United States Court of Appeals for the Federal Circuit 

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CARIBBEAN ISPAT LIMITED 

(now known as Mittal Steel Point Lisas Limited), 

 Plaintiff-Appellant, 

v. 

UNITED STATES, 

 Defendant-Appellee, 

and 

GEORGETOWN STEEL COMPANY, LLC, 

NORTH STAR STEEL TEXAS, INC., 

KEYSTONE CONSOLIDATED INDUSTRIES, INC. 

and GERDAU AMERISTEEL CORP., 

Defendants-Appellees. 

Mark A. Moran, Steptoe & Johnson LLP, of Washington, DC, argued for plaintiffappellant. With him on the brief were Matthew S. Yeo and Evangeline Keenan. 

Jonathan J. Engler, Attorney, Office of the General Counsel, United States 

International Trade Commission, of Washington, DC, argued for defendant-appellee. 

With him on the brief were James M. Lyons, General Counsel and Andrea C. Casson, 

Assistant General Counsel For Litigation. Of counsel was Karen Veninga Driscoll. 

Kathleen W. Cannon, Collier Shannon Scott PLLC, of Washington, DC, argued 

for defendants-appellees. With her on the brief were Paul C. Rosenthal and R. Alan 

Luberda. 

Appealed from: United States Court of International Trade 

Senior Judge Thomas J. Aquilino, Jr. 
United States Court of Appeals for the Federal Circuit

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CARIBBEAN ISPAT LIMITED 

(now known as Mittal Steel Point Lisas Limited), 

Plaintiff-Appellant, 

v. 

UNITED STATES, 

Defendant-Appellee. 

and 

GEORGETOWN STEEL COMPANY, LLC, 

NORTH STAR STEEL TEXAS, INC., 

KEYSTONE CONSOLIDATED INDUSTRIES, INC. 

and GERDAU AMERISTEEL CORP., 

 Defendants-Appellees. 

___________________________ 

DECIDED: May 4, 2006 

___________________________ 

Before BRYSON, LINN, and PROST, Circuit Judges. 

BRYSON, Circuit Judge. 

In August 2001 several domestic producers of steel wire rod filed petitions with 

the Department of Commerce and the International Trade Commission alleging that 

imports of steel wire rod from 12 countries, including Trinidad and Tobago, benefited 

from countervailing subsidies or were sold at less than fair value (“LTFV”). The 
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petitioners further alleged that the imports from those countries, both collectively and 

from each country separately, had caused material injury to the domestic wire rod 

industry. Certain preliminary and final determinations relating to the petition have been 

challenged in various proceedings in the Court of International Trade and in this court. 

The present appeal is limited to imports from Trinidad and Tobago. In October 2002, 

the Commission determined that LTFV imports, collectively and from Trinidad and 

Tobago alone, had caused material injury to the domestic industry. Caribbean Ispat 

Limited, a Trinidadian producer of steel wire rod, sought review of that determination in 

the Court of International Trade, but the court upheld the Commission’s determination. 

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

Caribbean Ispat appeals from that decision. 

I 

 In an antidumping investigation such as the one in this case, the Commission is 

required to determine whether an industry in the United States is materially injured or 

threatened with material injury by reason of the imports that are the subject of the 

investigation. 19 U.S.C. § 1673d(b)(1). Section 1677(7) sets forth the factors and 

methods the Commission is to use in making a materiality determination. The statute 

requires the Commission, when making a materiality determination, to consider the 

volume of imports, the price effects of those imports, and the impact of those imports on 

the affected domestic industry. 19 U.S.C. § 1677(7)(B)(i). In addition to those factors, 

the Commission may consider “such other economic factors as are relevant to the 

determination.” Id. § 1677(7)(B)(ii). The effect of non-subject imports (i.e., the flow of 

fairly traded goods into the United States) is often a relevant “other economic factor” 
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that the Commission looks at when considering whether a particular domestic injury was 

caused by the subject imports (i.e., as opposed to having been caused by the fairly 

traded goods alone). 

Section 1677(7)(G)(i) sets forth the general rule that the Commission must 

cumulate imports from all countries that are subject to the investigation and that it must 

determine whether the impact of those cumulated imports is causing a material injury to 

the domestic industry. However, section 1677(7)(G)(ii) provides several exceptions to 

that general rule. One of those exceptions, mandated by the Caribbean Basin 

Economic Recovery Act (CBERA), 19 U.S.C. § 1677(7)(G)(ii)(III), exempts Caribbean 

nations from the cumulation rule and requires the Commission to analyze the volume, 

price effects, and impact of imports from Caribbean nations separately from those from 

all other countries. Because Trinidad and Tobago is the only Caribbean nation involved 

in the present investigation, CBERA required the Commission to assess Trinidad and 

Tobago’s imports individually. Caribbean Ispat’s appeal focuses on the application of 

CBERA to the Commission’s investigation of imports of steel wire rod from Trinidad and 

Tobago. 

II 

The primary dispute in this case pertains to the causation analysis. The parties 

disagree as to whether and how LTFV imports from non-CBERA countries are 

assessed in determining whether the domestic industry was materially injured “by 

reason of” imports from Trinidad and Tobago. The Commission contends, and the 

Court of International Trade held, that the relevant statutes prohibit the Commission 

from considering the effect of LTFV imports from non-CBERA countries when weighing 
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the impact of imports from Trinidad and Tobago.1

 Caribbean Ispat contends that 

CBERA requires the Commission to weigh the impact of imports from Trinidad and 

Tobago against the impact of all other imports (both LTFV and fairly traded imports), 

and to determine whether imports from non-CBERA countries are “so significant” as to 

render the impact of imports from Trinidad and Tobago immaterial. 

A 

In support of the argument that the statute prohibits the Commission from 

considering the effect of LTFV imports from non-CBERA countries, the Commission 

relies on the following passage from the Uruguay Round Agreements Act Statement of 

Administrative Action (URAASAA): 

Existing U.S. law and legislative history fully implement the causation 

standard of the 1979 [Tokyo Round] Codes. Thus, existing U.S. law fully 

implements [the causation provisions of the Agreement on Implementation 

of Article VI of the General Agreement on Tariffs and Trade 1994 

(Antidumping)]. [Those provisions] do include new language requiring 

WTO signatories to “examine all relevant evidence” including “any known 

factors, other than the dumped [or subsidized] imports which at the same 

time are injuring the domestic industry.” The obligations embodied in the 

new language are reflected in the existing statute and legislative history. 

H.R. Doc. No. 103-316, vol. 1, at 851-52 (1994), reprinted in 1994 U.S.C.C.A.N. 4040. 

In the Commission’s view, that passage limits the scope of the “other economic factors” 

the Commission may consider, pursuant to 19 U.S.C. § 1677(7)(B)(ii), when making a 

materiality determination. Because the URAASAA notes that existing law allows 

consideration of factors “other than the dumped imports,” the Commission argues that 

 

1

 The domestic steel wire rod producers do not advance this argument. 

Rather, they argue that the Commission properly accounted for non-CBERA imports 

when it concluded that Trinidad and Tobago’s imports caused material injury. 
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dumped imports from non-CBERA countries cannot be considered when determining 

whether a CBERA country caused material injury. 

That argument reads too much into the URAASAA’s brief discussion of 

causation. First, the passage does not speak to the unique circumstances of CBERA or 

other non-cumulation provisions. Second, we do not regard the above-quoted passage 

as Congress’s comprehensive and exclusive interpretation of section 1677(7)(B)(ii). 

The passage does not specifically reference that statute, and the plain language of 

section 1677(7)(B)(ii) suggests a broad grant of discretion in materiality determinations 

that allows the Commission to “consider such other economic factors as are relevant.” 

See also Angus Chem. Co. v. United States, 140 F.3d 1478, 1484 (Fed. Cir. 1998) 

(noting that the statute “permissively allows the Commission to consider other relevant 

factors as well, as the particulars of the case at hand may warrant”). In the present 

case, the Commission had authority to treat LTFV imports from non-CBERA countries 

as an “other economic factor,” just as the Commission ordinarily treats fairly traded 

imports as an “other economic factor” in dumping investigations that do not involve 

CBERA countries. See, e.g., Gerald Metals, Inc. v. United States, 132 F.3d 716, 723 

(Fed. Cir. 1997) (remanding because the “Court of International Trade failed to consider 

properly the presence of fairly-traded Russian imports in affirming the Commission’s 

determination of material injury by reason of the LTFV goods”). 

In addition to the argument based on the URAASAA, the Commission contends 

that permitting consideration of the effect of LTFV imports from non-CBERA countries 

would render the statute internally inconsistent. That is because CBERA allows the 

Commission to aggregate dumped imports from CBERA and non-CBERA countries 
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when assessing whether the imports from non-CBERA countries are causing a material 

injury to a domestic industry. Thus, the Commission argues, it would be illogical to 

compare the impact of imports from Trinidad and Tobago to the cumulated impact of all 

subject imports, because the cumulated impact includes the impact of imports from 

Trinidad and Tobago. 

The purported inconsistency is avoided by recognizing that the CBERA exception 

requires a separate and independent analysis of imports from CBERA countries to 

determine whether those imports are causing a material injury. That separate analysis 

is required regardless of whether non-CBERA countries are also analyzed in the same 

investigation. The fact that CBERA imports are factored into the analysis of cumulated 

imports has no bearing on the separate analysis the Commission is required to 

undertake to assess the impact of CBERA imports. 

The Commission also argues that, pursuant to Chevron U.S.A., Inc. v. Natural 

Resources Defense Council, Inc., 467 U.S. 837 (1984), we must defer to the 

Commission’s reasonable interpretation of the statute. The problem with that argument 

is that the interpretation advanced in the Commission’s brief in this case does not 

represent the Commission’s considered, consistent, or formal interpretation of section 

1677(7)(B)(ii). To the contrary, in a similar case the Commission has considered the 

effect of other LTFV imports when determining whether particular imports from a 

country subject to a similar non-cumulation provision caused a material injury to a 

domestic industry. See Pure Magnesium from China and Israel, USITC Pub. 3467, Inv. 

Nos. 701-TA-403, 731-TA-895-896, at 23 (Nov. 2001) (comparing the volume of 

dumped imports from Israel to the volume of dumped imports from China). Similarly, in 
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this case the Commission did not assert that it was barred from considering the effect of 

dumped goods from non-CBERA countries. Instead, that view was raised, for the first 

time, in the Commission’s brief to the Court of International Trade. 

Although Chevron deference is not strictly limited to agency decisions that are 

the result of formal rulemaking or adjudication, an interpretation that is advanced by 

counsel in the course of litigation—not accompanied by any indication that it is the 

considered policy of the agency—is not the sort of interpretation that Congress intended 

to carry the “force of law.” United States v. Mead Corp., 533 U.S. 218, 226-27 (2001); 

see also Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 212-13 (1988) (“We have 

never applied [Chevron deference] to agency litigating positions that are wholly 

unsupported by regulations, rulings, or administrative practice. . . . Congress has 

delegated to the administrative official and not to appellate counsel . . . .” (internal 

quotation marks omitted)). Thus, Chevron deference has no place in this case. 

Nor do we see any reason to accord deference under Skidmore v. Swift & Co., 

323 U.S. 134 (1944), to the interpretation advanced in the Commission’s brief in this 

litigation. The degree of deference to an agency’s interpretations of a statute in the 

course of administering its statutory responsibilities “has been understood to vary with 

circumstances, and courts have looked to the degree of the agency’s care, its 

consistency, formality, and relative expertness, and to the persuasiveness of the 

agency’s position.” Mead Corp. 533 U.S. at 228; see also Cathedral Candle Co. v. Int’l 

Trade Comm’n, 400 F.3d 1352, 1366 (Fed. Cir. 2005) (“[W]e believe the Supreme Court 

intends for us to defer to an agency interpretation of the statute that it administers if the 

agency has conducted a careful analysis of the statutory issue, if the agency’s position 
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has been consistent and reflects agency-wide policy, and if the agency’s position 

constitutes a reasonable conclusion as to the proper construction of the statute, even if 

we might not have adopted that construction without the benefit of the agency’s 

analysis.”). The argument proffered in the brief has none of those characteristics. In 

fact, the Commission’s analysis in Pure Magnesium from China and Israel suggests that 

the Commission has recently endorsed an approach that is at odds with the argument 

advanced in the brief. Moreover, as discussed above, we believe that the reasoning in 

support of that argument is unpersuasive. Accordingly, we see no reason to defer to 

the position taken in the brief under the Skidmore doctrine. 

Thus, the Court of International Trade erred by concluding that the Commission 

was prohibited from considering the effects of LTFV imports from non-CBERA countries 

when it assessed imports from Trinidad and Tobago. 

B 

Caribbean Ispat contends that “the Commission committed legal error because it 

did not evaluate whether the effects of [Trinidad and Tobago’s] imports were material in 

light of the vastly larger volumes of other subject imports.” Additionally, Caribbean Ispat 

contends that the Commission’s analysis “said literally nothing at all” about the effect of 

fairly traded imports. Caribbean Ispat asserts that if the Commission had properly 

considered LTFV and fairly traded imports from non-CBERA countries, the Commission 

would have had to conclude that the effects of those other imports were “so significant” 

and their presence so “dominant” as to render Trinidad and Tobago’s LTFV imports 

immaterial. The domestic steel rod producers argue that the Commission considered 

the effect of LTFV and fairly traded imports when it concluded that Trinidad and 
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Tobago’s imports were, themselves, having a significant adverse impact on the 

domestic industry. In light of this court’s recent decision in Bratsk Aluminum Smelter v. 

United States, No. 05-1213 (Fed. Cir. Apr. 10, 2006), however, we cannot uphold the 

Commission’s decision. 

In Bratsk, we addressed the “by reason of” standard, and explained that 

[w]here commodity products are at issue and fairly traded, price 

competitive, non-subject imports are in the market, the Commission must 

explain why the elimination of subject imports would benefit the domestic 

industry instead of resulting in the non-subject imports’ replacement of the 

subject imports’ market share without any beneficial impact on domestic 

producers. 

Id., slip op. at 7. 

In the present case, the Commission found a “high level of fungibility between 

subject imports from Trinidad and Tobago and the domestic product, and between 

subject imports from Trinidad and Tobago and imports from each of the other subject 

countries.” However, the Commission did not specifically address whether Trinidad and 

Tobago’s imports could or would be replaced by other imports so that the domestic 

industry would not benefit from the removal of Trinidad and Tobago’s imports from the 

U.S. market. Because 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.” Id., slip op. at 9. The Commission did not 

make that specific determination in this case. We therefore remand for further 
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consideration of the causation analysis in light of Bratsk and our discussion of CBERA 

in this opinion. 

VACATED AND REMANDED.