Mittal Steel Point Lisas Ltd. v. United States

2010 CIT 32

• Court: United States Court of International Trade
• Decided: March 29, 2010
• Docket: 02-00756
• Status: Published

Opinion

Slip Op. 10 - 32

UNITED STATES COURT OF INTERNATIONAL TRADE

- - - - - - - - - - - - - - - - - - - x MITTAL STEEL POINT LISAS LIMITED, :

Plaintiff, :

v. : Court No. 02-00756 UNITED STATES, : Before: Senior Judge Aquilino Defendant, : -and- : GERDAU AMERISTEEL CORP. et al., : Intervenor-Defendants. - - - - - - - - - - - - - - - - - - -x

ORDER

The U.S. Court of Appeals for the Federal Circuit

(“CAFC”) having misread this court’s opinion herein sub nom.

Caribbean Ispat Ltd. v. United States, 29 CIT 329, 366 F.Supp.2d

1300 (2005), to the effect that it “prohibited” the defendant

International Trade Commission (“ITC”) from “considering the

effects of LTFV imports of non-CBERA countries when it assessed

imports from Trinidad and Tobago” [Caribbean Ispat Ltd. v.

United States, 450 F.3d 1336, 1341 (Fed.Cir. 2006)] and having

thereupon vacated this court’s judgment of dismissal and

remanded the matter for the ITC to “make a specific causation

determination and in that connection . . . directly address Court No. 02-00756 Page 2

whether [other LTFV imports and/or fairly traded imports] would

have replaced [Trinidad and Tobago’s] imports without any

beneficial effect on domestic producers”, id., quoting from

Bratsk Aluminum Smelter v. United States, 444 F.3d 1369, 1373

(Fed.Cir. 2006); and this court having entered an order of

remand in haec verba, 30 CIT 1519 (2006); and the ITC in

compliance with that order having determined that an industry in

the United States is not materially injured or threatened with

material injury by reason of imports of certain wire rod from

Trinidad and Tobago that is sold in the United States at less

than fair value; and this court having affirmed that

determination sub nom. Mittal Steel Point Lisas Ltd. v. United

States, 31 CIT 1041, 495 F.Supp.2d 1374 (2007), and entered an

amended final judgment of dismissal; and the intervenor-

defendants having appealed therefrom and induced the CAFC to

opine, among other things, Mittal Steel Point Lisas Ltd. v.

United States, 542 F.3d 867, 877 (Fed.Cir. 2008), that it does

not regard the decision in Bratsk as requiring the Commission to presume that producers of non-subject goods would have replaced the subject goods if the subject goods had been removed from the market. Although we stated there, and reaffirm here, that the Commission has the responsibility to consider the causal relation between the subject imports and the injury to the domestic injury, that responsibility does not translate into a presumption of replacement without benefit to the domestic industry[] Court No. 02-00756 Page 3

and also that the “problem may stem from a lack of sufficient

clarity in [its] prior opinion”, 542 F.3d at 879; and the CAFC

having determined to vacate yet again this court’s judgment of

dismissal, notwithstanding the ITC’s “scrupulous attention to

the terms of this court’s remand instructions”, id., and remand

the matter yet again “for further consideration of the material

injury issue in light of [it]s opinion” and also “for further

proceedings with respect to the threat of material injury”, id.;

and the mandate of the CAFC having issued in regard thereto; and

the Clerk of this court having reopened this matter on March 24,

2010; Now therefore, after due deliberation, it is

ORDERED that this matter be, and it hereby is,

remanded to the defendant International Trade Commission, which

may have until June 25, 2010 to attempt to comply with the

CAFC’s reasoning, as set forth in its foregoing, more recent

opinion, and to report to this court any results of this

mandated remand; and it is further hereby

ORDERED that the other parties hereto have until July

30, 2010 to file comments on any such results.

Dated: New York, New York March 29, 2010

/s/ Thomas J. Aquilino, Jr. Senior Judge