118 F.Supp.2d 1250 (CIT. 2000), 98-05-01460, Taiwan Semiconductor Industry Ass'n v. United States

Docket Nº:98-05-01460.
Citation:118 F.Supp.2d 1250
Party Name:TAIWAN SEMICONDUCTOR INDUSTRY ASSOCIATION, et al., Plaintiffs, and Motorola, Inc., Plaintiff-Intervenor, v. UNITED STATES, Defendant, and Micron Technology, Inc. Defendant-Intervenor. SLIP OP. 00-113.
Case Date:August 29, 2000
Court:Court of International Trade
 
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Page 1250

118 F.Supp.2d 1250 (CIT. 2000)

TAIWAN SEMICONDUCTOR INDUSTRY ASSOCIATION, et al., Plaintiffs,

and

Motorola, Inc., Plaintiff-Intervenor,

v.

UNITED STATES, Defendant,

and

Micron Technology, Inc. Defendant-Intervenor.

SLIP OP. 00-113.

No. 98-05-01460.

United States Court of International Trade.

Aug. 29, 2000

Page 1251

White & Case, LLP, Washington, DC (Christopher F. Corr, Richard G. King, and Lyle Vander Schaaf), for Plaintiffs.

Lyn M. Schlitt, General Counsel; James A. Toupin, Deputy General Counsel; Michael Diehl, Office of the General Counsel, U.S. International Trade Commission, for Defendant.

Hale and Dorr LLP, Washington, DC (Gilbert B. Kaplan, Michael D. Esch, Paul W. Jameson, and Cris R. Revaz), for Defendant-Intervenor.

OPINION

POGUE, Judge.

Before the Court is the U.S. International Trade Commission's ("Commission") second remand determination concerning static random access memory semiconductors ("SRAMs") from Taiwan. In its first determination, the Commission concluded that the U.S. SRAM industry was materially injured by reason of imports of SRAMs from Taiwan that were sold at less than fair value ("LTFV"). See Static Random Access Memory Semiconductors from the Republic of Korea and Taiwan, Inv. Nos. 731-TA-761 & 762 (Final) (List 2, Doc. 395) (Apr. 9, 1998) at 37-38 ("Final Determination"). 1 The Court could not sustain the Commission's affirmative injury determination, however, because the Commission did not adequately explain how it avoided attributing to the subject imports the harmful effects from other known sources of injury. See Taiwan Semiconductor Indus. Ass'n v. United States, 23 CIT ----, ----, 59 F.Supp.2d 1324, 1336 (1999) ( "Taiwan I" ). Therefore, we remanded the Commission's affirmative determination for reconsideration consistent with the Court's opinion. See id.

On remand, the Commission again determined that the domestic industry was materially injured by reason of SRAMs from Taiwan. See Commission's Determ. on Remand (List 2, Doc. 406) (Aug. 30, 1999) at 1 ("First Remand Determination"). Absent greater explanation, however, the Court again could not sustain the Commission's remand determination. See Taiwan Semiconductor Indus. Ass'n. v. United States, 24 CIT 220, ----, 105 F.Supp.2d 1363, 1369 (CIT2000) ( "Taiwan II" ). 2 Therefore, we remanded the Commission's first remand determination for

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reconsideration consistent with the Court's opinion. See id.

In its second remand determination, the Commission now determines that, pursuant to section 735(b) of the Tariff Act of 1930, as amended, 19 U.S.C.§ 1673d(b) (1994), "an industry in the United States is not materially injured or threatened with material injury by reason of imports of [SRAMs] from Taiwan that have been found by the Department of Commerce to be sold in the United States at [LTFV]." Commission's Determ. on Remand (List 2, Doc. 411) (June 23, 2000) at 1 ("Second Remand Determination").

In reviewing the Commission's second remand determination, we are presented with the following issues: (1) whether the Commission conducted its second remand in accordance with this Court's remand order in Taiwan II and otherwise in accordance with law; and (2) whether the Commission's negative determination on remand is supported by substantial evidence.

Standard of Review

The Court must sustain the Commission's second remand determination 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).

Discussion

I. Did the Commission conduct its second remand proceedings in accordance with this Court's remand order in Taiwan II and otherwise in accordance with law?

The statute directs the Commission to "make a final determination of whether ... an industry in the United States ... is materially injured, or ... threatened with material injury ... by reason of [LTFV] imports...." 19 U.S.C. § 1673d(b). The six commissioners comprising the Commission vote to make this determination. See Taiwan II, 24 CIT at ----, 105 F.Supp.2d at 1364. As more fully described in Taiwan II, the details surrounding the Commission's voting record in its investigation of SRAMs from Taiwan are rather unique. See id. at 1364-65. Due to vacancies and a recusal, only two commissioners actually voted in the original determination. Commissioner Bragg found that the U.S. industry was materially injured by reason of LTFV imports of SRAMs from Taiwan, with Commissioner Miller dissenting. 3 See Final Determination at 33 n. 168. Accordingly, Commissioner Bragg's decision constituted an affirmative determination of the Commission pursuant to 19 U.S.C. § 1677(11). 4

"By the time of the remand, three new members had been appointed to the Commission: Commissioner Askey, Commissioner Koplan, and Commissioner Hillman." Taiwan II, 24 CIT at ----, 105 F.Supp.2d at 1365. Nevertheless, only Commissioner Bragg prepared written views on remand. See First Remand Determination at 1 n. 1. "The Commission ... submit[ted] [Commissioner] Bragg's remand views to the Court ... as its 'Views on Remand[.]' " Id.

In Taiwan II, Plaintiffs argued that the Commission's first remand determination was unlawful because it only constituted the views of Commissioner Bragg. See 24 CIT at ----, 105 F.Supp.2d at 1365. Plaintiffs maintained that all eligible commissioners should have participated in the remand determination, because the applicable statute, case law, and this Court's remand order in Taiwan I all compelled an institutional response. See id.

Upon reviewing 19 U.S.C. § 1516a(c)(3), the relevant case law, and our own remand order in Taiwan I, we agreed that all

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eligible commissioners should have participated meaningfully in the remand. See id. at ---, 105 F.Supp.2d at 1366. That is, the commissioners should have adequately considered the record evidence and the decision's merits before submitting the remand views of Commissioner Bragg as an institutional response of the Commission. See id. at ----, 105 F.Supp.2d at 1366-68. Because there was no clear evidence demonstrating that the full Commission had not meaningfully participated in the remand, however, the Court presumed that the commissioners properly discharged their official duties. See id. 5

Nevertheless, although Plaintiffs' arguments did not overcome the presumption of regularity supporting the acts of agency officials, see id. at ----, 105 F.Supp.2d at 1367, 1368-69,the Court noted, "[B]ecause we are remanding the decision for the reasons explained below, Plaintiffs will, in any event, be afforded the full Commission's reconsideration of the merits of the injury determination[,]" id. at ----, 105 F.Supp.2d at 1369.

It is now clear, however, that the new commissioners did not meaningfully participate in the first remand determination. In a motion for extension of time, Defendant stated that, in the first remand proceeding, the new "commissioners did not undertake to themselves reach independent determinations based on a review of the substantive record." Consent Mot. of Def. for Extension of Time to Resp. to Ct.'s Remand Order (Apr. 21, 2000) at 2; see also Second Remand Determination at 2-3.

In the second remand determination, "all participating [c]ommissioners engaged in a substantive review of the record." Second Remand Determination at 3. Commissioners Hillman, Koplan, and Okun adopted, 6 with some elaboration, the negative material injury and threat determinations made by Commissioner Miller in her dissent issued with the original final determination. 7 See id. Commissioner Miller reaffirmed her original views offered in her dissent. See id. Commissioner Bragg maintained her finding that the domestic industry was materially injured by reason of the Taiwanese subject imports and dissented. See id. n. 8. Therefore, in its second remand determination, the Commission determined, by a four to one margin, that the domestic industry was not materially injured or threatened with material injury by the Taiwanese imports.

Defendant-Intervenor, Micron Technology, Inc. ("Micron"), now argues that the Commission's second remand determination "constituted an improper de novo review of its Final Determination and thereby exceeded the parameters of the Court's second remand instructions in Taiwan II, violated the law of the case, and violated Micron's right to due process." Cmts. of Micron in Opp'n to Commission's Second

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Remand Determination ("Micron Cmts.") at 4-5.

According to Micron, in Taiwan II, the Court sustained the First Remand Determination in nearly all respects, only remanding "two fairly narrowly-drawn issues" for further explanation. See id. at 5-7. Micron is correct that the Court indicated that it could not sustain two findings absent greater explanation. We stated that we could not, without more, "conclude that the record as a whole support[ed] the Commission's apparent finding on remand that non-subject imports were not significantly competitive in the market segment in which domestic and Taiwanese SRAMs were concentrated." Taiwan II, 24 CIT at ----, 105 F.Supp.2d at 1378-79. We also held that, "inasmuch as the Commission's determination that the subject imports had significant price depressing effects relie[d] on its market segment finding, as explained, the Court [could not] sustain this determination." Id. at ----, 105 F.Supp.2d at 1379-80. In addition, we could not sustain the Commission's conclusion "that the instances of lost revenues for product 5 had a significant negative impact on the domestic industry's operating income" absent an explanation of how it was reasonable to rely on certain allegations in confirming lost revenues. Id. at ----, 105 F.Supp.2d at...

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