In 2006, the U.S. Court of International Trade ("CIT") and the U.S. Court of Appeals for the Federal Circuit ("Federal Circuit" or "CAFC") issued approximately 15 published decisions reviewing the U.S. International Trade Commission's ("Commission" or "ITC") determinations related to antidumping ("AD") or countervailing duty ("CVD") proceedings. These cases included several longstanding disputes, reflecting the recent trend for challenges to ITC decisions to entail multiple remands and several rounds of judicial review before final resolution. (1) The decisions included controversial CAFC rulings on the ITC's required analysis of the role of non-subject imports in its material injury determinations; resolution of a case which was expected to, but did not, decide whether the CIT may "reverse" a decision by the ITC; and numerous decisions addressing various aspects of the Commission's statutorily-mandated factors for assessing injury and causation in antidumping and CVD cases. In these cases, in general, the courts continued to reinforce the strong rule of deference to the agency's determinations. In addition, in 2006 the CIT issued two opinions addressing the constitutionality of certain Byrd Amendment provisions involving the ITC.
This article provides a survey of the most noteworthy 2006 judicial decisions related to ITC determinations in or related to antidumping and countervailing duty proceedings.
II. BRATSK ALUMINUM AND THE ROLE OF NON-SUBJECT IMPORTS IN THE COMMISSION'S INJURY ANALYSIS
The most notable, and certainly the most controversial decision, in an appeal of an ITC AD/CND determination during 2006 was the Federal Circuit's decision in Bratsk Aluminum Smelter v. United States. (2) The Court's articulation in that case of the requirement that the ITC make a specific determination regarding the impact of non-subject imports is already resonating in subsequent judicial opinions and Commission decisions and has even become the subject of proposed legislation.
In Bratsk, the CIT had previously sustained the ITC's affirmative material injury determination with respect to subject imports of silicon metal from Russia that the Commerce Department had found to be sold in the United States at less than fair value. (3) The sole issue before the CAFC was whether the administrative record established that material injury to the domestic industry was "by reason of" the subject imports. (4) Appellants, respondents in the underlying investigation, argued that the ITC was required by Gerald Metals, Inc. v. United States (5) to make a "specific determination as to whether the non-subject imports would simply replace the subject imports, with the same impact on domestic products, if the subject imports were excluded from the market." (6) The ITC had "made no such determination" and had found the CAFC's decision in Gerald Metals to be "factually distinguishable." (7)
The CAFC began its review by noting that the subject merchandise-silicon metal--was a commodity product for which price was the "primary consideration" and that during the period of investigation ("POI"), ten exporting countries, including Russia, had supplied silicon metal to the U.S. market. (8) The Court then reviewed its previous holdings in Gerald Metals and Taiwan Semiconductors Indus. Ass'n v. Int'l Trade Comm. (9) In Gerald Metals, a 1997 decision, the CAFC had held that where "fairly traded non-subject imports were substitutable for the ... subject imports and undersold the domestic product just as the subject imports had," the Commission must explain in its causation analysis "why domestic consumers would not have purchased the fairly-traded non-subject imports" in place of the subject imports. (10) Taiwan Semiconductors applied the Gerald Metals requirement with respect to the role of non-subject imports in the causation analysis, and upheld the Commission's negative injury determination, finding that "substantial evidence supports the fact that the United States market share was impacted largely by non-subject imports" and that the record did not show that the subject imports had caused material injury "in light of the dominant presence of non-subject imports in the market place. …