Asociacion De Productores v. U.S. Intern. Trade

• Decision Date: 09 January 2002
• Docket Number: Slip Op. 02-4.,Court No. 98-09-02759.
• Citation: 180 F.Supp.2d 1360
• Parties: ASOCIACION DE PRODUCTORES DE SALMON Y TRUCHA DE CHILE AG, Plaintiff, v. UNITED STATES INTERNATIONAL TRADE COMMISSION, Defendant, Coalition For Fair Atlantic Salmon Trade, Defendant-Intervenor.
• Court: U.S. Court of International Trade

180 F.Supp.2d 1360

ASOCIACION DE PRODUCTORES DE SALMON Y TRUCHA DE CHILE AG, Plaintiff, v. UNITED STATES INTERNATIONAL TRADE COMMISSION, Defendant, Coalition For Fair Atlantic Salmon Trade, Defendant-Intervenor.

Slip Op. 02-4.

Court No. 98-09-02759.

United States Court of International Trade.

January 9, 2002.

COPYRIGHT MATERIAL OMITTED

Arnold & Porter (Michael T. Shor and Kevin T. Traskos), for plaintiff Asociación de Productores de Salmón y Trucha de Chile AG.

Lyn M. Schlitt, General Counsel; James A. Toupin, Deputy General Counsel; Tina Potuto, Attorney, Office of the General Counsel, U.S. International Trade Commission, Washington, DC, for defendant.

Collier, Shannon, Rill & Scott, PLLC (Michael J. Coursey, Kathleen W. Cannon, and John M. Herrmann), Washington, DC, for defendant-intervenor Coalition for Fair Atlantic Salmon Trade.

OPINION

GOLDBERG, Senior Judge.

In this action, the Court reviews a challenge to the final determination of the United States International Trade Commission (the "Commission" or the "ITC") in Fresh Atlantic Salmon from Chile, USITC Pub. 3116, Inv. No. 731-TA-768 (July 1998) ("Final Determination"), as modified by the Commission's three views on remand. See Notice: Fresh Atlantic Salmon from Chile, 63 Fed.Reg. 40,315 (July 28, 1998) (notice of Final Determination); Fresh Atlantic Salmon From Chile, Commission Determination on Remand, USITC Pub. 3244, Inv. No. 731-TA-768 (Remand) (October 1999) ("Views on First Remand"); Fresh Atlantic Salmon From Chile, USITC Pub. 3347, Inv. No. 731-TA-768 (Second Remand) (August 2000) ("Views on Second Remand"); Fresh Atlantic Salmon From Chile, USITC Pub. 3357, Inv. No. 731-TA-768 (Third Remand) (September 2000) ("Views on Third Remand"). Plaintiff Asociación de Productores de Salmón y Trucha de Chile AG ("Asociación") argues that the positive injury determinations of both Commissioner Lynn M. Bragg ("Commissioner Bragg") and Commissioner Marcia E. Miller ("Commissioner Miller") were neither in accordance with law nor supported by substantial evidence.

The Court exercises jurisdiction over this matter pursuant to 28 U.S.C. § 1581(c) (1994). The Court sustains the ITC's Final Determination as modified by the three views on remand.

BACKGROUND

In June 1997, after the Coalition for Fair Atlantic Salmon Trade ("FAST") filed a petition seeking antidumping and countervailing duties on fresh Atlantic salmon from Chile, the Commission instituted antidumping and countervailing duty investigations of fresh Atlantic salmon from Chile. See Fresh Atlantic Salmon from Chile, 62 Fed.Reg. 33,678 (June 20, 1997). In August 1997, the Commission rendered an affirmative preliminary injury determination. See Fresh Atlantic Salmon on from Chile, 62 Fed.Reg. 42,262 (Aug. 6, 1998). In January 1998, the U.S. Department of Commerce ("Commerce") rendered a preliminary affirmative determination of sales at less than fair value. See Fresh Atlantic Salmon from Chile: Notice of Preliminary Determination of Sales at Less Than Fair Value and Postponement of Final Determination, 63 Fed.Reg. 2664 (Jan. 16, 1998).

In July 1998, Commissioner Bragg concluded that the U.S. fresh Atlantic salmon industry was threatened with imminent material injury by reason of subject Chilean imports. See Final Determination at 3. Commissioner Miller concluded that the U.S. industry was currently materially injured by reason of such imports. See id. Commissioner Crawford determined that the domestic industry was neither materially injured nor threatened by reason of the subject imports. See id. As a result of a 2-1 vote, the Commission made an affirmative injury determination. See id.

On August 27, 1998, the Asociación appealed the Commission's affirmative injury determination to this Court. The Asociación argued that the determination was not supported by substantial evidence and was contrary to law in its (a) utilization of record evidence, (b) the Commission's discussion of injury causation and, (c) the effects of dumping margins. Subsequently, the Commission filed a motion with the Court seeking a voluntary remand to determine whether its calculation of foreign production and capacity data was in error, and to allow the Commission to reconsider, if necessary, its affirmative threat determination. On July 2, 1999, the Court granted the Commission's motion and directed the Commission to reopen the record to "verify the accuracy of its foreign production, shipments and capacity data" and to "take any action necessary after reexamining the foreign production, shipments and capacity data." Asociación de Salmón y Trucha de Chile AG v. United States International Trade Commission et al., Slip Op. 99-58, 1999 WL 486540 (July 2, 1999).

In October 1999, after reconsidering the data, and accepting new data from interested parties, the Commission again determined that there was a threat of material injury to the American fresh Atlantic salmon industry. See Views on First Remand. The Court, however, was not satisfied that the Commission accurately verified the foreign production, shipments, and capacity data.

Therefore, the Court issued Asociación de Productores de Salmón y Trucha de Chile AG v. United States International Trade Commission et al., Slip Op. 00-87, 2000 WL 1051973 (July 27, 2000) ("Second Remand Order") directing the Commission to "either (1) adjust the 1998 production data for the consolidated subject producers or (2) to justify the determination that the 1998 production data is, as is, the best information available to it."

In response to the Second Remand Order, in August of 2000, the Commission filed the Views on Second Remand. There the Commission found, among other things, "that information necessary to [its] determination is not available on the record, and the unadjusted [1998 production] data are the facts otherwise available for [the Commission] to reach [its] determination. 19 U.S.C. § 1677e(a)." See Views on Second Remand at 9 n. 27.

Again, the Court found the Commission's response to be lacking. Specifically, the Commission failed to explain how it had complied with the statutory requirements for adopting facts otherwise available. See 19 U.S.C. §§ 1677e, 1677m (1994). The Court remanded to the Commission once again in Asociación de Productores de Salmón y Trucha de Chile AG v. United States International Trade Commission et al., Slip Op. 00-117, 2000 WL 1279826 (September 8, 2000). The Commission then issued its Views on Third Remand, explaining that it did utilize facts otherwise available and why it choose to do so.

STANDARD OF REVIEW

The Commission's Final Determination will be sustained if it is supported by substantial evidence on the record and is otherwise in accordance with law. See 19 U.S.C. § 1516a(b)(1)(B) (1994).

To determine whether the Commission's interpretation of a statute is in accordance with law, the Court applies the two-prong test set forth in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Chevron first directs the Court to determine "whether Congress has directly spoken to the precise question at issue." Id. at 842, 104 S.Ct. 2778. To do so, the Court must look to the statute's text to ascertain "Congress's purpose and intent." Timex V.I., Inc. v. United States, 16 Fed. Cir. (T) ___, ___, 157 F.3d 879, 881 (1998) (citing Chevron, 467 U.S. at 842-43 & n. 9, 104 S.Ct. 2778). If the plain language of the statute is not dispositive, the Court must then consider the statute's structure, canons of statutory interpretation, and legislative history. See id. at ___, 157 F.3d at 882 (citing Dunn v. Commodity Futures Trading Comm'n, 519 U.S. 465, 470-80, 117 S.Ct. 913, 137 L.Ed.2d 93 (1997)); Chevron, 467 U.S. at 859-63, 104 S.Ct. 2778. If, after this analysis, Congress's intent is unambiguous, the Court must give it effect. See Timex V.I., Inc., 16 Fed. Cir. (T) at ___, 157 F.3d at 882.

If the statute is either silent or ambiguous on the question at issue, however, "the question for the court is whether the agency's answer is based on a permissible construction of the statute." Chevron, 467 U.S. at 843, 104 S.Ct. 2778 (footnote omitted). Thus, the second prong of the Chevron test directs the Court to consider the reasonableness of the Commission's interpretation. See id. The level of deference afforded an agency interpretation is directly related to the extent to which Congress explicitly delegated authority to the agency to make such an interpretation, as well as the manner in which the interpretation was promulgated. See U.S. v. Mead Corp., 533 U.S. 218, ___, 121 S.Ct. 2164, 2171, 150 L.Ed.2d 292 (2001).

With respect to the Commission's factual findings, the Court will sustain the Commission's determinations if they are supported by substantial evidence. "Substantial evidence is something more than a `mere scintilla,' and must be enough reasonably to support a conclusion." Ceramica Regiomontana, S.A. v. United States, 10 CIT 399, 405, 636 F.Supp. 961, 966 (1986) (citations omitted), aff'd, 5 Fed. Cir. (T) 77, 810 F.2d 1137 (1987). In applying this standard, the Court must sustain the Commission's factual determinations so long as they are reasonable and supported by the record as a whole, even if there is some evidence that detracts from the agency's conclusions. See Atlantic Sugar, Ltd. v. United States, 2 Fed. Cir. (T) 130, 137, 744 F.2d 1556, 1563 (1984).

DISCUSSION

I. The Commission's Threat of Material Injury Determination is in Accordance with Law and Supported by Substantial Evidence.

Under U.S. law, an affirmative threat determination requires the Commission to find that "further dumped or subsidized imports are imminent and [that] material injury by reason of imports would occur unless an order is issued or a suspension agreement is accepted...." 19 U.S.C. § 1677(7)(F)(ii) (1994). Affirmative threat determinations must be based on "positive evidence tending to...