744 F.2d 1556 (Fed. Cir. 1984), 84-692, Atlantic Sugar, Ltd. v. United States

Docket Nº:Appeal Nos. 84-692, 84-709.
Citation:744 F.2d 1556
Party Name:ATLANTIC SUGAR, LTD., et al., Appellees, v. The UNITED STATES and Amstar Corporation, Appellants.
Case Date:September 25, 1984
Court:United States Courts of Appeals, Court of Appeals for the Federal Circuit

Page 1556

744 F.2d 1556 (Fed. Cir. 1984)

ATLANTIC SUGAR, LTD., et al., Appellees,


The UNITED STATES and Amstar Corporation, Appellants.

Appeal Nos. 84-692, 84-709.

United States Court of Appeals, Federal Circuit

September 25, 1984

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Michael H. Stein, Washington, D.C., argued for appellant. With him on the brief were Michael P. Mabile, Asst. General counsel and William E. Perry, Washington, D.C.

Thomas P. Ondeck, Washington, D.C., argued for appellant, Amstar Corporation. With him on the brief was B. Thomas Peele, Washington, D.C.

Roger D. Chesley, Washington, D.C., of counsel.

Roger A. Clark, Washington, D.C., argued for appellee. With him on the brief was Robert V. McIntyre, Washington, D.C.

Before MILLER, Circuit Judge, COWEN, Senior Circuit Judge, and SMITH, Circuit Judge.

EDWARD S. SMITH, Circuit Judge.

In this antidumping case, appellants, the United States (Government) and Amstar Corporation (Amstar), appeal from a Court of International Trade decision reversing an affirmative determination by the U.S. International Trade Commission (ITC) of regional industry injury, and vacating the resulting antidumping order. We reverse and reinstate the antidumping order.


We address two issues: (1) whether the lower court erred as a matter of law in holding that the aggregate data for Revere Sugar Corporation (Revere) did not constitute "best information available"; 1 and (2) whether the lower court erred in finding that the ITC injury determination was unsupported by substantial evidence on the record.

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We have before us the most recent 2 of five Court of International Trade decisions 3 concerning this Canadian sugar antidumping case. The case began in March 1979 when United States sugar producer Amstar filed an antidumping petition with the U.S. Treasury Department, alleging injury by reason of "dumped" imports of Canadian sugar (imports sold at less than fair value) and requesting relief in the form of antidumping duties on those imports. 4 Treasury exercised its right, under the law then in effect, to refer the case to the ITC for a preliminary injury assessment. In May 1979 the ITC determined that sufficient evidence of injury existed to warrant Treasury's continued investigation of the alleged dumping. In reaching this determination the ITC focused on data for injury to a regional, as opposed to a nationwide, sugar industry located in the Northeastern/Great Lakes area.

In early November 1979 Treasury found sales at less than fair value, with dumping margins on the Canadian sugar of approximately 20 percent. Consequently, the ITC promptly instituted its final injury investigation. Then, on January 1, 1980, the Trade Agreements Act of 1979 5 became effective, providing 75 days for the ITC to make a final material injury determination in any pending antidumping case. 6 More importantly, the new law specified precisely the criteria which the ITC was to apply in defining a regional industry: 7

(C) Regional industries

In appropriate circumstances, the United States, for a particular product market, may be divided into 2 or more markets and the producers within each market may be treated as if they were a separate industry if--

(i) the producers within such market sell all or almost all of their production of the like product in question in that market, and

(ii) the demand in that market is not supplied, to any substantial degree, by producers of the product in question located elsewhere in the United States.

In such appropriate circumstances, material injury * * * of an industry may be found to exist with respect to an industry * * * if there is a concentration of * * * dumped imports into such an isolated market and if the producers of all, or almost all, of the production within that market are being materially injured * * * by reason of the * * * dumped imports.

During the final injury investigatory period the ITC staff endeavored to collect the extensive data necessary to determine whether a northeastern states' sugar industry existed which satisfied the above new, strict statutory definition, and, if so, what should be the scope of the region. This involved, among many other things, mailing questionnaires to the seven sugar producers in the suspected region, including the second largest, Revere. Revere's questionnaire, dated January 7, 1980, showed that Revere had three plants, located in Brooklyn, Boston, and Chicago. Revere

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gave the ITC confidential firm-wide data (i.e., aggregated for all three plants) covering such information as Revere's production, sales, distribution of net sales (broken out by northeastern as opposed to other states), and profit-and-loss and other financial data.

By the end of January 1980 the ITC staff, in its report containing preliminary findings of fact, proposed an 11-state northeastern area excluding Illinois and Maryland. This meant that Revere's Chicago plant would be excluded from the region, as well as the Baltimore and Chicago plants of the proposed region's largest producer, Amstar. The ITC staff then worked with Amstar to segregate its data to exclude its plants outside the region. The staff did not do this with Revere, but toward the end of the investigatory period the principal staff investigator did telephone Revere to inquire about individual plant data. According to an affidavit by that investigator, Revere officials told him that "separate data on individual plant operations were not readily available." He also stated that Revere's president told him that the Chicago operation was "relatively minor" compared with the Boston and Brooklyn operations and that the Chicago operations were "not significantly different" from those of the other two plants.

The ITC staff presented its final report to the commissioners, and on March 6, 1980, they unanimously determined that an industry in the United States was being materially injured by reason of imports of sugars and syrups from Canada, which Treasury had determined to be sold in the United States at less than fair value. The commissioners defined the sugar "industry" according to the new statutory criteria and as recommended by the staff--the 11-state northeastern area. However, in the data on which the commissioners based their decision were the firm-wide Revere figures, which included the extra-regional Chicago plant. In Atlantic Sugar V the Court of International Trade held inclusion of the Chicago plant data to be contrary to law and to cause the ITC's final injury determination to be unsupported by substantial evidence, resulting in that court's vacating the final antidumping order. We review these aspects of that court's decision. 8


The statute specifies that the standard of judicial review of a final ITC material injury determination in an antidumping case is whether that determination is "unsupported by substantial evidence on the record, or otherwise not in accordance with law." 9 We therefore apply the substantial evidence standard in reviewing the ITC's factual determination that an industry in the United States was materially injured by reason of Canadian sugar sold in the United States at less than its fair value. 10 We address first, however, the alleged error of law concerning the trial court's rejection of the aggregate data for Revere's three plants as not in accordance with law.

  1. Best Information Otherwise Available

    The Government and Amstar contend that the ITC did not err in including the Chicago plant data in its injury determination, because the aggregate Revere data was the "best information otherwise available," as allowed by statute: 11

    (b) Determinations to be made on best information available

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    In making their determinations under this subtitle, the * * * Commission shall, whenever a party or any other person refuses or is unable to produce information requested in a timely manner and in the form required, or otherwise significantly impedes an investigation, use the best information otherwise available.

    Atlantic Sugar, a Canadian sugar producer, counters that the ITC should not benefit from the best information available rule because, to summarize, it was the ITC's own fault that Revere was "unable to produce [the] information requested in a timely manner and in the form required," as the statute states. The lower court rejected the applicability of the rule because the fact that segregated Revere data was not readily available "cannot be said to rise to the level of a refusal or inability to provide the requested information or a significant impediment, particularly given the critical importance of regional data to a regional investigation." 12

    Before analyzing further the parties' and lower court's views, we examine the rule itself, set forth above. We note the use of the mandatory term "shall," indicating that the ITC must use the best information otherwise available in the enumerated circumstances. This is reflected in the legislative history: 13

    [This section] would provide that whenever a party or any other person refuses or is unable to produce information in a timely manner and in the form required, or otherwise significantly impedes an investigation, * * * the ITC must use the best information otherwise available. [Emphasis supplied.]

    We also note the context of the best information rule: it is set within the extremely short statutory deadlines which the Congress built into the new antidumping law 14 and the resultant lack of time which the ITC has to wield its little-used subpoena power. 15 Thus cooperation by the parties to the investigation is essential, as well as diligence by the ITC staff, to gather the data needed for an accurate determination. Noncooperation by...

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