 731-TA-961 (Final)(Second Remand)

Publication 4170 June 2010

Washington, DC 20436
U.S. International Trade Commission

COMMISSIONERS

Deanna Tanner Okun, Chairman

Charlotte R. Lane

Daniel R. Pearson

Shara L. Aranoff

Irving A. Williamson

Dean A. Pinkert

Robert B. Koopman

Acting Director of Operations

Staff assigned

Marc Bernstein, Attorney

Mary Messer, Investigator

Douglas Corkran, Supervisor Investigator

Address all communications to

Secretary to the Commission

United States International Trade Commission

Washington, DC 20436
U.S. International Trade Commission

Washington, DC 20436

www.usitc.gov

Carbon and Certain Alloy Steel Wire Rod

from Trinidad and Tobago

Investigation No. 731-TA-961 (Final)(Second Remand)

Publication 4170 June 2010
 
CONTENTS

Page

Views of the Commission ......................................................... 1

Dissenting Views of Chairman Deanna Tanner Okun and Commissioner Daniel R. Pearson

Concerning Subject Imports from Trinidad and Tobago . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Dissenting Views of Commissioner Dean A. Pinkert . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Note.–Information that would reveal confidential operations of individual concerns may not be published

and therefore has been deleted from this publication. Such deletions are indicated by asterisks.
 
VIEWS OF THE COMMISSION

On March 29, 2010, the United States Court of International Trade issued an order directing the

Commission to conduct a second remand proceeding in the original final phase antidumping investigation

involving carbon and certain alloy steel wire rod (“wire rod”) from Trinidad and Tobago.1

 The remand is

necessitated by the September 2008 Federal Circuit decision in the Mittal Steel Point Lisas litigation

(“Mittal Steel”) vacating the Commission’s determination on first remand.2

 In this second remand

proceeding, we determine that an industry in the United States is materially injured by reason of imports

of wire rod from Trinidad and Tobago that are sold in the United States at less than fair value (“LTFV”).3

I. BACKGROUND

In October 2002, the Commission determined that a domestic industry was materially injured by

reason of imports of wire rod from Trinidad and Tobago that were sold in the United States at LTFV.4

Caribbean Ispat Ltd., a Trinidadian producer and exporter of wire rod subsequently renamed Mittal Steel

Point Lisas Ltd. and now known as Arcelor Mittal Point Lisas Ltd., (“AMPL”), initiated a judicial action

to review the Commission’s determination. The Court of International Trade affirmed the Commission’s

determination.5

 The Federal Circuit, however, vacated and remanded in Caribbean Ispat.6 It ruled: (1)

that the Commission acted contrary to law by failing to consider in its causation analysis concerning

subject imports from Trinidad and Tobago the impact of imports from other subject countries which the

Commission was statutorily precluded from cumulating with the Trinidadian imports in light of the

Caribbean Basin Economic Recovery Act (“CBERA”), and (2) that the Commission’s causation analysis

did not satisfy the requirements in Bratsk Aluminum Smelter v. United States7

 applicable when

“commodity products” are at issue and price-competitive nonsubject imports are present in the market. 

The Federal Circuit remanded the matter for further consideration in light of its opinion. Accordingly, the

Court of International Trade remanded the matter to the Commission.

 1 Mittal Steel Point Lisas Ltd. v. United States, Slip Op. 10-32 (Ct. Int’l Trade March 29, 2010).

 2 Mittal Steel Point Lisas Ltd. v. United States, 542 F.3d 867 (Fed. Cir. 2008). 

 3 Chairman Deanna Tanner Okun, Commissioner Daniel R. Pearson, and Commissioner Dean A. Pinkert

determine that an industry in the United States is not materially injured or threatened with material injury by reason

of imports of wire rod from Trinidad and Tobago sold in the United States at LTFV. See Dissenting Views of

Chairman Deanna Tanner Okun and Commissioner Daniel R. Pearson; Dissenting Views of Commissioner Dean A.

Pinkert. They join sections I and II of this opinion, except as indicated.

 4 Carbon and Certain Alloy Steel Wire Rod from Brazil, Canada, Germany, Indonesia, Mexico, Moldova,

Trinidad and Tobago, Turkey, and Ukraine, Inv. Nos. 701-TA-417-421, 731-TA-953, 954, 956-959, 961, and 962

(Final), USITC Pub. 3546 at 36-38 (Oct. 2002) (“Original Determination”). For purposes of the determination on

subject imports from Trinidad and Tobago, imports from Trinidad and Tobago were not eligible for cumulation with

those from any other subject country under the cumulation exception applicable to beneficiary countries under the

Carribean Basin Economic Recovery Act. See 19 U.S.C. § 1677(7)(G)(ii)(III). Commissioner Okun reached a

negative determination with respect to subject imports from Trinidad and Tobago.

 5 Caribbean Ispat Ltd. v. United States, 366 F. Supp.2d 1300 (Ct. Int’l Trade 2005). 

 6 Caribbean Ispat Ltd. v. United States, 450 F.3d 1336 (Fed. Cir. 2006).

 7 444 F.3d 1369 (Fed. Cir. 2006).

1
In January 2007, the Commission reached a negative determination on remand by a vote of 3-2.8

The Commission opinion was joined by Commissioners Aranoff and Hillman. They reached a negative

determination solely by application of the “replacement/benefit” analysis they perceived was mandated by

the Federal Circuit opinions in Bratsk and Caribbean Ispat. Commissioner Okun reissued the negative

determination she made during the original investigation. Commissioners Koplan and Lane found that

because wire rod was not a commodity product, application of the “replacement/benefit” analysis was

unnecessary; they reached an affirmative determination. Commissioner Pearson did not participate.9

The Court of International Trade affirmed the remand determination.10 The Federal Circuit again

vacated and remanded in a decision issued in September 2008.11 In Mittal Steel, the Federal Circuit found

three deficiencies in the Commission opinion on remand. These concerned: (1) the Commission’s

construction and application of the causation standard articulated in Bratsk and Caribbean Ispat with

respect to its analysis of current material injury; (2) the Commission’s analysis of whether wire rod was a

“commodity product;” and (3) the Commission’s construction and application of the causation standard

with respect to its analysis of threat of material injury. On March 29, 2010, the Court of International

Trade issued an order directing the Commission to comply with the Federal Circuit’s opinion.

The Commission published a notice in the Federal Register instituting remand proceedings. 

While the Commission did not reopen the record, it invited parties to file comments.12 Gerdau Ameristeel

Corp. (“Gerdau”), a successor to one of the petitioning companies, and AMPL filed comments.13

The litigation pertaining to the Commission’s determination on wire rod from Trinidad and

Tobago has not concerned the Commission’s findings, analysis, or conclusions concerning the issues of

domestic like product, domestic industry, negligibility, cumulation, and conditions of competition.14 All

Commissioners adopt or reaffirm these findings for purposes of this second remand determination.15 In

particular, the discussion of conditions of competition in the original determination and the first remand

 8 Carbon and Certain Alloy Steel Wire Rod from Trinidad and Tobago, Inv. No. 731-TA-961 (Final) (Remand),

USITC Pub. 3903 at 1 (Jan. 2007) (“First Remand Determination”).

 9 Commissioners Aranoff, Lane, and Pearson had not participated in the original investigation.

 10 Mittal Steel Point Lisas Ltd. v. United States, 495 F. Supp.2d 1374 (Ct. Int’l Trade 2007).

 11 Mittal Steel Point Lisas Ltd. v. United States, 542 F.3d 867 (Fed. Cir. 2008).

 12 75 Fed. Reg. 21658 (Apr. 26, 2010).

 13 AMPL did not address the Mittal decision or provide substantive comments but merely referred to its

comments in the first remand.

 14 See Original Determination, USITC Pub. 3546 at 6-12 (domestic like product), 13-15 (domestic industry), 16

(finding subject imports from Trinidad and Tobago not negligible), 18 (finding that, for determination on Trinidad

and Tobago, those imports must be considered separately because of CBERA exception to cumulation), 23-26

(conditions of competition).

 15 Chairman Okun reaffirms the findings she made on these issues in the original determination. Commissioner

Aranoff and Commissioner Lane adopted these findings in the first remand determination, and do so again here, as

elaborated upon or incorporated in this second remand determination. Commissioner Pearson, Commissioner

Williamson, and Commissioner Pinkert either were not members of the Commission at the time of the prior

determinations, or did not participate in those determinations. They also adopt the findings on these issues from the

original determination, as elaborated upon or incorporated in this second remand determination.

2
determination provide essential context to the discussion in part III of the views and should be read

together to understand fully the Commission’s analysis.16 17

II. LEGAL STANDARD

In antidumping or countervailing duty investigations, the Commission determines whether an

industry in the United States is materially injured or threatened with material injury by reason of the

imports under investigation.18 In making this determination, the Commission must consider the volume of

subject imports, their effect on prices for the domestic like product, and their impact on domestic

producers of the domestic like product, but only in the context of U.S. production operations.19 The statute

defines “material injury” as “harm which is not inconsequential, immaterial, or unimportant.”20 In

assessing whether the domestic industry is materially injured by reason of subject imports, we consider all

relevant economic factors that bear on the state of the industry in the United States.21 No single factor is

dispositive, and all relevant factors are considered “within the context of the business cycle and conditions

of competition that are distinctive to the affected industry.”22

Although the statute requires the Commission to determine whether the domestic industry is

“materially injured by reason of” unfairly traded imports,23 it does not define the phrase “by reason of,”

indicating that this aspect of the injury analysis is left to the Commission’s reasonable exercise of its

discretion.24 In identifying a causal link, if any, between subject imports and material injury to the

domestic industry, the Commission examines the facts of record that relate to the significance of the

volume and price effects of the subject imports and any impact of those imports on the condition of the

domestic industry. This evaluation under the “by reason of” standard must ensure that subject imports are

more than a minimal or tangential cause of injury and that there is a sufficient causal, not merely a

temporal, nexus between subject imports and material injury.25

 16 Chairman Okun and Commissioner Pearson rely on the discussion of conditions of competition in the original

determination and do not join Part III of these views. See their dissenting opinion.

 17 Commissioner Pinkert relies on the discussion of conditions of competition in the original determination and

does not join Part III of these views.

 18 19 U.S.C. §§ 1671d(b)(1)(A), 1673d(b)(1)(A).

 19 19 U.S.C. § 1677(7)(B)( i). The Commission “may consider such other economic factors as are relevant to the

determination” but shall “identify each {such} factor ... {a}nd explain in full its relevance to the determination.” 

19 U.S.C. § 1677(7)(B).

 20 19 U.S.C. § 1677(7)(A).

 21 19 U.S.C. § 1677(7)(C)(iii).

 22 19 U.S.C. § 1677(7)(C)(iii).

 23 19 U.S.C. §§ 1671b(a), 1673b(a).

 24 Angus Chemical Co. v. United States, 140 F.3d 1478, 1484-85 (Fed. Cir. 1998) (“{T}he statute does not

‘compel the commissioners’ to employ {a particular methodology}.”), aff’g 944 F. Supp. 943, 951 (Ct. Int’l Trade

1996).

 25 The Federal Circuit, in addressing the causation standard of the statute, observed that “{a}s long as its effects

are not merely incidental, tangential, or trivial, the foreign product sold at less than fair value meets the causation

requirement.” Nippon Steel Corp. v. USITC, 345 F.3d 1379, 1384 (Fed. Cir. 2003). The Mittal Steel decision

further ratified this. There the Federal Circuit, quoting Gerald Metals, Inc. v. United States, 132 F.3d 716, 722 (Fed.

(continued...)

3
In many investigations, there are other economic factors at work, some or all of which may also be

having adverse effects on the domestic industry. Such economic factors might include nonsubject imports;

changes in technology, demand, or consumer tastes; competition among domestic producers; or

management decisions by domestic producers. The legislative history explains that the Commission must

examine factors other than subject imports to ensure that it is not attributing injury from other factors to the

subject imports, thereby inflating an otherwise tangential cause of injury into one that satisfies the

statutory material injury threshold.26 In performing its examination, however, the Commission need not

isolate the injury caused by other factors from injury caused by unfairly traded imports.27 Nor does the “by

reason of” standard require that unfairly traded imports be the “principal” cause of injury or contemplate

that injury from unfairly traded imports be weighed against other factors, such as nonsubject imports,

which may be contributing to overall injury to an industry.28 It is clear that the existence of injury caused

by other factors does not compel a negative determination.29

Assessment of whether material injury to the domestic industry is “by reason of” subject imports

“does not require the Commission to address the causation issue in any particular way” as long as “the

injury to the domestic industry can reasonably be attributed to the subject imports” and the Commission

 25(...continued)

Cir. 1997), stated that “this court requires evidence in the record ‘to show that the harm occurred “by reason of” the

LTFV imports, not by reason of a minimal or tangential contribution to material harm caused by LTFV goods.’” 345

F.3d at 1384. See also Nippon Steel Corp. v. United States, 458 F.3d 1345, 1357 (Fed. Cir. 2006); Taiwan

Semiconductor Industry Ass’n v. USITC, 266 F.3d 1339, 1345 (Fed. Cir. 2001).

 26 Statement of Administrative Action (“SAA”) on Uruguay Round Agreements Act (“URAA”), H.R. Rep. 103-

316, Vol. I at 851-52 (1994) (“{T}he Commission must examine other factors to ensure that it is not attributing

injury from other sources to the subject imports.”); S. Rep. 96-249 at 75 (1979) (the Commission “will consider

information which indicates that harm is caused by factors other than less-than-fair-value imports.”); H.R. Rep. 96-

317 at 47 (1979) (“in examining the overall injury being experienced by a domestic industry, the ITC will take into

account evidence presented to it which demonstrates that the harm attributed by the petitioner to the subsidized or

dumped imports is attributable to such other factors;” those factors include “the volume and prices of nonsubsidized

imports or imports sold at fair value, contraction in demand or changes in patterns of consumption, trade restrictive

practices of and competition between the foreign and domestic producers, developments in technology and the

export performance and productivity of the domestic industry”); accord Mittal Steel, 542 F.3d at 877.

 27 SAA at 851-52 (“{T}he Commission need not isolate the injury caused by other factors from injury caused by

unfair imports.”); Taiwan Semiconductor Industry Ass’n v. USITC, 266 F.3d 1339, 1345 (Fed. Cir. 2001) (“{T}he

Commission need not isolate the injury caused by other factors from injury caused by unfair imports ... . Rather, the

Commission must examine other factors to ensure that it is not attributing injury from other sources to the subject

imports.” (emphasis in original)); Asociacion de Productores de Salmon y Trucha de Chile AG v. United States, 180

F. Supp. 2d 1360, 1375 (Ct. Int’l Trade 2002) (“{t}he Commission is not required to isolate the effects of subject

imports from other factors contributing to injury” or make “bright-line distinctions” between the effects of subject

imports and other causes.); see also Softwood Lumber from Canada, Inv. Nos. 701-TA-414 and 731-TA-928

(Remand), USITC Pub. 3658 at 100-01 (Dec. 2003) (Commission recognized that “{i}f an alleged other factor is

found not to have or threaten to have injurious effects to the domestic industry, i.e., it is not an ‘other causal factor,’

then there is nothing to further examine regarding attribution to injury”), citing Gerald Metals, Inc. v. United States,

132 F.3d 716, 722 (Fed. Cir. 1997) (the statute “does not suggest that an importer of LTFV goods can escape

countervailing duties by finding some tangential or minor cause unrelated to the LTFV goods that contributed to the

harmful effects on domestic market prices.”). 

 28 S. Rep. 96-249 at 74-75; H.R. Rep. 96-317 at 47.

 29 See Nippon Steel Corp., 345 F.3d at 1381 (“an affirmative material-injury determination under the statute

requires no more than a substantial-factor showing. That is, the ‘dumping’ need not be the sole or principal cause of

injury.”).

4
“ensure{s} that it is not attributing injury from other sources to the subject imports.”30 31 Indeed, the

Federal Circuit has examined and affirmed various Commission methodologies and has disavowed “rigid

adherence to a specific formula.”32

In Mittal Steel, as in Gerald Metals and Bratsk, the Federal Circuit focused on the presence in the

market of significant volumes of price-competitive imports from nonsubject sources as the relevant “other

factor.”33 The Commission initially interpreted the Federal Circuit’s guidance in Bratsk as requiring it to

apply a particular additional methodology following its finding of material injury in cases involving

commodity products and a significant market presence of price-competitive nonsubject imports.34 The

additional “replacement/benefit” test looked at whether nonsubject imports might have replaced subject

imports without any benefit to the U.S. industry. The Commission applied that specific additional test in

subsequent cases, including the Carbon and Certain Alloy Steel Wire Rod from Trinidad and Tobago case

that underlies the Mittal Steel litigation.

Mittal Steel clarifies that the Commission’s interpretation of Bratsk was too rigid and makes clear

that the Federal Circuit does not require the Commission to apply an additional test nor any one specific

methodology; instead, the court requires the Commission to have “evidence in the record ‘to show that the

harm occurred ‘by reason of’ the LTFV imports,’” and requires that the Commission not attribute injury

from nonsubject imports or other factors to subject imports.35 Accordingly, in our determinations since

 30 Mittal Steel, 542 F.3d at 877-78; see also id. at 873 (“While the Commission may not enter an affirmative

determination unless it finds that a domestic industry is materially injured ‘by reason of’ subject imports, the

Commission is not required to follow a single methodology for making that determination . . . . {and has} broad

discretion with respect to its choice of methodology.”) citing United States Steel Group v. United States, 96 F.3d

1352, 1362 (Fed. Cir. 1996) and S. Rep. 96-249 at 75.

 31 Commissioner Pinkert does not join this paragraph or the remainder of this opinion. As explained in his

dissent, he has made a negative determination. See Dissenting Views of Commissioner Dean A. Pinkert.

Commissioner Pinkert points out that the Federal Circuit, in Bratsk, 444 F.3d 1369, and Mittal, held that the

Commission is required, in certain circumstances when considering present material injury, to undertake a particular

kind of analysis of nonsubject imports, albeit without reliance on presumptions or rigid formulas. Mittal explains as

follows:

What Bratsk held is that “where commodity products are at issue and fairly traded, price-competitive,

nonsubject imports are in the market,” the Commission would not fulfill its obligation to consider an

important aspect of the problem if it failed to consider whether nonsubject or non-LTFV imports would

have replaced LTFV subject imports during the period of investigation without a continuing benefit to the

domestic industry. 444 F.3d at 1369. Under those circumstances, Bratsk requires the Commission to

consider whether replacement of the LTFV subject imports might have occurred during the period of

investigation, and it requires the Commission to provide an explanation of its conclusion with respect to

that factor.

542 F.3d at 878.

 32 Nucor Corp. v. United States, 414 F.3d 1331, 1336, 1341 (Fed. Cir. 2005); see also Mittal Steel, 542 F.3d at

879 (“Bratsk did not read into the antidumping statute a Procrustean formula for determining whether a domestic

injury was ‘by reason’ of subject imports.”).

 33 Undisturbed findings in Caribbean Ispat made clear that, for purposes of this investigation, “nonsubject”

imports meant not merely those imports not subject to investigation, but also encompassed dumped and subsidized

imports simultaneously subject to investigation but not eligible for cumulation with subject imports from Trinidad

and Tobago because of CBERA. See Caribbean Ispat, 450 F.3d at 1339-41.

 34 Mittal Steel, 542 F.3d at 875-79.

 35 Mittal Steel, 542 F.3d at 873 (quoting from Gerald Metals, 132 F.3d at 722), 875-79 & n.2 (recognizing the

(continued...)

5
spring 2009, we have not considered ourselves required to apply the replacement/benefit test that was

included in Commission opinions immediately subsequent to Bratsk.

36 For that reason, we do not apply

such an analysis here.

Instead, we construe the progression of Gerald Metals, Bratsk, and Mittal Steel to clarify that, in

cases involving commodity products where price-competitive nonsubject imports are a significant factor in

the U.S. market, the Court will require the Commission to give full consideration, with adequate

explanation, to non-attribution issues when it performs its causation analysis.37 38 In this instance, that

analysis occurs in numerous places throughout part III of the opinion.

The question of whether the material injury threshold for subject imports is satisfied

notwithstanding any injury from other factors is factual, subject to review under the substantial evidence

standard. Congress has delegated this factual finding to the Commission because of the agency’s

institutional expertise in resolving injury issues.39 40

III. MATERIAL INJURY BY REASON OF SUBJECT IMPORTS FROM TRINIDAD AND

TOBAGO

A. Volume of Subject Imports

Section 771(7)(C)(I) of the Tariff Act of 1930, as amended (“the Act”) provides that the

“Commission shall consider whether the volume of imports of the merchandise, or any increase in that

 35(...continued)

Commission’s alternative interpretation of Bratsk as a reminder to conduct a non-attribution analysis).

 36 See, e.g., Welded Stainless Steel Pressure Pipe from China, Inv. Nos. 701-TA-454, 731-TA-1144 (Final),

USITC Pub. 4064 at 14 (March 2009). But see footnote 31 with respect to Commissioner Pinkert’s causation

analysis.

 37 Commissioner Lane also refers to her dissenting views in Polyethylene Terephthalate Film, Sheet, and Strip

from Brazil, China, Thailand, and the United Arab Emirates, Inv. Nos. 731-TA-1131-1134 (Final), USITC Pub.

4040 (Oct. 2008), for further discussion of Mittal Steel.

 38 To that end, after the Federal Circuit issued its decision in Bratsk, the Commission began to present published

information or send out information requests in final phase investigations to producers in nonsubject countries that

accounted for substantial shares of U.S. imports of subject merchandise (if, in fact, there were large nonsubject

import suppliers). In order to provide a more complete record for the Commission’s causation analysis, these

requests typically seek information on capacity, production, and shipments of the product under investigation in the

major source countries that export to the United States. We did not make such requests in the original investigation

that gave rise to this remand (which preceded Bratsk) and were unable to do so in the first remand proceeding

because of insufficient time. See First Remand Determination, USITC Pub. 3903 at 2-3. Because the record of this

investigation contains extensive information about the industries in the other countries subject to investigation, as

well as public information about industries in nonsubject countries, we did not reopen the record in this second

remand proceeding.

 39 Mittal Steel, 542 F.3d at 873; Nippon Steel Corp., 458 F.3d at 1350, citing U.S. Steel Group, 96 F.3d at 1357;

S. Rep. 96-249 at 75 (“The determination of the ITC with respect to causation is ... complex and difficult, and is a

matter for the judgment of the ITC.”).

 40 Chairman Okun and Commissioner Pearson have made negative determinations and do not join the remainder

of this opinion. See their dissenting views.

6
volume, either in absolute terms or relative to production or consumption in the United States, is

significant.”41

Throughout the period of investigation, Trinidad and Tobago was the second or third largest

source, measured by quantity, of subject wire rod imports into the U.S. market.42 The volume and market

share of subject imports from Trinidad and Tobago increased from 1999 to 2001, even though total

apparent U.S. consumption was declining.43 The volume of subject imports from Trinidad and Tobago

increased from 341,815 short tons in 1999 to 355,089 short tons in 2001, after declining to 287,507 short

tons in 2000.44 The share of the volume of the U.S. market held by subject imports from Trinidad and

Tobago increased from *** percent in 1999 to *** percent in 2001, after decreasing to *** percent in

2000.45 Relative to total domestic producers’ U.S. shipments of wire rod, the volume of subject imports

from Trinidad and Tobago increased from *** percent in 1999 to *** percent in 2001, notwithstanding a

decline in 2000.46 The data pertaining to subject imports from Trinidad and Tobago are sufficient by

themselves to support a finding that the volume of these subject imports, and the increase in that volume, is

significant.47

Moreover, the record establishes that, while the total volume of imports from Trinidad and Tobago

was smaller in absolute terms than that of either the cumulated non-Trinidadian subject imports or the

nonsubject imports, imports from Trinidad and Tobago increased at a greater rate than the other imports

from 2000 to 2001.48 With respect to countries whose exports focused on lower priced industrial-grade

wire rod, the relationship between relatively low prices and volume trends was mixed, with exports from

 41 19 U.S.C. § 1677(7)(C)(i).

 42 INV-DD-173, Table C-2 (Dec. 29, 2006).

 43 For the reasons stated in the original determination, we have reduced the weight accorded to interim 2002 data

for purposes of our analysis of material injury by reason of subject imports from Trinidad and Tobago. 19 U.S.C. §

1677(7)(I); see Original Determination, USITC Pub. 3546 at 27 n.167, 36 n.230. We note, however, that the

volume of subject imports from Trinidad and Tobago was significantly higher in interim (January-March) 2002,

89,857 short tons, than in interim 2001, 60,992 short tons. INV-Z-156, Table C-2 (Sept. 19, 2002).

 44 INV-Z-156, Table C-2.

 45 INV-Z-156, Table C-2. Although we give less weight to the interim data due to the pendency of the

investigation, we note that the market share was *** percent in interim 2001 and *** percent in interim 2002. Id. 

 46 The ratio of subject import volume from Trinidad and Tobago to domestic production declined from ***

percent in 1999 to *** percent in 2000 and then increased to *** percent in 2001. It was *** percent in interim

2001 and *** percent in interim 2002. See INV-Z-156, Table C-2. 

 47 It is well-established that the Commission has broad discretion in evaluating the significance of import

volumes. See Torrington Co. v. United States, 790 F. Supp. 1161, 1172-73 (Ct. Int’l Trade 1992) (noting the statute

does not specify how volume is to be evaluated and Commission discretion in investigative methodology). 

 48 From 2000 to 2001, the volume of subject imports from Trinidad and Tobago increased by 67,582 short tons,

or by 23.5 percent. By contrast, during the same period, all non-Trinidadian imports increased by only 0.4 percent,

or 11,552 short tons. This increase was entirely attributable to the *** additional short tons of cumulated subject

imports from sources other than Trinidad and Tobago; still, this increase was only *** percent. Imports from all

other sources actually declined. INV-EE-002, Table C-2b (Jan. 3, 2007). 

We have placed greatest weight on changes that occurred between the last two years of the period of

investigation, because that period was more recent. Additionally, this is the period during which apparent

consumption in the United States declined and the domestic industry began to experience a significant decline in

trade and financial indicators. Consequently, it is only logical to look to this period to assess whether there is a

causal connection between injury and the subject imports or some other factor. 

7
some non-Trinidadian subject sources of relatively low-priced wire rod, such as Indonesia and Ukraine,

dropping significantly from 2000 to 2001, when the import volumes of relatively more expensive subject

imports from Trinidad and Tobago surged.49 Similarly, import volumes from some relatively low-priced

non-subject countries such as Egypt and Venezuela also dropped from 2000 to 2001, despite reported unit

values that were relatively lower than those from Trinidad and Tobago.50 From 2000 to 2001, the period in

which we find that the domestic industry was injured most acutely, the overall import volumes of nonTrinidadian subject imports and nonsubject imports were relatively stable.51 It was during this key period

for the domestic industry, however, that import volumes from Trinidad and Tobago increased very

substantially.52

Unlike shipments from other relatively large sources of supply such as Canada and Germany,

which were typically more concentrated in higher value wire rod, the subject imports from Trinidad and

Tobago were concentrated in the low/medium-low carbon industrial standard-grade wire rod where most

domestic production was concentrated.53 About *** percent of U.S. shipments of subject imports from

Trinidad and Tobago from 1999 to 2001 were of this type.54 We find that the concentration of imports

from Trinidad and Tobago of wire rod in this portion of the market contributes to the significance of the

volume of these subject imports, given their direct competition with the domestic like product as overall

U.S. shipments decreased sharply from 2000 to 2001 and domestic producers lost market share.55

For all these reasons, we find that the volume of subject imports, both absolutely and relative to

domestic production and consumption in the United States, is significant. 

B. Price Effects of Subject Imports

Section 771(C)(ii) of the Act provides that, in evaluating the price effects of subject imports, 

the Commission shall consider whether – (I) there has been significant price underselling

by the imported merchandise as compared with the price of domestic like products of the

United States, and (II) the effect of imports of such merchandise otherwise depresses

prices to a significant degree or prevents price increases, which otherwise would have

occurred, to a significant degree.56

 49 INV-EE-002 at Table C-2b. Subject imports from another relatively low-priced source, Moldova, also

declined from 2000 to 2001. Id.

 50 INV-EE-002 at Table C-2b. 

 51 INV-EE-002 at Table C-2b. 

 52 INV-EE-002 at Table C-2b. 

 53 INV-Z-156, Tables D-1 and D-2 (Sept. 19, 2002); see also INV-DD-143 at I-28. For the U.S. industry,

low/medium-low carbon industrial standard-grade wire rod accounted for *** percent of reported shipments in 2001. 

INV-Z-156, Table D-1. This category accounted for *** percent of total reported U.S. shipments of subject imports

from Trinidad and Tobago in 2001, *** percent for Canada, and *** percent for Germany. INV-Z-156, Table D-2. 

Thus, most countries provide a full range of wire rod, but concentrations vary.

 54 INV-Z-156 at I-7, Tables D-1 and D-2. This category’s share of U.S. shipments of imports from Trinidad

and Tobago was *** percent in interim 2001 and *** percent in interim 2002. Id. 

 55 INV-EE-002, Table C-2b.

 56 19 U.S.C. § 1677(7)(C)(ii).

8
As previously discussed, during the period of investigation, most subject imports from Trinidad

and Tobago were concentrated in the low/medium-low carbon industrial standard-grade wire rod category. 

These products are relatively unspecialized, sold largely on the basis of price, and are available from many

sources. The market for these products is very price sensitive.57 Subject imports from Trinidad and

Tobago are highly substitutable with the domestic product in that category, which accentuates the price

competition between subject imports from Trinidad and Tobago and the domestic like product. 

Subject imports from Trinidad and Tobago undersold comparable U.S. products in 70.8 percent of

quarterly comparisons from 1999 to 2001.58 For Products 1 and 2, both of which were grades of industrial

quality wire rod, subject imports from Trinidad and Tobago undersold the domestic industry in 22 out of

26 price comparisons (84.6 percent) by margins that ranged up to 11.0 percent.59 Price comparisons

between imports from Trinidad and Tobago and the domestic product for Products 1 and 2 represent the

greatest quantity of merchandise for which the Commission obtained pricing data. In addition, eight

purchasers rated the U.S. product inferior (higher) in price to subject imports from Trinidad and Tobago,

and only one purchaser ranked the domestic product superior (lower) in price to subject imports from

Trinidad and Tobago.60 In light of the importance of price in purchasing decisions, and the significant and

increasing volume of subject imports from Trinidad and Tobago from 1999 to 2001, we find the

underselling indicated by the pricing data, and corroborated by the other information in the record, to be

significant. 

We further find that the domestic industry suffered from a significant cost-price squeeze during the

period of investigation. The domestic industry’s unit cost of goods sold (“COGS”) increased during the

period.61 However, the domestic industry could not raise its prices sufficiently to recover its increased

costs. Consequently, COGS as a share of net sales steadily increased from *** percent in 1999 to ***

percent in 2000 and to *** percent in 2001.62 This cost/price squeeze was exacerbated by the large fixed

costs in the industry,63 the price-based nature of the competition, the decreasing demand in the domestic

industry’s market, and the falling rate of its capacity utilization.64

The adverse price effects of subject imports from Trinidad and Tobago are underscored by the

ability of those imports to increase their already significant U.S. market share from 1999 to 2001 at the

expense of the domestic industry, despite the significant presence of other low-priced subject and

nonsubject merchandise in the market. The sharp growth of Trinidad and Tobago’s subject import

volumes, even as apparent domestic consumption declined, exacerbated the cost-price squeeze by

 57 See Original Determination, USITC Pub. 3546 at 28. We note that the other significant category of wire rod

imports from Trinidad and Tobago, which comprised *** percent of its U.S. shipments in 2001, is the high/mediumhigh carbon industrial standard-grade wire rod category, which is also supplied by many domestic and import

suppliers. INV-Z-156, Tables D-1 and D-2.

 58 INV-Z-156, Tables V-3-6, V-9. For the entire period for which pricing data was collected, including interim

2002, there was underselling in 69.2 percent of all quarterly comparisons. Original Determination, USITC Pub.

3546, Table V-10.

 59 INV-Z-156, Tables V-3-V-4. 

 60 Original Determination, USITC Pub. 3546, Table II-11. 

 61 INV-Z-162, Table C-2a; see also Original Determination, USITC Pub. 3546, Table VI-3.

 62 INV-Z-162, Table C-2a.

 63 Original Determination, USITC Pub. 3546, Table VI-5 (original cost of productive facilities for U.S.

producers valued at $1.6 billion in 2001). 

 64 INV-Z-162, Table C-2a. 

9
displacing domestic products, particularly during 2001, as lower priced imports from Trinidad and Tobago

increased in volume by 67,582 short tons, or 23.5 percent, and gained market share at the expense of the

domestic industry.65 The loss of shipment volume led to even higher per-unit costs for the domestic

producers, due to the high fixed-cost nature of wire rod production. 

We further find that subject imports from Trinidad and Tobago have suppressed prices for the

domestic like product to a significant degree. Pricing data collected in this investigation showed stagnant

prices or, at best, small increases in prices between 1999 and 2000 for the specific products for which data

were collected.66 As noted above, subject imports undersold the domestic product in a large majority of

comparisons over this entire period. We therefore find that pricing pressure from the readily available and

increasing volume of lower priced subject imports from Trinidad and Tobago prevented the domestic

industry from raising prices when its costs increased,67 particularly in the price-sensitive low and mediumlow carbon industrial quality wire rod category. Had the domestic industry attempted to increase prices to

cover its costs, it would instead have lost further market share and revenues. 

The price suppression that took place from 1999 to 2001 cannot be solely, or even largely,

attributed to the combined non-Trinidadian subject and nonsubject imports. Pricing of non-Trinidadian

cumulated subject imports of industrial-grade wire rod (pricing products 1 and 2) vis a vis subject imports

from Trinidad and Tobago was mixed; there were more comparisons where the Trinidadian imports were

priced higher than imports from other cumulated subject sources than where they were priced lower.68

Nevertheless, as previously discussed, from 2000 to 2001, subject imports from Trinidad and Tobago

increased their presence in the U.S. market at a substantially greater rate than the other imports. Subject

imports from Trinidad and Tobago increased by 67,582 short tons, or 23.5 percent, while all nonTrinidadian imports increased by only 11,552 short tons, or 0.4 percent.69 The average unit values of

nonsubject imports were, on average, *** higher than those from Trinidad and Tobago throughout the

period.70 In light of the significant volume of subject imports from Trinidad and Tobago, their greater rate

 65 INV-EE-002, Table C-2b. 

 66 INV-Z-156, Tables V-3-V-9.

 67 INV-Z-162, Table C-2a. 

 68 INV-Z-156, Tables V-3-4.

 69 INV-EE-002, Table C-2b.

 70 INV-EE-002 at Table C-2a. The Commission’s preference is to rely on actual prices rather than average unit

values (“AUVs”), which can mask differences in, and changes in, product mix. For example, the product-specific

pricing data show underselling by Germany in 23 of 35 comparisons, and by Canada in 24 of 78 comparisons. 

Original Determination, USITC Pub. 3546, Table V-10. The AUVs for these countries, however, were above those

for the domestic producers’ shipments, demonstrating the problem with using AUVs as a proxy for price. See INVEE-002, Table C-2a.

Nevertheless, for these remand proceedings, the AUV data constitute the most reliable facts available with

respect to pricing of nonsubject imports. The Commission did not collect pricing data on nonsubject imports in the

original investigations, and was precluded from doing so in the first remand proceedings because of insufficient

time. See First Remand Determination, USITC Pub. 3903 at 2-3. In this second remand, the Commission did not

believe it would be fruitful to issue new questionnaires seeking pricing data for a period that occurred eight to eleven

years ago. Consequently, because more specific pricing data are not available, the Commission has relied on AUVs

as the facts available concerning pricing of nonsubject imports. 

The record also contains actual pricing data with respect to small quantities of wire rod imports from

Germany, Egypt, Venezuela, and South Africa, which were each subject to investigation but found by the

Commission to be negligible (Egypt, Venezuela, and South Africa in the preliminary determinations, and Germany

(continued...)

10
of increase than other imports between 2000 and 2001, and the impact of these imports on the domestic

industry’s production volume and market share, we conclude that the subject imports from Trinidad and

Tobago contributed in more than a minimal or tangential manner to the domestic industry’s inability to

raise prices commensurately with increased costs. 

We therefore find that there has been significant price underselling by subject imports from

Trinidad and Tobago as compared with the price of domestic like product, and that the effect of the subject

imports was to prevent price increases which otherwise would have occurred to a significant degree. 

C. Impact of the Subject Imports71

Section 771(7)(C)(iii) of the Act provides that the Commission, in examining the impact of the

subject imports on the domestic industry, “shall evaluate all relevant economic factors which have a

bearing on the state of the industry.”72 These factors include output, sales, inventories, capacity utilization,

market share, employment, wages, productivity, profits, cash flow, return on investment, ability to raise

capital, research and development, and factors affecting domestic prices. No single factor is dispositive

and all relevant factors are considered “within the context of the business cycle and conditions of

competition that are distinctive to the affected industry.”73

From 1999 to 2001, the capacity of the domestic industry followed the same trend as apparent U.S.

consumption, increasing by a *** amount between 1999 and 2000, with a *** decline from 2000 to

2001.74 Nevertheless, capacity utilization declined throughout this period, with the *** decline occurring

from 2000 to 2001.75

The domestic industry’s U.S. shipments declined *** from 1999 to 2000, but fell *** from 2000

to 2001.76 Indeed, the *** percent decline in the quantity of U.S. shipments from 2000 to 2001 exceeded

the *** percent decline in apparent U.S. consumption. As a result, the domestic industry’s share of

apparent U.S. consumption, which slipped from *** percent in 1999 to *** percent in 2000, fell *** to

 70(...continued)

in the final determinations), and from Turkey, which was terminated from the final phase investigations due to the

Department of Commerce’s negative subsidy determination. Imports from these countries, however, in the

aggregate accounted for less than *** percent of all nonsubject imports, and pricing data from them cannot be

extrapolated to nonsubject imports as a whole.

 71 In its final dumping determination concerning Trinidad and Tobago, Commerce found dumping margins of

11.40 percent for Caribbean Ispat Ltd. and all others. 67 Fed. Reg. 55788 (Aug. 30, 2002). 

 72 19 U.S.C. § 1677(7)(C)(iii); see also SAA at 851 and 885 (“In material injury determinations, the Commission

considers, in addition to imports, other factors that may be contributing to overall injury. While these factors, in

some cases, may account for the injury to the domestic industry, they also may demonstrate that an industry is facing

difficulties from a variety of sources and is vulnerable to dumped or subsidized imports.”)

 73 19 U.S.C. § 1677(7)(C)(iii); see also SAA at 851, 885; Live Cattle from Canada and Mexico, Inv. Nos. 701-

TA-386, 731-TA-812-813 (Preliminary), USITC Pub. 3155 at 25 n.148 (Feb. 1999).

 74 Domestic producers’ capacity was *** short tons in 1999, *** short tons in 2000, and *** short tons in 2001. 

INV-DD-173, Table C-2a.

 75 Capacity utilization was *** percent in 1999, *** percent in 2000, and *** percent in 2001. INV-DD-173,

Table C-2a.

 76 The domestic industry’s U.S. shipments declined from *** short tons in 1999 to *** short tons in 2000, and

declined further to *** short tons in 2001. Export shipments increased from 1999 to 2001, but were *** in relation

to U.S. shipments. Inventory levels increased from 1999 to 2000 and declined from 2000 to 2001 in absolute terms,

but the ratio of inventories to shipments was the same in 2001 as it was in 1999. INV-DD-173, Table C-2a.

11
*** percent in 2001. One reason for the domestic industry’s marked decline in shipments and market

share for 2000 to 2001 were subject imports from Trinidad and Tobago, which increased in absolute terms

during this period despite the decline in apparent U.S. consumption, while gaining *** percentage points

of market share.77

Employment-related indicators such as number of production and related workers, hours worked,

and wages paid showed relatively modest fluctuations between 1999 and 2000. These indicators then all

declined markedly from 2000 to 2001.78

The combination of low and declining capacity utilization, declining sales volumes, and price

levels that were suppressed to a significant degree led to progressively worse operating results for the

domestic industry. The industry’s operating losses grew from *** in 1999 to *** in 2000, and then to ***

in 2001.79 The industry’s operating income margin (operating income as a share of sales) fell from

negative *** in 1999 to negative *** in 2000 and to negative *** in 2001.80 Industry capital expenditures

reported in the questionnaires increased somewhat from 1999 to 2000, then fell by *** in 2001.81

Thus, from 1999 to 2001 the domestic industry experienced growing operating losses, decreased

production, shipments, capacity and capacity utilization, declining employment indicators, increasing

costs, and suppressed prices. The subject producer in Trinidad and Tobago, the second or third most

significant subject import supplier throughout the period of investigation, shipped increasing volumes of

subject imports that undersold the domestic like product in a majority of comparisons and gained market

share at the expense of the domestic industry. Between 2000 and 2001, when the domestic industry was

experiencing its sharpest declines in shipments and profitability and was at its most vulnerable, subject

imports from Trinidad and Tobago significantly increased in both absolute and relative terms, while

regularly underselling the domestic like product. 

Consistent with the instructions of the Federal Circuit in Mittal Steel, we have considered the role

of those imports not from Trinidad and Tobago in contributing to the domestic industry’s difficulties.82 In

our original determinations concerning imports from other subject sources, we found that these imports –

when cumulated with imports from Trinidad and Tobago – had a material adverse impact on the domestic

industry.83 The record indicates, however, that the increased volumes of unfairly traded subject imports

 77 INV-DD-173, Table C-2a.

 78 The number of production and related workers declined from *** in 1999 to *** in 2000, and then to *** in

2001. Hours worked increased from *** in 1999 to *** in 2000, and then declined to *** in 2001. Wages paid

increased from *** in 1999 to *** in 2000, and then declined to *** in 2001. INV-DD-173, Table C-2a.

 79 INV-DD-173, Table C-2a. Although we give less weight to these data due to the pendency of the

investigation, we note that in interim 2002, the domestic industry experienced an operating income of *** as

compared to an operating loss of *** in interim 2001. INV-Z-156, Table C-2.

 80 INV-DD-173, Table C-2a. 

 81 INV-DD-173, Table C-2a.

 82 Commissioner Aranoff observes that she reached a negative determination in the first remand solely by

application of the “replacement/benefit” analysis she believed the Federal Circuit had mandated under Caribbean

Ispat. First Remand Determination, USITC Pub. 3903 at 22. As indicated in section II, the Federal Circuit’s

decision in Mittal Steel indicates that the statute does not require a rigid “replacement/benefit” analysis; instead,

Commissioners may use an appropriate methodology to ensure that they are not attributing injury from other sources

to the subject imports. As explained below, in this second remand Commissioner Aranoff has determined that an

affirmative determination is warranted using a non-attribution methodology consistent with Mittal Steel.

 83 Original Determination, USITC Pub. 3546 at 30-32.

12
from Trinidad and Tobago had an adverse impact on the domestic industry that is not attributable to

imports from other sources. 

We first considered those cumulated subject imports from sources other than Trinidad and Tobago. 

We emphasize that the subject imports from Canada were by a wide margin the largest individual import

source supplying the U.S. market during the period of investigation.84 A significant proportion of these

imports consisted of high-value wire rod products which did not compete directly with the subject imports

from Trinidad and Tobago.85 While non-Trinidadian subject imports from other countries entered the

United States at prices competitive with those of the Trinidadian product, the frequency and degree of

underselling by subject imports from Trinidad and Tobago was sufficient by itself to drive a significant

increase in subject import volume and market share from 2000 to 2001 at the expense of the domestic

industry.86 In other words, notwithstanding any adverse effects from other subject imports, subject imports

of Trinidad and Tobago had sufficient volume and price effects so that the adverse impact of these imports

on the domestic industry was not trivial or de minimis.

We next considered imports from other sources. While subject imports from Trinidad and Tobago

increased by 23.5 percent from 2000 to 2001, when the domestic industry was having its greatest

difficulties, import quantities from sources other than cumulated subject sources or Trinidad and Tobago

actually declined.87 The information available to the Commission indicates that average unit values for the

nonsubject imports, a proxy for pricing data under these circumstances, were *** overall than those from

Trinidad and Tobago during the period of investigation. The average unit values of the nonsubject imports

also *** the average unit values of domestic producers’ U.S. shipments. In light of these data, the

presence of some price-competitive nonsubject imports in the market during the period of investigation

does not detract from our conclusion that subject imports from Trinidad and Tobago had an adverse impact

on the domestic industry that was not trivial or de minimis.

Consequently, we find that the subject imports from Trinidad and Tobago alone were having a

significant adverse impact on the domestic industry producing wire rod, based on the significant and

increasing volume and market share of subject imports from Trinidad and Tobago in a shrinking market,

significant price underselling and significant price suppression by these imports, and declining industry

indicators from 1999 to 2001.

For the foregoing reasons, we determine that an industry in the United States is materially injured

by reason of LTFV imports of wire rod from Trinidad and Tobago.

 84 INV-E-002, Table C-2b.

 85 INV-Z-156, Table D-2.

 86 Moreover, the only other sources of subject imports with market share increases comparable to Trinidad and

Tobago from 2000 to 2001 were Canada and Mexico. INV-EE-002, Table C-2b. However, in the industrial quality

wire rod products in which Trinidadian imports were concentrated, subject imports from Trinidad and Tobago were

priced lower than subject imports from Canada or Mexico in most quarterly comparisons. INV-Z-156, Tables V-3-4. 

Additionally, as previously discussed, much of the subject Canadian imports were concentrated in higher grades.

 87 INV-EE-002, Table C-2b.

13
 
DISSENTING VIEWS OF CHAIRMAN DEANNA TANNER OKUN

AND COMMISSIONER DANIEL R. PEARSON

CONCERNING SUBJECT IMPORTS FROM TRINIDAD AND TOBAGO

I. INTRODUCTION

Based on the record in this investigation, we determine that an industry in the United States is not

materially injured or threatened with material injury by reason of imports of carbon and certain alloy steel

wire rod (“wire rod”) from Trinidad and Tobago that are sold in the United States at less than fair value

(“LTFV”). On March 29, 2010, the U.S. Court of International Trade ordered the Commission to conduct

a remand proceeding in the original final antidumping duty investigation regarding imports of wire rod

from Trinidad and Tobago,1

 as a result of the September 2008 Federal Circuit decision in the Mittal Steel

Point Lisas litigation (“Mittal Steel”).2 Chairman Okun’s views in the original investigation, as reissued

by her in the first remand proceeding, are not the subject of the Court’s remand order. She incorporates in

its entirety her dissenting views in the original investigation in these supplemental views.3

 Commissioner

Pearson did not participate in the original investigation nor in the first remand proceeding. Upon

consideration of the record, Commissioner Pearson adopts in their entirety the dissenting views of

Chairman Okun in the original investigation, as supplemented by these views. We join the Views of the

Commission on remand concerning the background of this investigation and the appropriate legal

standard.4

The original investigations involved subject imports of wire rod from Brazil, Canada, Germany,

Indonesia, Mexico, Moldova, Trinidad and Tobago, Turkey, and Ukraine.5

 For purposes of the

determination on subject imports from Trinidad and Tobago, imports from Trinidad and Tobago were not

eligible for cumulation with those from any other subject country under the cumulation exception

applicable to beneficiary countries under the Carribean Basin Economic Recovery Act (CBERA).6

 Thus,

in the original investigations, Chairman Okun was precluded by statute from cumulating subject imports

 1 Mittal Steel Point Lisas, Ltd. v. United States, Slip Op. 10-32 (Ct. Int’t Trade March 29, 2010).

 2 Mittal Steel Point Lisas, Ltd. v. United States, 542 F.3d 867 (Fed. Cir. 2008).

 3 Carbon and Certain Alloy Steel Wire Rod from Brazil, Canada, Germany, Indonesia, Mexico, Moldova,

Trinidad and Tobago, Turkey, and Ukraine, Inv. Nos. 701-TA-417-421, 731-TA-953-954, 956-959, 961, and 962

(Final), USITC Pub. 3546 at 1 and 39-46 (Oct. 2002) (“Original Determination”).

 4 The Commission’s findings, analysis, or conclusions concerning the issues of domestic like product, domestic

industry, negligibility, cumulation, and conditions of competition have not been at issue in the litigation. Chairman

Okun reaffirms the findings she made on these issues in the original determination. Commissioner Pearson did not

participate in the prior proceedings, but adopts the findings on these issues from the original determination. See

Original Determination, USITC Pub. 3546 at 6-12 (domestic like product), 13-15 (domestic industry), 16 (finding

subject imports from Trinidad and Tobago not negligible), 18 (finding that, for determination on Trinidad and

Tobago, those imports must be considered separately because of CBERA exception to cumulation), 23-26

(conditions of competition).

 5 Original Determination, USITC Pub. 3546 at 28. The antidumping and countervailing duty investigations with

regard to wire rod imports from Germany was terminated when the Commission determinated in the original final

phase determination that such imports were negligible. The Commission’s countervailing duty investigation with

regard to wire rod imports from Turkey was terminated from the final investigation due to the Department of

Commerce’s negative subsidy determination. USITC Pub. 3546 at 17 and I-1.

 6 See 19 U.S.C. § 1677(7)(G)(ii)(III).

15
from Trinidad and Tobago, which is a beneficiary country under CBERA, with any other subject

imports.7

II. NO MATERIAL INJURY BY REASON OF SUBJECT IMPORTS FROM TRINIDAD

AND TOBAGO

A. Volume of Subject Imports

Section 771(7)(C)(I) of the Tariff Act of 1930, as amended (“the Act”) provides that the

“Commission shall consider whether the volume of imports of the merchandise, or any increase in that

volume, either in absolute terms or relative to production or consumption in the United States, is

significant.”8

As Chairman Okun found in her original determination, between 1999 and 2001 subject import

volume from Trinidad and Tobago fluctuated, but increased by less than 4 percent and by less than *** as

a share of the U.S. market.9

 In fact, imports from Trinidad and Tobago accounted for at most *** of the

U.S. market during that period.10 Thus, the record indicated that subject imports from Trinidad and

Tobago constituted a small portion of the U.S. market and increased only modestly over the period

examined, particularly, as discussed below, in comparison to the combined volume of subject imports of

wire rod from Brazil, Canada, Indonesia, Mexico, Moldova, and Ukraine, and the volume of nonsubject

imports.

For all these reasons, we find that the volume of subject imports from Trinidad and Tobago, or

any increases in such volume, both absolutely and relative to domestic production and consumption in the

United States, is not significant.

B. Price Effects of Subject Imports

Section 771(C)(ii) of the Act provides that, in evaluating the price effects of subject imports, 

the Commission shall consider whether – (I) there has been significant price underselling

by the imported merchandise as compared with the price of domestic like products of the

United States, and (II) the effect of imports of such merchandise otherwise depresses

prices to a significant degree or prevents price increases, which otherwise would have

occurred, to a significant degree.11

We incorporate by reference the discussion of price effects by subject imports from Trinidad and

Tobago in the dissenting views of Chairman Okun in the original determination.12 Subject imports from

Trinidad and Tobago generally were priced higher than comparable wire rod from other subject countries

 7 Original Determination, USITC Pub. 3546 at 18 and 39. Commissioner Pearson did not participate in the

original wire rod investigations.

 8 19 U.S.C. § 1677(7)(C)(I).

 9 The quantity of subject imports from Trinidad and Tobago decreased from 341,815 short tons in 1999 to

287,507 short tons in 2000, then increased to 355,089 short tons in 2001, resulting in a net increase of 3.9 percent

(13,274 short tons). INV-Z-162 at Table C-2a.

 10 INV-Z-162 at Table C-2a.

 11 19 U.S.C. § 1677(7)(C)(ii).

 12 Original Determination, USITC Pub. 3546 at 41-43.

16
(as discussed below), generally increased in price in the second half of 2001,13 and did not result in any

confirmed instances of lost sales or lost revenues by the domestic industry.14 Although subject imports

from Trinidad and Tobago frequently were priced lower than comparable domestic wire rod, underselling

was often by margins of less than 5 percent.15 Moreover, as discussed below, in light of the large and

growing presence of imports from subject countries other than Trinidad and Tobago that undersold both

comparable U.S.-produced wire rod and comparable wire rod from Trinidad and Tobago, we do not find

price suppressing effects of wire rod from Trinidad and Tobago to be significant.

We therefore find that there has not been significant price underselling by subject imports from

Trinidad and Tobago as compared with the price of domestic like product, and that the effect of the

subject imports did not depress prices to a significant degree or prevent price increases which otherwise

would have occurred to a significant degree.

C. Impact of Subject Imports16

Section 771(7)(C)(iii) of the Act provides that the Commission, in examining the impact of the

subject imports on the domestic industry, “shall evaluate all relevant economic factors which have a

bearing on the state of the industry.”17 These factors include output, sales, inventories, capacity

utilization, market share, employment, wages, productivity, profits, cash flow, return on investment,

ability to raise capital, research and development, and factors affecting domestic prices. No single factor

is dispositive and all relevant factors are considered “within the context of the business cycle and

conditions of competition that are distinctive to the affected industry.”18

Consistent with our finding that the volume and price effects of subject imports from Trinidad

and Tobago are not significant, we find that such imports did not have a significant adverse impact on the

domestic industry. We have considered the statutory factors included in the discussion of the impact of

cumulated subject imports on the domestic industry contained in section V-D of the Views of the

Commission in the original investigations.19 We recognize that the condition of the domestic industry

deteriorated markedly from 1999 to 2001.20 The evidence, however, indicates that the significant volume

 13 The record does not reflect a clear price leader in the U.S. market or any downward trend in prices for the

domestic like product. INV-Z-156 at V-6 - V-8. Domestic and import prices fluctuated over the period examined,

although most high volume products tended to peak in 2000, decline to period lows in early 2001, then increase late

in 2001. INV-Z-156 at Tables V-3 - V-9.

 14 INV-Z-156 at Tables V-11 -V-12.

 15 INV-Z-156 at Tables V-3 - V-6 and V-9 - V-10. In 20 instances the margins of underselling were less than 5

percent; in the remaining 16 instances the margins ranged between 5.3 percent and 11.2 percent. Id.

 16 In its final dumping determination concerning Trinidad and Tobago, Commerce found dumping margins of

11.40 percent for Caribbean Ispat, Ltd. and all others. 67 Fed. Reg. 55788 (Aug. 30, 2002). 

 17 19 U.S.C. § 1677(7)(C)(iii); see also SAA at 851 and 885 (“In material injury determinations, the Commission

considers, in addition to imports, other factors that may be contributing to overall injury. While these factors, in

some cases, may account for the injury to the domestic industry, they also may demonstrate that an industry is facing

difficulties from a variety of sources and is vulnerable to dumped or subsidized imports.”)

 18 19 U.S.C. § 1677(7)(C)(iii); see also SAA at 851, 885; Live Cattle from Canada and Mexico, Inv. Nos. 701-

TA-386, 731-TA-812-813 (Preliminary), USITC Pub. 3155 at 25 n.148 (Feb. 1999).

 19 See Original Determination, USITC Pub. 3546 at 30-33.

 20 INV-Z-162 at Table C-2a.

17
loss and market-disrupting low prices experienced by the domestic industry were not more than

minimally or tangentially by reason of the subject imports from Trinidad and Tobago.

We have considered whether factors other than subject imports have had an adverse impact on the

domestic industry to ensure that we do not attribute effects from such factors to the subject imports from

Trinidad and Tobago. In particular, we have considered the role of imports of wire rod from other

countries subject to the original investigations (Brazil, Canada, Indonesia, Mexico, Moldova, and

Ukraine) and from nonsubject sources (including Germany). While apparent U.S. consumption declined

by *** from 1999 to 2001, the cumulated volume of other subject imports increased by *** and these

imports’ share of the U.S. market rose from ***.21 The market share of nonsubject imports (including

wire rod from Germany) also increased from *** to *** from 1999 to 2001.22 Conversely, the domestic

industry saw its market share erode by *** from 1999 to 2001, primarily at the expense of imports other

than those from Trinidad and Tobago. Specifically, other imports captured substantial market share from

the domestic industry, increasing by *** compared to the increase of only *** by subject imports from

Trinidad and Tobago.

Moreover, the evidence also shows that wire rod from other subject countries generally was

priced lower than both domestic product and subject imports from Trinidad and Tobago.23 Not

surprisingly, much of the growth in other subject import market share was the result of low-priced

imports from Brazil, Indonesia, Mexico, Moldova, and Ukraine.24

In the absence of significant volume and price effects from wire rod from Trinidad and Tobago

and evidence that factors other than subject imports adversely affected the domestic industry’s

performance over the period, we do not find a sufficient causal link between subject imports from

Trinidad and Tobago and the adverse condition of the domestic industry. Therefore, we determine that

subject imports from Trinidad and Tobago did not have a significant adverse impact on the domestic

industry.

 21 INV-Z-162 at Table C-2a.

 22 INV-Z-162 at Table C-2a.

 23 For product 1, subject imports from Trinidad and Tobago generally were priced higher than subject imports

from ***. INV-Z-156 at Table V-3. For product 2, subject imports from Trinidad and Tobago generally were priced

higher than subject imports from ***. INV-Z-156 at Table V-4. For product 4, subject imports from Trinidad and

Tobago generally were priced higher than subject imports from ***. INV-Z-156 at Table V-6. For product 7,

subject imports from Trinidad and Tobago generally were priced lower than *** but higher than ***. INV-Z-156 at

Table V-9.

 24 INV-Z-162 at Table C-2a (subject imports from Brazil, Indonesia, Mexico, Moldova, and Ukraine gained

nearly *** of market share from 1999 to 2001); INV-Z-156 at Table V-10 (subject imports from Brazil, Indonesia,

Mexico, Moldova, and Ukraine undersold comparable domestic wire rod in *** of comparisons). We recognize that

imports from Canada increased by *** from 1999 to 2001 and that such imports typically sold at prices higher than

comparable wire rod produced in the United States. INV-Z-162 at Table C-2a and INV-Z-156 at Table V-10.

18
III. NO THREAT OF MATERIAL INJURY BY REASON OF SUBJECT IMPORTS FROM

TRINIDAD AND TOBAGO

Section 771(7)(F) of the Tariff Act directs the Commission to determine whether the U.S.

industry is threatened with material injury by reason of the subject imports by analyzing whether “further

dumped or subsidized imports are imminent and whether material injury by reason of imports would

occur unless an order is issued or a suspension agreement is accepted.”25 The Commission may not make

such a determination “on the basis of mere conjecture or supposition,” and considers the threat factors “as

a whole” in making its determination whether dumped or subsidized imports are imminent and whether

material injury by reason of subject imports would occur unless an order is issued.26 In making our

determinations, we consider all statutory threat factors that are relevant to these investigations.27

 25 19 U.S.C. § 1677(7)(F)(ii).

 26 19 U.S.C. § 1677(7)(F)(ii).

 27 These factors are as follows:

(I) if a countervailable subsidy is involved, such information as may be presented to it by the administering

authority as to the nature of the subsidy (particularly as to whether the countervailable subsidy is a subsidy

described in Article 3 or 6.1 of the Subsidies Agreement) and whether imports of the subject merchandise

are likely to increase,

(II) any existing unused production capacity or imminent, substantial increase in production capacity in the

exporting country indicating the likelihood of substantially increased imports of the subject merchandise

into the United States, taking into account the availability of other export markets to absorb any additional

exports,

(III) a significant rate of increase of the volume or market penetration of imports of the subject merchandise

indicating the likelihood of substantially increased imports,

(IV) whether imports of the subject merchandise are entering at prices that are likely to have a significant

depressing or suppressing effect on domestic prices and are likely to increase demand for further imports,

(V) inventories of the subject merchandise,

(VI) the potential for product-shifting if production facilities in the foreign country, which can be used to

produce the subject merchandise, are currently being used to produce other products;

(VIII) the actual and potential negative effects on the existing development and production efforts of the

domestic industry, including efforts to develop a derivative or more advanced version of the domestic like

product, and ,

. . .

(IX) any other demonstrable adverse trends that indicate the probability that there is likely to be material

injury by reason of imports (or sale for importation) of the subject merchandise (whether or not it is actually

being imported at the time).

19 U.S.C. § 1677(7)(F)(I). As a result of Commerce’s negative countervailing duty determination, factor I is

inapplicable to wire rod from Trinidad and Tobago. This investigation does not involve an agricultural product, so

statutory threat factor (VII) is not implicated. As no one has argued that the domestic industry is currently engaging

or will imminently engage in any efforts to develop a derivative or more advanced version of the domestic like

product, statutory threat factor (VIII) is not implicated.

19
As an initial matter,28 we do not find that the domestic industry is vulnerable to a threat of

material injury by reason of subject imports from Trinidad and Tobago. As noted above, the domestic

industry experienced a sharp decline in its operating performance between 1999 and 2001. However,

with the closure of four mills between December 2000 and June 2001, the domestic industry has

streamlined and restructured.29 Such market conditions would be conducive to higher price levels and

more productive use of assets. Indeed, the domestic industry achieved profitability in the first quarter of

2001 on the strength of rising prices and declining costs.30

We have found the modest increase in the volume of subject imports in the U.S. market, both

absolutely and relative to U.S. consumption, not to be significant. The evidence in the record does not

indicate that a substantial increase in subject imports in the imminent future is likely.

Moreover, the sole Trinidadian producer, now known as Arcelor Mittal Point Lisas, Ltd.

(“AMPL”),31 has limited available capacity and already depends on the U.S. market for a substantial

portion of its sales, neither of which suggests the likelihood of a significant increase in subject import

volume in the imminent future. During the period of investigation, AMPL’s capacity remained stable and

is projected to remain at *** annually.32 The industry operated at *** high capacity utilization rates

throughout the period of investigation and projects similarly high rates in the future, leaving little spare

capacity for additional exports.33 The U.S. market has been the primary focus of the Trinidadian industry

and is projected to remain so in the imminent future.34 Moreover, the share of shipments exported to the

United States has been relatively stable over the period of investigation. Inventories were somewhat

higher at the end of 2001 than in 1999, but the increase in inventories was small relative to overall

shipments.35

The relevant facts regarding Trinidad and Tobago do not suggest a likely substantial increase in

subject imports from Trinidad and Tobago in the imminent future – Trinidad wire rod production capacity

still is ***, Trinidad already is dependent on the U.S. market for a substantial portion of its sales, and

capacity, even if production is increased, will limit additional exports to the U.S. market to levels at or

lower than during the period of investigation. In light of the consistently high capacity utilization levels

by AMPL, its limited availability of excess capacity and the relatively low and stable inventory levels, we

find no likelihood of a substantial increase in the volume of subject imports.

 28 We note that the conditions discussed in this opinion are those that were in existence at the time of the

Commission’s original final determination.

 29 INV-Z-156 at II-2-4.

 30 INV-Z-162 at Table C-2a.

 31 The sole Trinidadian producer and exporter of wire rod was named Caribbean Ispat at the time of the original

investigations, was subsequently renamed Mittal Steel Point Lisas, Ltd., and now is known as Arcelor Mittal Point

Lisas, Ltd.

 32 INV-Z-156 at Table VII-7.

 33 INV-Z-156 at Table VII-7. AMPL’s capacity utilization levels were *** in 1999, *** in 2000, and *** in

2001. In the first quarter of 2002, capacity utilization was *** compared to *** in the first quarter of 2001. Id.

 34 INV-Z-156 at Table VII-7. Exports to the U.S. market already account for a substantial share of AMPL’s

shipments, fluctuating between *** and *** of total Trinidadian shipments from 1999 to 2001. Projections for 2002

and 2003 of *** in line with the export shipments during the period of investigation. Id. AMPL’s non-U.S. export

markets include ***. INV-Z-156 at Table VII-7, note 2.

 35 INV-Z-156 at Table VII-7. Moreover, U.S. importer-held inventories were quite small (less than *** and

consistently less than *** of imports of wire rod from Trinidad and Tobago. INV-Z-156 at Table VII-9.

20
We have already found that subject imports from Trinidad and Tobago have not had significantly

adverse effects on domestic prices. Because prices increased in the most recent quarters, domestic supply

has become more constrained due to mill closures, and a significant increase in subject imports from

Trinidad and Tobago does not appear imminent, we do not find that subject imports from Trinidad and

Tobago are likely to have significant depressing or suppressing effects on domestic prices in the imminent

future.

We also find that subject imports from Trinidad and Tobago are not likely to have an actual or

potential negative effect on the domestic industry’s existing development and production efforts36 nor that

AMPL is likely to shift production from other products to wire rod.37 Finally, Colombia has had an

antidumping duty order on low carbon wire rod from Trinidad and Tobago since December 1997, which

terminated on December 26, 2002.38

IV. CONCLUSION

For the reasons stated above, we find that the domestic industry producing wire rod is not

materially injured or threatened with material injury by reason of subject imports from Trinidad and

Tobago sold at LTFV.

 36 Domestic production and capital expenditures were higher in the first quarter of 2002 compared to the first

quarter of 2001, although capacity and R&D expenditures were lower. INV-Z-162 at Table C-2a and INV-Z-156 at

Table VI-5.

 37 While AMPL produces *** on the same equipment used to produce wire rod, there is no evidence indicating

that it is likely to alter its allocated capacity of about *** between *** and wire rod. INV-Z-156 at VII-10.

 38 USITC Pub. 3546 at VII-5. Under the order, imports were required to meet or exceed certain reference prices

established by the Colombian Ministry of Foreign Trade. Also, since March 1, 2000, U.S. imports of wire rod other

than those from Canada and Mexico had been subject to a tariff-rate quota (TRQ); the TRQ, which included a

defined allocation for Trinidad and Tobago imposing an additional 5 percent tariff on over-quota shipments, expired

in March 2003. Id.

21
 
DISSENTING VIEWS OF COMMISSIONER DEAN A. PINKERT 

Based on the record in this investigation, I determine that an industry in the United States is not

materially injured or threatened by material injury by reason of subject imports of wire rod from Trinidad

and Tobago that have been found by Commerce to be sold in the United States at less than fair value.

As discussed in greater detail below, I find the volume of subject imports1

 and their price effects

to be significant. Based on the causation analysis required by the Federal Circuit in Bratsk and Mittal,

however, I find that the domestic industry is not materially injured “by reason of” subject imports.2

Moreover, I find that the domestic industry is not threatened with material injury by reason of subject

imports because subject imports will not likely increase in volume or cause increased price effects in the

imminent future, and there is no indication that the dynamics of competition in the U.S. market will

change significantly in that timeframe. 

I. NO MATERIAL INJURY BY REASON OF SUBJECT IMPORTS FROM TRINIDAD

AND TOBAGO

A. Volume of Subject Imports

The volume and market share of subject imports from Trinidad and Tobago increased from 1999

to 2001, even though apparent U.S. consumption was declining. Subject import volume decreased from

341,815 short tons in 1999 to 287,507 short tons in 2000 and then increased to 355,089 short tons in

2001.3

 The share of the U.S. market held by the subject imports similarly decreased from *** percent in

1999 to *** percent in 2000 and then increased to *** percent in 2001.4

 The ratio of subject imports to

domestic production also decreased from *** percent in 1999 to *** percent in 2001 before increasing to

*** percent in 2001.5

Subject imports from Trinidad and Tobago are concentrated in low carbon industrial quality wire

rod – a highly price-sensitive and interchangeable product sold by many suppliers in the United States,

including domestic producers.6

 Subject import shipments were particularly concentrated in the low

 1 In these Views, “subject imports” refers to imports of subject merchandise from Trinidad and Tobago.

 2 As set out in the background of the Commission’s majority views, my interpretation of the requirements set

forth in Bratsk Aluminum Smelter v. United States, 444 F. 3d 1369 (Fed. Cir. 2006), and Mittal Steel Point Lisas,

Ltd. v. United States, 543 F. 3d 867 (Fed. Cir. 2008), differs from that of my colleagues.

 3 Memorandum INV-Z-162, Table C-2a. I give less weight to the interim (January to March) 2002 data, which

were affected by the pendency of the investigation. I note, however, that the volume of subject imports from

Trinidad and Tobago was 60,992 short tons in interim 2001 and 89,857 short tons in interim 2002. Id. 

 4 Memorandum INV-Z-162, Table C-2a. The market share was *** percent in interim 2001 and *** percent in

interim 2002. Id. 

 5 Calculated from Memorandum INV-Z-162, Table C-2a. The ratio of subject imports from Trinidad and

Tobago to domestic production was *** percent in interim 2001 and *** percent in interim 2002. 

 6 In the original 2002 investigations, Petitioners stated that imports of wire rod from Trinidad and Tobago were

***. Petitioners’ Prehearing Brief at 62. 

23
carbon industrial quality wire rod category,7

 which accounted for *** percent of subject import shipments

in the U.S. market and *** of domestic producer U.S. shipments from 1999 to 2001.8

 

Similarly, the second largest category in which subject imports from Trinidad and Tobago

compete in the U.S. market – high carbon industrial quality or high carbon wire rod – is a significantly

price-sensitive and interchangeable product sold by many suppliers in the U.S. market.9

 Subject imports

in the high carbon industrial quality wire rod category10 accounted for *** percent of subject import

shipments in the U.S. market and *** percent of domestic producer U.S. shipments from 1999 to 2001.11 

The vast majority of subject import shipments *** and domestic producers’ shipments *** from

1999 to 2001 were in one of these two standardized industrial quality wire rod categories. The high

intensity of direct competition between subject imports from Trinidad and Tobago and the domestic like

product in these categories increases the significance of the subject import volume.12 

In such a competitive, price-sensitive market, I find the volume and market share of subject

imports to be significant, both absolutely and relative to production and consumption in the United States,

particularly given that (1) subject import volume was at its highest level in 2001 (when apparent U.S.

consumption fell) and (2) the domestic industry experienced a significant decline in trade and financial

indicators at that time. 

 7 The tables in Appendix D to the staff report refer to this category of wire rod as low/medium-low carbon

industrial/standard quality wire rod. These products are made from low or medium-low carbon steel and are used to

manufacture wire that is consumed in making nails, coat hangers, and mesh for concrete reinforcement/fencing. 

Low carbon industrial quality wire rod is sometimes referred to as “industrial quality wire rod.” CR/PR (the public

or confidential version of the original final phase staff report in these investigations, specifically Memorandum INVZ-156 dated September 19, 2002) at Table I-1; CR at I-7, PR at I-6. CR/PR at Tables D-1 and D-2. 

 8 CR/PR at Tables D-1 and D-2. Shipments of low carbon industrial quality wire rod also accounted for the

majority of U.S. shipments from Brazil, Indonesia, Mexico, Moldova, Ukraine, and “other sources” from 1999 to

2001. Id. 

 9 “[I]n the end quarterly negotiations usually come down to price, whether it's mesh or hanger quality, bead or

high carbon, CHQ or industrial quality, price is the primary and overriding issue. We have found that if the price is

right, the issues of availability, qualifications, et cetera, seem to work themselves out.” Tr. at 66-67 (Lundberg,

North Star Steel). 

 10 The tables in Appendix D to the staff report refer to this category of wire rod as high /medium-high carbon

industrial/standard quality wire rod. These products are made from high or medium-high carbon steel and are used

to manufacture wire that is consumed in making strand and rope, tire bead and upholstery string, and other items. 

CR/PR at Table I-1. High carbon industrial quality wire rod is sometimes referred to as “high carbon wire rod.” 

CR/PR at Table I-1. See Table D-3, Preliminary Staff Report, referencing “H/MH carbon quality rods.” 

Memorandum INV-Y-204 issued October 9, 2001. 

 11 CR/PR at Tables D-1 and D-2. Importers shipped low and high carbon industrial quality wire rod from a wide

variety of countries into the U.S. market from 1999 to 2001. The remaining shipments from Trinidad and Tobago

were in the welding and “all other” categories; those types of wire rod were also supplied by the domestic industry in

substantial quantities. Id. 

 12 Petitioners characterized wire rod as “a basic industrial commodity that is primarily sold on price” and the

market for wire rod as “a commodity market characterized by intense price-based competition.” Petitioners’

Posthearing Brief at 50, 62. 

24
B. Price Effects of Subject Imports

Wire rod is sold largely on the basis of price.13 Purchasers ranked price as the second most

important factor after quality in selecting a wire rod supplier.14 Wire rod of similar quality and intended

for similar uses is generally interchangeable regardless of source.15 Purchasers reported that wire rod

from foreign and domestic sources can be used in the same applications in most instances.16 

As stated above, subject imports are highly substitutable with the domestic like product in the low

and high carbon industrial quality products, which are the dominant product categories for both subject

and domestic shipments.17 Subject imports compete directly against the domestic like product in those

categories. 

Overall, subject imports from Trinidad and Tobago undersold comparable U.S. products in 70.8

percent of quarterly price comparisons from 1999 to 2001.18 Products 1 and 2 were grades of low carbon

industrial quality wire rod, and the price comparisons between subject imports and the domestic like

product with respect to these products represented substantially more merchandise than the price

comparisons with respect to the other products for which the Commission obtained pricing data. Subject

imports undersold the domestic like product in price comparisons involving the two products in 22 out of

26 comparisons by margins ranging up to 11.0 percent.19 Subject imports also undersold the domestic

like product with respect to Product 4, a high carbon wire rod, in 9 of 13 comparisons by margins ranging

up to 4.6 percent.20 I find the underselling by the subject imports, particularly in the low carbon industrial

quality wire rod segment of the market, to be significant. 

The domestic industry’s cost of goods sold (“COGS”) as a share of net sales increased steadily

from *** percent in 1999 to *** percent in 2000 and *** percent in 2001.21 Unit COGS also increased

steadily over this period.22 Pricing pressure from lower priced subject imports from Trinidad and Tobago

prevented the domestic industry from raising prices to a significant degree, particularly in 2001, when

subject import volume and unit costs reached their highest levels of the period examined and the

COGS/sales ratio exceeded *** percent.23 Although other factors, such as decreased demand and other

 13 Tr. at 66-67 (Lundberg, North Star Steel); Petitioners’ Posthearing Brief at 50. 

 14 CR/PR at Table II-2. 

 15 CR at I-7; PR at I-6. 

 16 CR/PR at Table II-4. 

 17 There were also smaller volumes of subject shipments in the welding quality and “all other” categories. 

 18 CR/PR at Tables V-3, V-4, V-5, V-6, and V-9. Including in interim 2002, subject imports undersold the

domestic like product in 69.2 percent of all quarterly price comparisons for the periods examined. Moreover, eight

purchasers rated the U.S. product inferior (higher) in price to subject imports from Trinidad and Tobago, and only

one purchaser ranked the domestic like product superior (lower) in price to subject imports. CR/PR at Table II-11.

 19 CR/PR at Tables V-3-V-4. 

 20 CR/PR at Table V-6. The available price comparison data for Product 7 showed a greater number of instances

of overselling than of underselling. CR/PR at Table V-9. 

 21 OINV Memorandum INV-Z-162, Table C-2a. COGS as a share of net sales was *** percent in interim 2001

and *** percent in interim 2002. Id. As stated earlier, however, I give less weight to the interim 2002 data. 

 22 OINV Memorandum INV-Z-162, Table C-2a. Unit COGS was higher in interim 2001 than in interim 2002. 

Id. 

 23 CR/PR at Tables V-3, V-4 and V-6. 

25
lower priced imports, may have affected U.S. prices, I find that lower priced subject imports from

Trinidad and Tobago suppressed domestic prices to a significant degree. 

Accordingly, I find that subject imports from Trinidad and Tobago had significant adverse price

effects on domestic wire rod prices over the period of investigation. 

 

C. Bratsk Analsyis 

The Federal Circuit in Bratsk and Mittal held that the Commission is required when considering

present material injury, in certain circumstances, to undertake a particular kind of causation analysis,

albeit without reliance on presumptions or rigid formulas.24 As explained below, I conclude based on my

Bratsk analysis that the domestic industry is not suffering present material injury by reason of subject

imports.25 In accordance with post-Bratsk Federal Circuit precedent, I have treated all non-Trinidadian

imports as non-subject imports for purposes of this analysis.26 

As a threshold matter, I find that the Bratsk triggering factors are satisfied. The first triggering

factor is that “commodity products” must be “at issue” in an investigation.27 In Bratsk the Federal

Circuit stated that a commodity product is “generally interchangeable regardless of its source.”28 The

wire rod at issue in this investigation is the subject wire rod imported from Trinidad and Tobago. As

stated earlier, wire rod of similar quality and uses is generally interchangeable regardless of source.29

Although there are specialized types of wire rod from some sources that may not be readily

interchangeable with wire rod from other sources, the subject imports were concentrated heavily in low

and high carbon industrial quality wire rod during the period of investigation.30 These products are

standardized, interchangeable products that compete on the basis of price and are available from many

suppliers in the U.S. market. Thus, I find the subject imports from Trinidad and Tobago to be commodity

products for Bratsk purposes.

 24 I refer to this analysis as the Bratsk analysis. 

 25 Although I have considered all of the impact factors set forth in 19 U.S.C. § 1677 (7)(C)(iii), they do not

affect the outcome of the analysis in this section. 

 26 As discussed in the background section of the majority opinion, after being affirmed by the CIT, the

Commission’s original determination in this case was appealed to the Federal Circuit. On appeal, the Federal Circuit

held that “[b]ecause CBERA required the Commission to treat Trinidad and Tobago's imports separately from all

other imports, our holding in Bratsk indicates that, in the present case, the ‘Commission is required to make a

specific causation determination and in that connection to directly address whether [other LTFV imports and/or

fairly traded imports] would have replaced [Trinidad and Tobago’s] imports without any beneficial effect on

domestic producers.’” Caribbean Ispat, 450 F. 3d at 1341. In other words, in performing a Bratsk analysis, other

non-cumulated LTFV imports must be treated as fairly traded imports. I have referred to other LTFV imports and/or

fairly traded imports as “non-Trinidadian” imports. 

 27 Bratsk, 444 F.3d at 1373.

 28 Bratsk, 444 F.3d at 1371.

 29 CR at I-7; PR at I-6. 

 30 There were also smaller volumes of shipments of subject imports in the welding quality and “all other” wire

rod categories. Again, wire rod of similar quality and similar applications is generally interchangeable regardless of

source, and there is no indication in the record that these products would not be available from non-Trinidadian

producers shipping wire rod in those categories. 

26
The second triggering factor is that “fairly traded, price competitive, non-subject imports” are in

the market.31 Price-competitive, non-Trinidadian imports were a significant factor in the U.S. market

during the period of investigation. Non-Trinidadian imports were *** percent of total apparent U.S.

consumption in 1999, *** percent in 2000, and *** percent in 2001.32 U.S. shipments of non-Trinidadian

imports in the low and high carbon industrial quality categories were *** short tons in 1999, *** short

tons in 2000, and *** short tons in 2001.33 Non-Trinidadian imports from Brazil, Indonesia, Mexico,

Moldova, and Ukraine, which were concentrated in low carbon industrial quality wire rod, or low and

high carbon industrial quality wire rod, undersold the domestic like product in the majority of available

price comparisons during the annual periods examined.34 Thus, I find that price-competitive, nonTrinidadian imports were a significant factor in the U.S. market during the period of investigation. 

Having found that the threshold criteria under Bratsk are satisfied, I further find that, had the

subject imports from Trinidad and Tobago exited the U.S. market during the period of investigation, nonTrinidadian imports would have replaced them without the domestic industry benefitting from the

absence of the subject imports. The volume of subject imports was 355,089 short tons at its peak in 2001. 

Producers in Brazil, Indonesia, Mexico, Moldova, and Ukraine had excess capacity of *** short tons in

1999, *** short tons in 2000, and *** short tons in 2001; they had end-of-period inventories in the

aggregate of *** short tons in 1999, *** short tons in 2000, and *** short tons in 2001.35 Moreover, in

2001, there were *** short tons of U.S. inventories of imports from these countries, primarily from

Moldova and Ukraine.36 Foreign producers in these countries demonstrated a strong interest in the U.S.

market and an ability quickly to shift exports to the U.S. market.37 

Additionally, wire rod is produced worldwide by many producers. Over *** short tons of wire

rod were produced in 2000 in countries that were not subject to the Commission’s 2002 final

investigations.38 Reporting importers’ shipments of low and high carbon industrial quality wire rod from

sources other than the imports under investigation were substantial; they were *** short tons in 1999, ***

short tons in 2000, and *** short tons in 2001.39

 31 Bratsk, 444 F.3d at 1373.

 32 Calculated from Supplement to Remand Staff Report, Memorandum INV-EE-002, at Table C-2b. 

 33 Calculated from CR/PR at Table D-2.

 34 CR/PR at Table D-2, Table V-10. 

 35 Calculated from CR/PR at Tables VII-1, VII-4, VII-5, VII-6, and VII-8.

 36 CR/PR at Table VII-9. Importer inventories were considerably lower in prior years. 

 37 The combined volume of subject imports from Brazil, Indonesia, Mexico, Moldova, and Ukraine increased

from *** short tons in 1999 to *** short tons in 2000, before decreasing to *** short tons in 2001. The increase in

import volume from these five countries from 1999 to 2000 was *** short tons. Calculated from CR/PR at Table

IV-1. 

 38 From 1999 to 2000, wire rod was produced in 41 countries that were considered non-subject countries in the

original 2002 investigations and seven countries that were subject to those investigations. Remand Staff Report

(Memorandum INV-DD-173 dated December 29, 2006) at Table I-4. Germany was included as a non-subject

country for purposes of this tabulation; its imports were found to be negligible, and the investigation with respect to

Germany was therefore terminated in the Commission’s final determinations.

 39 Calculated from CR/PR at Table D-2. These data are probably underreported, as total reported importer

shipments shown in Table D-2 accounted for only *** percent of total imports in 1999, *** percent in 2000, and ***

percent in 2001. Calculated from CR/PR at Table IV-1 and Table D-2. These data do not include imports from

Germany, as separate data were collected on imports from that country. 

27
 Given the consistent interest in the U.S. market shown by producers in Brazil, Indonesia, Mexico,

Moldova, and Ukraine and the substantial quantities of imports from other countries in the low and high

carbon industrial quality wire rod categories, there is every reason to believe that, in the absence of the

subject imports, non-Trinidadian imports would have increased to replace fully the volume and market

share of subject imports from Trinidad and Tobago. Producers in those countries have supplied the U.S.

market with wire rod comparable to that supplied by Caribbean Ispat, and they would thus likely have

taken advantage of its exit from the U.S. market.

The replacement of the subject imports with non-Trinidadian imports during the period would

likely have eliminated any benefit to the domestic industry. Turning to the pricing data, imports of

Products 1 and 2 -- low carbon industrial quality wire rod products -- from Brazil, Moldova, and Ukraine

were generally priced lower than subject imports from Trinidad and Tobago, while imports of these

products from Mexico were generally priced higher for Product 1 and sometimes higher/sometimes lower

for Product 2.40 Average unit values (AUVs) for several non-Trinidadian import sources that supplied the

U.S. market were lower than those for subject imports from Trinidad and Tobago, even though subject

imports were concentrated in low carbon industrial quality wire rod.41 Thus, the quarterly pricing data

and the AUV data indicate that the non-Trinidadian imports were generally competitive in terms of price

with the subject imports. 

Moreover, because the wire rod at issue is generally interchangeable regardless of source and

price is a significant factor in customers’ sourcing decisions, suppliers of non-Trinidadian imports,

particularly those that supply low carbon industrial quality wire rod, would have been motivated to sell in

the United States at the prices necessary to gain them market share. 

For the foregoing reasons, I do not find that the domestic industry is materially injured by reason

of subject imports from Trinidad and Tobago. 

 

II. NO THREAT OF MATERIAL INJURY BY REASON OF SUBJECT IMPORTS FROM

TRINIDAD AND TOBAGO

I determine that the domestic industry is not threatened by material injury by reason of subject

imports of wire rod from Trinidad and Tobago.42 Although subject imports from Trinidad and Tobago

increased over the period of investigation, the record does not reflect a likelihood of substantially

increased subject imports in the imminent future. 

Caribbean Ispat, the sole subject producer, increased its exports to the U.S. market in 2001, but it

projected slightly decreased exports to the U.S. market in 2002 and 2003.43 It projected increased

shipments to non-U.S. markets in 2002 and 2003, in particular to the Caribbean, Central America,

Mexico, and South America. It also projected increased shipments to its home market in 2002 and 2003,

although that market was relatively small. Thus, although Caribbean Ispat’s total shipments and total

 40 CR/PR at Tables V-3 and V-4. 

 41 Remand CR/PR at Table C-2b (see AUVs for Brazil, Egypt, Indonesia, Malaysia (lower in two out of three

years examined), Mexico, Moldova, South Africa, Turkey, Ukraine, and Venezuela). 

 42 In addressing threat, I have considered all factors under 19 U.S.C. § 1677(7) that are relevant to this

investigation. Statutory threat factors (I) (VII), and (VIII) are inapplicable.

 43 Although Caribbean Ispat’s exports to the U.S. market were higher in interim 2002 than in interim 2001, the

interim data in this investigation cover only one quarter, and Caribbean Ispat projected slightly lower exports in full

year 2002 relative to full year 2001. CR/PR at Table VII-7. 

28
exports were projected to be higher in 2002 and 2003 than in 2001, it is unlikely that it will divert

shipments from other markets to the U.S. market in the imminent future. 

Moreover, Caribbean Ispat projected that it would be operating at *** capacity utilization in 2002

and 2003. Thus, it has *** unused capacity with which to direct additional exports to the United States. 

Product-shifting is possible, but unlikely. Although Caribbean Ispat produced *** on the same

equipment as wire rod, *** accounted for only *** percent of its sales in 2001, with the comparable

figure for wire rod being approximately *** percent at that time.44 The record reflects steady production

capacity for wire rod, and there is no indication that Caribbean Ispat will shift its production allocations in

the immediate future. End-of period inventories of subject wire rod held in Trinidad and Tobago were

low relative to production and shipments, and they were projected to remain only slightly above 2001

levels in 2002 and 2003. Importers’ inventories of subject merchandise held in the United States were

very low.45

 Given Caribbean Ispat’s projections of steady production capacity, high capacity utilization

levels, slightly decreased exports to the United States, and increased shipments to other markets in the

imminent future, as well as its relatively low and steady inventories, subject import volume levels will

likely be similar to 2001 levels in the imminent future. 

 Subject imports from Trinidad and Tobago are likely to continue to undersell the domestic like

product and suppress U.S. prices as they did during the period of investigation. And many other suppliers

of comparable wire rod will likely continue to undersell or be price competitive with subject imports from

Trinidad and Tobago, including suppliers that would not be subject to antidumping duty orders. The

prices of subject imports from Trinidad and Tobago, however, are not likely to increase demand for

further subject imports, given that many other suppliers are equally or more price competitive. 

Furthermore, based on Trinidad and Tobago’s projected capacity utilization levels, significant additional

supply of wire rod from Trinidad and Tobago is simply not available to respond to any increase in

demand.

Nothing in the record indicates the likelihood of significant changes in the imminent future in the

dynamics of competition in the U.S. market. Thus, significant volumes of low and high carbon industrial

quality non-Trinidadian wire rod imports will likely continue to compete against subject imports from

Trinidad and Tobago and the domestic like product.46 Under these market conditions, subject imports

from Trinidad and Tobago are likely to have the same impact on the domestic industry in the imminent

future that they had during the period of investigation.

Based on the foregoing analysis, although I find the domestic industry to be vulnerable to future

injury given its deteriorating performance in 2001,47 I do not find that it is threatened with material injury

by reason of subject imports from Trinidad and Tobago. 

 44 Caribbean Ispat Foreign Producer Questionnaire at 2. 

 45 CR/PR at Table VII-7 and Table VII-9. 

 46 Colombia imposed an antidumping duty on low-carbon wire rod from Trinidad and Tobago in 1997, but I do

not find that this order will materially impact how subject imports will compete in the U.S. market given that the

order is scheduled to expire in December 2002. CR at VII-10-13; PR at VII-5. 

 47 The domestic industry’s performance deteriorated from 1999 to 2001. Its production, U.S. shipments, and

capacity utilization decreased from 1999 to 2000, then fell more sharply from 2000 to 2001. The industry’s

COGS/sales ratio increased until it exceeded *** in 2001. From 1999 to 2001, the industry experienced increasingly

negative operating margins. OINV Memorandum INV-Z-162, Table C-2a.

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CONCLUSION

For the reasons stated above, I determine that an industry in the United States is not materially

injured or threatened with material injury by reason of imports of wire rod from Trinidad and Tobago that

have been found by Commerce to be sold in the United States at less than fair value. 

 

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