Opinion
Slip Op. 98-56. Court No. 95-06-00782.
April 28, 1998.
ORDER
The United States Court of Appeals for the Federal Circuit ("CAFC") has determined that "the statute [ 19 U.S.C. § 1677(7)] requires adequate evidence to show that the harm [to a domestic industry] occurred `by reason of' the LTFV [less than fair value] imports, not by reason of a minimal or tangential contribution to material harm caused by LTFV goods" and that "[g]iven the unique circumstances of this case, the record, without more, does not show that LTFV imports of pure magnesium from Ukraine were the reason for the harmful effects to the domestic magnesium industry." Gerald Metals v. United States, 132 F.3d 716, 722-23 (Fed. Cir. 1997).
The CAFC specifically concluded that "the Russian imports — both fairly-traded and LTFV — were perfect substitutes for each other, if not the exact same product." Id. at 720.
The CAFC also required reconsideration of the effect of the increase in the supply of pure magnesium on the global market as the cause for the closure of Dow's magnesium plant and the nature — penal or remedial — of the duties imposed in this case. Id. at 722-23.
Therefore, this case having been duly remanded to this Court, it is hereby
ORDERED that this Court's Judgment Order of August 21, 1996, granting Plaintiff's motion for judgment upon the agency record and dismissing this action is vacated; and it is further
ORDERED that the International Trade Commission's final determination in Magnesium from China, Russia, and Ukraine, 60 Fed.Reg. 26,456 (Int'l Trade Comm'n 1995) (final) is remanded to the International Trade Commission ("ITC"). The ITC is to reconsider its material injury finding in a way that is consistent with the legal standard articulated by the CAFC and that takes into account the existence and substitutability of fairly-traded Russian imports of pure magnesium and the increase in the market share of said imports during the period of investigation; and it is further
ORDERED that remand results are due on Tuesday, June 30, 1998; comments and responses are due on Tuesday, July 28, 1998; any rebuttal comments are due on Tuesday, August 11, 1998.