93 F.Supp.2d 1283 (CIT. 2000), 98-05-01460, Taiwan Semiconductor Industry Ass'n v. United States

Docket Nº:Court No. 98-05-01460.
Citation:93 F.Supp.2d 1283
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. 00-37.
Case Date:April 11, 2000
Court:Court of International Trade

Page 1283

93 F.Supp.2d 1283 (CIT. 2000)



Motorola, Inc., Plaintiff-Intervenor,




Micron Technology, Inc. Defendant-Intervenor.

Slip Op. 00-37.

Court No. 98-05-01460.

United States Court of International Trade.

April 11, 2000

Page 1284

White & Case, LLP (Christopher F. Corr, Richard G. King, and Amy E. Farrell) 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 (Gilbert B. Kaplan, Michael D. Esch, Paul W. Jameson, and Cris R. Revaz) for Defendant-Intervenor.


POGUE, Judge.

On June 30, 1999, the Court remanded this matter to the U.S. International Trade Commission ("Commission"). See Taiwan Semiconductor Indus. Ass'n v. United States, 23 CIT ----, 59 F.Supp.2d 1324 (1999)(" Taiwan I "). 1 In that decision, the Court reviewed Plaintiffs' USCIT Rule 56.2 motion for judgment on the agency record challenging the Commission's final determination that the industry in the United States producing static random access memory semiconductors ("SRAMs") was materially injured by reason of imports from Taiwan that were sold at less than fair value ("LTFV"). See id.

The Commission found in its final determination that "[t]he domestic industry's financial troubles [were] due in significant part to the price depressing effects of the subject imports from Taiwan on the domestic like product[.]" 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 ("Final Determination"). 2 The Commission, however, did not adequately explain how it avoided attributing to the subject imports the harmful effects from other known sources of injury; therefore, the Court remanded the determination to the Commission for reconsideration consistent with the Court's opinion. See Taiwan I, 23 CIT at ----, 59 F.Supp.2d at 1336.

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On remand, the Commission again determines that the domestic industry was materially injured by reason of LTFV imports of SRAMs from Taiwan. See Commission's Determ. on Remand (List 2, Doc. 406)(Aug. 30, 1999) at 1 ("Remand Determination").

In reviewing the Commission's remand determination, this Court is presented with the following issues: (1) whether the procedure the Commission followed on remand was lawful; and (2) whether the Commission's remand determination that the domestic industry was materially injured by reason of LTFV imports of SRAMs from Taiwan is supported by substantial evidence and otherwise in accordance with law.


1. Did the Commission conduct its remand proceedings in accordance with law?

Antidumping proceedings, including the Commission's injury determination under 19 U.S.C. § 1673d(b)(1994), "are investigatory in nature [,]" rather than adjudicatory in nature. See Statement of Administrative Action, H.R. Doc. No. 316, 103rd Cong., 2nd Sess. (1994), reprinted in Uruguay Round Agreements Act, Legislative History, Vol. VI, at 892 ("SAA"); see also Grupo Industrial Camesa v. United States, 18 CIT 461, 463, 853 F.Supp. 440, 442-43 (1994), aff'd, 85 F.3d 1577 (Fed.Cir.1996). As such, the provisions of the Administrative Procedure Act ("APA") do not apply to the Commission's injury investigation. Cf. GSA, S.r.l. v. United States, 24 CIT ----, ----, 77 F.Supp.2d 1349, 1359 (1999); see also 19 U.S.C. § 1677c(b)(1994)("The [Commission's] hearing shall not be subject to the provisions of [5 U.S.C. §§ 551 et seq.], or to [5 U.S.C. § 702].").

After completing an investigation, the six commissioners comprising the Commission, see 19 U.S.C. § 1330(a)(1994), vote on whether the domestic industry has been injured by reason of the subject imports. "If the Commissioners voting on [an injury] determination ... are evenly divided as to whether the determination should be affirmative or negative, the Commission shall be deemed to have made an affirmative determination." 19 U.S.C. § 1677(11)(1994). "[T]he Commission may function notwithstanding vacancies." 19 U.S.C. § 1330(c)(6).

At the time of the original final determination regarding SRAMs from Taiwan, the Commission was only composed of three members: Chairman Miller, Vice Chairman Bragg, and Commissioner Crawford. See Final Determination at 3 n. 1. Vice Chairman Bragg found that the U.S. industry was materially injured by reason of LTFV imports of SRAMs from Taiwan, with Chairman Miller dissenting. See id. at 33 n. 168. Commissioner Crawford, apparently, had recused herself. See id. Thus, Vice Chairman Bragg's decision constituted an affirmative determination of the Commission pursuant to 19 U.S.C. § 1677(11), and the publication of the Commission's final determination was entitled "Views of the Commission." See Final Determination at 3. Accordingly, when the Court remanded, it ordered the Commission to reconsider its affirmative determination, without directing the remand to Vice Chairman Bragg alone. See Taiwan I, 23 CIT at ----, 59 F.Supp.2d at 1336.

By the time of the remand, three new members had been appointed to the Commission: Commissioner Askey, Commissioner Koplan, and Commissioner Hillman. In addition, then Vice Chairman Bragg had become Chairman, and then Chairman Miller had become Vice Chairman. Although the Commission was therefore composed of the full six commissioners, only Chairman Bragg prepared views on remand. See Remand Determination at 1 n. 1. "The Commission, with Commissioner Crawford not participating, submit[ted] Chairman Bragg's remand views to the Court[ ] as its 'Views on Remand[.]' " Id.; see also Action Jacket Approval Record, Pls.' Resp. to Remand Views, Ex. 1. Moreover,

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"[b]ecause Vice Chairman Miller's [dissent] was unaffected by the Court's remand order, she did not take part in this remand proceeding." See Remand Determination at 1 n. 1.

Plaintiffs now argue that "[t]he remand determination was not an institutional response, and therefore it was unlawful." Pls.' Resp. to Remand Views at 2. According to Plaintiffs, the remand determination only represents the views of Chairman Bragg, rather than the views of the Commission as an institution. See id. at 9. Because the applicable statute, case law, and this Court's remand order all compel an institutional response, Plaintiffs maintain, all eligible commissioners should have participated in the determination on remand. See id. at 2. Plaintiffs assert that Vice Chairman Miller, Commissioner Koplan, Commissioner Askey, and Commissioner Hillman did not participate in the remand proceeding. See id. at 2. 3

The plain language of the statute indicates that remands from this court are indeed made to the Commission as a whole: "If the final disposition of an action brought under this section is not in harmony with the published determination of ... the Commission, the matter shall be remanded to the ... Commission ... for disposition consistent with the final disposition of the court." 19 U.S.C. § 1516a(c)(3)(1994).

Likewise, this court has recognized the general rule that, where possible, all sitting commissioners should participate in a remand made to the Commission. See Trent Tube Div. v. United States, 14 CIT 780, 784, 752 F.Supp. 468, 472 (1990)("[R]emands to the Commission ordering explanations of the views of individual members require an 'institutional response' irrespective of the makeup of the Commission's membership at the time it receives remand instructions."), aff'd, 975 F.2d 807, 814 (Fed.Cir.1992)( "[The CIT] was free, within reasonable limits, to set the parameters of the remand, which required an institutional response irrespective of flux in the Commission's membership."); Metallverken Nederland B.V. v. United States, 14 CIT 481, 490, 744 F.Supp. 281, 288 (1990)(recognizing that remands are generally to the Commission as a whole)(citing 19 U.S.C. § 1516a(c)(3)(1988)); Asociacion Colombiana de Exportadores de Flores v. United States, 12 CIT 1174, 1176 n. 2, 704 F.Supp. 1068, 1070 n. 2 (1988)( "[R]emands are made to the [Commission], not to the individual commissioners. Where possible all commissioners should participate in remand determinations."); USX Corp. v. United States, 12 CIT 844, 845, 698 F.Supp. 234, 236 n. 3 (1988)(indicating that a newly-appointed commissioner, not on the Commission at the time of the original decision, should have participated in the remand because "remand is made to the entire Commission[;][t]he Commission, rather than individual commissioners, acts"); SCM Corp. v. United States, 2 CIT 1, 7, 519 F.Supp. 911, 915 (1981)("Clearly, the Commission, like this Court, is a continuing institution, regardless of changes in its membership.").

In addition, although the Court has the authority to remand the individual views of specific commissioners, see, e.g., Nippon Steel Corp. v. United States, 19 CIT 827, 827-28 (1995); Bando Chemical Indus., Ltd. v. United States, 16 CIT 133, 137, 787 F.Supp. 224, 227 (1992), aff'd, 26 F.3d 139, 1994 WL 163953 (Fed.Cir.1994), in this case, the Court ordered "the Commission" to reconsider its affirmative determination,

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instead of remanding the determination to Chairman Bragg, the author of the Commission's original majority determination, alone. See Taiwan I, 23 CIT at ----, 59 F.Supp.2d at 1336. To be sure, the Court could have more specifically instructed that its remand was directed to the entire Commission. See Citrosuco Paulista, S.A. v. United States, 12 CIT 1196, 1231, 704 F.Supp. 1075, 1103 (1988)("This remand is directed to the entire Commission, and not just individual commissioners.") (citing Asociacion...

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