Slip Op. 05 - 37

 UNITED STATES COURT OF INTERNATIONAL TRADE

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CARIBBEAN ISPAT LIMITED, :

 Plaintiff, : v. : Court No. 02-00756 UNITED STATES, : Defendant. : 

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 Opinion & Order 

[Plaintiff's motion for judgment upon the 

 agency record denied; action dismissed.]

 Decided: March 22, 2005

Steptoe & Johnson LLP (Mark A. Moran, Matthew S. Yeo and

Evangeline D. Keenan) for the plaintiff.

Lyn M. Schlitt, General Counsel, James M. Lyons, Deputy 

General Counsel, and Irene H. Chen, U.S. International Trade 

Commission, for the defendant.

Collier Shannon Scott, PLLC (Paul C. Rosenthal, R. Alan Luberda and Kathleen W. Cannon) for intervenor-defendants Georgetown

Steel Company, LLC et al.

AQUILINO, Senior Judge: The above-encaptioned plaintiff

producer of steel in the Republic of Trinidad and Tobago ("RTT"),

which apparently has recently changed its corporate name to Mittal

Steel Point Lisas Limited, pleads for relief from that part of the

final determination of the U.S. International Trade Commission

("ITC") sub nom. Carbon and Certain Alloy Steel Wire Rod From

Brazil, Canada, Germany, Indonesia, Mexico, Moldova, Trinidad and
Court No. 02-00756 Page 2

1

 The "other subject" imports to which the plaintiff refers

came from Brazil, Canada, Germany, Indonesia, Mexico, Moldova and

Ukraine. The "non-subject" imports refer to Egypt, South Africa,

Turkey and Venezuela, as well as to those from "other sources".

Those "other sources" in the tables appended to that determination

refer to countries that exported wire rod which was not within the

scope of the investigation. 

2

 The plaintiff has also filed a motion for oral argument that

need not be granted, given the quality of its written submissions,

as well as of those on behalf of the parties in opposition to its

motion for judgment.

Tobago, and Ukraine, 67 Fed.Reg. 66,662 (Nov. 1, 2002), which concluded that the domestic U.S. industry is materially injured by

reason of its exports found to have been sold here at less than

fair value. Its complaint is that that determination is not

supported by substantial evidence on the record and the commissioners voting in the affirmative did not perform the proper "by reason

of" analysis that 19 U.S.C. §1673d(b)(1) requires. Whereupon the

plaintiff prays that this court remand the matter to the Commission

to

reconsider and explain fully whether the volume of

imports from Trinidad and Tobago was significant, had

significant price effects, and had a significant adverse

impact during the period of investigation in light of

other known and potential causes of injury, in particular, the effects of other subject and non-subject imports[1], and to provide an adequate explanation as to how

it ensured that it did not attribute the effects of other

subject and non-subject imports to imports from [RTT];

to quote from the proposed form of order accompanying its motion

for judgment upon the agency record that has been interposed2 pursuant to USCIT Rule 56.2. 
Court No. 02-00756 Page 3

3

 RTT is a designated beneficiary country under the Caribbean

Basin Economic Recovery Act ("CBERA"). See Pub. L. No. 98-67,

Title II, §212(a)-(b), 97 Stat. 384, 385 (Aug. 5, 1983); HTSUS

General Note 4(a) (1999). The rationale for this exception is that

the ITC undertake an injury analysis in a manner consistent with

the statute's goal of promoting economic growth and development in

the Caribbean. See H.R. Conf. Rep. No. 101-650, p. 135 (1990)("The

conferees emphasize that this provision is intended to benefit CBI

beneficiary countries, consistent with the specific objectives of

the CBI program"). But Congress did not intend that this provision

preclude an affirmative determination of material injury for a

CBERA beneficiary in an investigation covering imports from other

areas of the world, which themselves are required to be cumulated.

See, e.g., id.

The court's jurisdiction to decide this motion is based

upon 19 U.S.C. §1516a(a)(2)(A)(i)(II) and 28 U.S.C. §§ 1581(c),

2631(c). And, whatever the issues raised, defendant's determination must be affirmed unless it is "unsupported by substantial

evidence on the record, or otherwise not in accordance with law".

19 U.S.C. §1516a(b)(1)(B)(i). 

I

The imports from RTT were subjected to separate materialinjury analysis, as mandated by an exception to the ITC cumulation

requirement. That is, per 19 U.S.C. §1677(7)(G)(i)(I) when

petitions are filed on the same day, the Commission is required to

assess cumulatively the volume and effect of the subject merchandise from all countries, except that 

from any country designated as a beneficiary country

under the Caribbean Basin Economic Recovery Act (19

U.S.C. 2701 et seq.) for purposes of making a determination with respect to that country[.]

19 U.S.C. §1677(7)(G)(ii)(III). This exception applies to Trinidad

and Tobago3 herein and underlies plaintiff's complaint. See, e.g.,
Court No. 02-00756 Page 4

Connecticut Steel Corp. v. United States, 18 CIT 313, 314 and 852

F.Supp. 1061, 1063 n. 1 (1994) (affirming ITC negative preliminary

determination with respect to RTT); Certain Steel[] Wire Rod From

Canada, Germany, Trinidad and Tobago, and Venezuela, 63 Fed.Reg. 

14,475 (March 25, 1998)(negative final determination with regard to

RTT); Certain Steel Wire Rod From Canada, Germany, Trinidad and

Tobago, and Venezuela, 62 Fed.Reg. 63,958 (Dec. 3, 1997)(negative

final determination as to RTT). 

According to the plaintiff, only the ITC chairman undertook to determine whether imports from RTT "by themselves" caused

material injury, considering the much-larger volumes of lowerpriced subject and non-subject imports into the domestic market

during the period of investigation:

. . . Her analysis, which fully accounted for the

critical volume and pricing evidence . . ., led her to

dissent from the Commission Majority's affirmative determination on the grounds that imports from [RTT] did not

make a material contribution to the domestic industry's

injured condition.

Plaintiff's Opening Brief, p. 11. Further:

Chairman Okun's dissenting opinion is significant

for purposes of this appeal not for the ultimate conclusion she reached, but rather because it demonstrates the

type of analysis that must be undertaken to ensure

compliance with the legal obligation that injury from

other sources not be attributed to imports from Trinidad

and Tobago.

Id. at 23. Indeed, her ITC colleagues do not disagree with her

stated premise that, because RTT
Court No. 02-00756 Page 5

4

 Defendant's Appendix, List 1, Doc. No. 199, USITC Pub. 3546,

p. 39 (Oct. 2002) (footnote omitted).

5

 Id. at 37 (footnotes omitted).

is a beneficiary country under . . . CBERA[], imports

from Trinidad and Tobago may only be cumulated with

imports from another CBERA country for purposes of determining material injury, or threat thereof, by reason of

imports from the CBERA beneficiary country or countries.

[RTT] is the only subject country in these investigations

that is a CBERA country. Therefore, my analysis of

whether the domestic industry is materially injured or

threatened with material injury by reason of wire rod

from [RTT] is limited to a consideration of subject

imports from [there] alone.4

Rather, their views of the causation factors disagree. With regard

to volume, they note that, throughout the period of investigation,

RTT was the second or third largest source of subject wire rod

imports into the U.S. market, and find, in that "price sensitive

market", RTT's

absolute volume levels and market share, and their increase from 1999 to 2001, to be significant in absolute

terms and relative to production and consumption in the

United States.5

As for price,

subject imports from [RTT] are concentrated in the low to

medium carbon industrial quality wire rod category,

commodity products that are highly price sensitive.

Subject imports from Trinidad are highly substitutable

with the domestic product in that category, which reinforces the price competition between subject imports from

[RTT] and the domestic product.

Subject imports from [RTT] undersold comparable U.S.

products in 70.8 percent of quarterly comparisons from

1999 to 2001. For Products 1 and 2, both of which were

grades of industrial quality wire rod, subject imports
Court No. 02-00756 Page 6

6

 Id. at 37-38 (footnotes omitted).

from [RTT] undersold the domestic industry in 22 out of

26 comparisons by margins that ranged up to 11.0 percent.

The highest quantity of available price comparisons

between imports from [RTT] and the domestic product were

for Products 1 and 2. Eight purchasers rated the U.S.

product inferior (higher) in price to [RTT] subject imports . . ., and only one purchaser ranked the domestic

product superior (lower) in price to subject imports from

[RTT]. 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 find that subject imports from Trinidad and

Tobago have had significant adverse price suppressing

effects. Pricing pressure from the readily available and

increasing volume of lower-priced subject imports from

[RTT] prevented the domestic industry from raising prices

when its costs increased, particularly in the price-sensitive low carbon industrial quality wire rod category.

As stated earlier, [RTT] subject imports . . . are

concentrated in that category. The cost-price squeeze

experienced by the domestic industry described above was

exacerbated by its declining shipments and consequent

declining revenues, particularly during 2001, as lowerpriced imports from [RTT] increased in volume by 23.5

percent and gained market share at the expense of the

domestic industry.

We therefore find that there has been significant

price underselling by subject imports from Trinidad and

Tobago of the domestic product, and that subject imports

have suppressed prices of domestically produced wire rod

to a significant degree.6

Finally, regarding the impact of RTT volume and price, the Commission majority view is as follows:

. . . [D]uring the investigation period, the domestic

industry experienced growing operating losses, decreased

production, shipments, capacity and capacity utilization,
Court No. 02-00756 Page 7

7

 Id. at 38 (footnotes omitted).

declining employment indicators, increasing costs, and

suppressed prices. Trinidad and Tobago, which was ranked

as the second or third most significant subject import

supplier throughout the period, shipped increasing volumes of subject imports that undersold the domestic wire

rod in a majority of comparable periods. Thus, based on

the significant and increasing volume and market share of

subject imports from [RTT] in a declining market, the

significant price underselling, and significant price

suppression by these imports, and declining industry

indicators from 1999 to 2001, we find that the subject

imports from Trinidad and Tobago are having a significant

adverse impact on the domestic industry producing wire

rod.7

A

 The core of the controversy is the jurisprudence

interpreting the causation requisite of 19 U.S.C. §1673d(b)(1).

According to that section, an affirmative injury determination has

two elements, the first being that a domestic industry is materially injured, and the second that it be "by reason of" the imports

under investigation. See, e.g., Gerald Metals, Inc. v. United

States, 132 F.3d 716, 719-20 (Fed.Cir. 1997). In order to make

such findings, commissioners must determine whether factors listed

in 19 U.S.C. §1677(7)(B)(i) are significant, and, if so, decide

whether overall they indicate that the subject imports are causing

material injury to the domestic industry. See 19 U.S.C. §1677-

(7)(C).

The Court of Appeals for the Federal Circuit has

interpreted the "by reason of" language of section 1673d(b)(1) to

mean that "adequate evidence" on the record demonstrate that sub-
Court No. 02-00756 Page 8

ject imports contribute more than minimally or tangentially to the

injury sustained by the domestic industry. E.g., Taiwan Semiconductor Indus. Ass'n v. Int'l Trade Comm'n, 266 F.3d 1339, 1345

(Fed.Cir. 2001); Gerald Metals, Inc. v. United States, 132 F.3d at

722. With respect to such evidence, the ITC must present an "adequate explanation" of its differentiation of the injurious effects

of the RTT subject imports from those of other sources of injury.

Altx, Inc. v. United States, 26 CIT 709, 731 (2002), quoting Taiwan

Semiconductor Indus. Ass'n v. United States, 23 CIT 410, 414-17, 59

F.Supp.2d 1324, 1329-31 (1999), citing Uruguay Round Agreements

Act, Statement of Administrative Action ("SAA"), H.R. Doc. No. 103-

316, vol. 1, pp. 851-52 (1994). It is not, however, "required to

isolate the effects of subject imports from other factors contributing to injury" or to draw "bright-line distinctions" between the

impact of subject imports and other causes. E.g., Asociacion de

Productores de Salmon y Trucha de Chile AG v. U.S. Int'l Trade

Comm'n, 26 CIT 29, 43, 180 F.Supp.2d 1360, 1375 (2002) (citations

omitted). 

(1)

Relying on Gerald Metals and Taiwan Semiconductor, the

plaintiff seeks to compel analysis as to whether the imports from

RTT were "material" in view of other subject and non-subject

imports. See Plaintiff's Opening Brief, p. 9. Those cases,

however, only require that the ITC determine whether "other

factors" sever the casual link between RTT imports and injury to
Court No. 02-00756 Page 9

8

 There, the ITC considered non-subject imports those beyond

the scope of the investigation. Here, seemingly without explanation, imports from Egypt, South Africa, Turkey and Venezuela were

considered non-subject by the ITC even though they were within such

scope. See Notice of Preliminary Determination of Sales at Less

Than Fair Value: Carbon and Certain Alloy Steel Wire Rod from

Germany, 67 Fed.Reg. 17,384, 17,385 (April 10, 2002).

the domestic industry. In Taiwan Semiconductor, 266 F.3d at 1345,

the Federal Circuit affirmed a CIT remand because "the Commission

did not consider the injurious effects of . . . other factors" when

evaluating the harm caused by subject imports from Taiwan to the

domestic industry. Those "other factors" included non-subject 8 

imports, but not other dumped or subsidized subject imports. And,

likewise in Gerald Metals, 132 F.3d at 723, the court of appeals

reversed the CIT's holding because the ITC in that matter had

identified a significant presence of "fairly-traded" imports, as

opposed to those dumped or subsidized, but ignored their impact on

the domestic industry in its "by reason of" analysis.

As pointed out by reference to the SAA in defendant's

brief, when the Commission performs that analysis, it is required

to 

examine all relevant evidence, including any known

factors, other than dumped [or subsidized] subject

imports which at the same time are injuring the domestic

industry . . ..

Defendant's Opposition Brief, p. 11, quoting SAA, p. 851 (1994)

(brackets in original). Hence, the other subject imports herein

found by the International Trade Administration, U.S. Department of

Commerce ("ITA") to have been either subsidized or sold in the
Court No. 02-00756 Page 10

9

 This is not post-hoc rationalization by the defendant,

rather the SAA is an authoritative interpretation of the Uruguay

Round agreements. Compare SAA, p. 656 with Plaintiff's Reply

Brief, pp. 8-12. And even though the defendant admits that it did

compare the subject imports from Israel with those from China in

Pure Magnesium From China and Israel, 66 Fed.Reg. 58,162 (Nov. 20,

2001), "each injury investigation is sui generis". Citrosuco

Paulista, S.A. v. United States, 12 CIT 1196, 1209, 704 F.Supp.

1075, 1087 (1988), quoting Armstrong Bros. Tool Co. v. United

States, 84 Cust.Ct. 102, 115, C.D. 4848, 489 F.Supp. 269, 279

(1980). Furthermore, the causation analysis in that determination

does not set a precedent for any future investigation. See, e.g.,

Gerald Metals, Inc. v. United States, 22 CIT 1009, 1015, 27

F.Supp.2d 1351, 1357 (1998)("the antidumping statute on its face

does not compel a single method for analyzing causation, so long as

the requirements of 19 U.S.C. §1677(7)(B)-(C) are met"). 

United States at less than fair value are excluded from those

"other factors" that the commissioners are required to take into

account.9

The same rationale applies to the imports from Turkey

which were improperly categorized as non-subject by the ITC and

subsequently in plaintiff's motion. That is, those imports were

within the scope of the investigation, albeit dismissed therefrom

because the ITA found their rate of subsidization to be de minimis

within the meaning of 19 U.S.C. §§ 1671b(b)(4) and 1671d(a)(3).

See Final Negative Countervailing Duty Determination: Carbon and

Certain Alloy Steel Wire Rod from Turkey, 67 Fed.Reg. 55,815 (Aug.

30, 2002). But that subsequent, statutorily-mandated determination

does not exclude those imports from investigation.

(2)

The only remaining claim raised herein is whether the ITC

failed to compare RTT subject imports with those not dumped or
Court No. 02-00756 Page 11

10 In response to plaintiff's suggestion that attribution of

injury is misplaced, e.g., imports from Egypt, South Africa and

Venezuela, those imports were found to be negligible within the

meaning of 19 U.S.C. §§ 1673b(a) and 1677(24)(A)(i)(I). See Carbon

and Certain Alloy Steel Wire Rod From Brazil, Canada, Egypt,

Germany, Indonesia, Mexico, Moldova, South Africa, Trinidad and

Tobago, Turkey, Ukraine, and Venezuela, 66 Fed.Reg. 54,539 (Oct.

29, 2001). 

subsidized.10 According to the case law cited above, the Commission must not attribute the effects caused by other sources of

injury to those caused by subject imports from a country like

Trinidad and Tobago. Here, the plaintiff asserts that there was

"critical evidence" contradicting the ITC's finding of

"significance" with respect to the volume of RTT imports.

Plaintiff's Opening Brief, pp. 20-21. Counsel depict that evidence

in a table with four distinct column headings labeled from left to

right: "Other Subject Imports", "Non-Subject Imports", "Subject +

Non-Subject", and "Trinidad & Tobago". Id. at 21 (boldface in

original). A comparative analysis follows therein, where the data

corresponding to the column heading " Trinidad & Tobago" are compared to those in the other columns.

But this comparison exposes plaintiff's paradox. That

is, the ITC is not required to compare "Other Subject Imports" and

"Non-Subject Imports", together or separately, with "Trinidad and

Tobago". And even though non-subject imports must be examined as

an "other factor", this does not mean that they will be determinative, or even relevant, to the volume, price effects, or adverse
Court No. 02-00756 Page 12

11 See 19 U.S.C. §1677(7)(C)(i). Compare Plaintiff's Opening

Brief, p. 22:

. . . The Commission Majority failed to consider whether

[RTT']s import volumes or market share, or any growth in

those trends over the POI, were independently significant

given the dominant presence of other subject and nonsubject imports and the trends in such imports. 

A "trend" analysis, however, is irrelevant to a finding of

current material injury. See SAA, p. 883 (comparing standards for

material injury and threat of such injury). Instead, it more

appropriately applies to a "threat" analysis under 19 U.S.C.

§1677(7)(F). See, e.g., Asociacion de Productores de Salmon y

Trucha de Chile AG v. U.S. Int'l Trade Comm'n, 26 CIT 29, 43, 180

F.Supp.2d 1360, 1375 (2002), citing SAA at 885; Bando Chemical

Industries, Ltd. v. United States, 16 CIT 133, 135, 784 F.Supp.

224, 225 (1992).

impact the ITC is required to consider. For example, the analysis

the ITC is required to perform is whether the volume of imports

from RTT itself was significant in causing material injury to the

domestic industry during the period of investigation.11 And, if

that analysis is substantiated by evidence on the record, the court

may not re-weigh that evidence or substitute its analysis for that

of the agency. E.g., USEC, Inc. v. United States, 25 CIT 49, 54,

132 F.Supp.2d 1, 6 (2001), aff'd, 34 Fed.App'x 725 (Fed.Cir. 2002).

Here, it is self-evident from the data compiled in the

tables attached to the ITC's determination, and incorporated by

reference thereto in the majority's published views, that the

commissioners have found more than an adequate basis for them. See

USITC Pub. 3546, pp. 36-38. See also SAA, p. 892, citing Ceramica

Regiomontana, S.A. v. United States, 810 F.2d 1137, 1139 (Fed.Cir.
Court No. 02-00756 Page 13

1987), quoting Bowman Transportation, Inc. v. Arkansas-Best Freight

System, Inc., 419 U.S. 281, 286 (1974):

. . . Existing law does not require that an agency make

an explicit response to every argument made by a party,

but instead requires that issues material to the agency's

determination be discussed so that the "agency's path

[sic] may reasonably be discerned" by a reviewing court.

See, e.g., Consolo v. Federal Maritime Comm'n, 383 U.S. 607, 620

(1966); Matsushita Elec. Indus. Co. v. United States, 750 F.2d 927,

933 (Fed.Cir. 1984); Bando Chemical Industries, Ltd. v. United

States, 16 CIT 133, 136, 787 F.Supp. 224, 226 (1992) ("it is []

true that a record may support several acceptable alternatives").

The law is well-settled that it is

within the Commission's discretion to make reasonable

interpretations of the evidence and to determine the

overall significance of any particular factor or piece of

evidence.

Maine Potato Council v. United States, 9 CIT 293, 300, 613 F.Supp.

1237, 1244 (1985). And that is what occurred here with regard to

each of the ITC majority's "significant" findings. See USITC Pub.

3546, pp. 36-38.

The only conclusion the court can extrapolate from the

evidence referred to in plaintiff's papers and Chairman Okun's

dissenting view is that there may be additional causes of, or

reasons for, the domestic industry's material injury. Cf. SAA, p.

885:
Court No. 02-00756 Page 14

. . . While [other] factors . . . 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.

But this does not preclude a determination that the subject imports

from Trinidad and Tobago caused material injury to the domestic

industry. See, e.g., Nippon Steel Corp. v. United States, 26 CIT

911, 936 and 223 F.Supp.2d 1349, 1371 n. 31 (2002) ("there may be

more than one sufficient cause of material injury"), rev'd on other

grounds, 345 F.3d 1379 (Fed.Cir. 2003). If the court were to

accept plaintiff's pressing of Chairman Okun's dissenting view,

then the ITC's material-injury analysis with respect to the cumulated subject imports also would be tenuous. But surely, neither

the plaintiff nor the chairman requests reconsideration of that

determination. 

II

In view of the foregoing, plaintiff's motion for judgment

upon the agency record cannot be granted; and this action should

therefore be dismissed. Judgment will enter accordingly.

So ordered.

Decided: New York, New York

March 22, 2005

 Thomas J. Aquilino, Jr. 

 Senior Judge