Asociacion De Productores De Salmon Y Trucha De Chile AG v. United States International Trade Commission

Slip Op. 02-4

UNITED STATES COURT OF INTERNATIONAL TRADE

BEFORE: RICHARD W. GOLDBERG, SENIOR JUDGE

ASOCIACION DE PRODUCTORES DE
SALMON Y TRUCHA DE CHILE AG,

Plaintiff,
PUBLIC VERSION
v.
Court No. 98-09-02759
UNITED STATES INTERNATIONAL
TRADE COMMISSION,

Defendant,

COALITION FOR FAIR ATLANTIC
SALMON TRADE,

Defendant-Intervenor.

[ITC positive injury determination sustained.]

Dated: January 9, 2002

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, for defendant.

Collier, Shannon, Rill & Scott, PLLC (Michael J. Coursey,
Kathleen W. Cannon, and John M. Herrmann), 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
Court No. 98-09-02759 Page 2

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
Court No. 98-09-02759 Page 3

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 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 Postponenment

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
Court No. 98-09-02759 Page 4

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,
Court No. 98-09-02759 Page 5

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
Court No. 98-09-02759 Page 6

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 (1984). Chevron first

directs the Court to determine “whether Congress has directly

spoken to the precise question at issue.” Id. at 842. 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). 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 (1997)); Chevron, 467 U.S. at 859-63. 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 (footnote omitted). Thus,
Court No. 98-09-02759 Page 7

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 (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.
Court No. 98-09-02759 Page 8

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 show an intention to increase levels of

importation.” BIC Corp. v. United States, 21 CIT 448, 464, 964

F. Supp. 391, 405 (1997) (quoting Metallverken Nederland B.V. v.

United States, 14 CIT 481, 488, 744 F. Supp. 281, 287 (1990)).

A. The Commission’s Use of the Consolidated Data in Making
Its Determination is in Accordance With Law and the
Data is Substantial Evidence Supporting Its Threat of
Material Injury Determination.

The Commission determined that there was a threat of

material injury because “the subject producers have existing

unused and imminent substantial increases in capacity that

indicate the likelihood of substantially increased imports of the

subject merchandise into the United States.” Views on First

Remand at 20. The Commission reasoned that the “subject

producers will use expanded capacity and/or any increased

capacity utilization to substantially increase their exports to

the United States.” Final Determination at 24. The Commission

also found that the U.S. market was particularly vulnerable

because the “demand for salmon in the United States is expected

to continue growing in the future.” Views on First Remand at 21.
Court No. 98-09-02759 Page 9

Prior to the remands, the Asociación argued that in making

its determination the Commission relied on improperly compiled

subject producer data1, including “double-counted”2 data. See

1
Compiled subject producer data consists of “consolidated
subject producer data” and subject producer data submitted by
larger individual salmon producers. The “consolidated subject
producer data” is data that was submitted by the Asociación at
the request of the Commission. The data represents the
production and capacity information for a number of smaller
Chilean salmon producers, including production and capacity data
for Fiordo Blanco. The data that was submitted individually by
the larger Chilean salmon producers included data from Fiordo
Blanco.
2
“Double-counting” is a term utilized by the parties in this
proceeding to explain that one of the Chilean producers, Fiordo
Blanco, may have been accounted for twice in the data
compilation. It does not mean that Fiordo Blanco’s data is
exactly doubled, only that data may have been included twice.
Fiordo Blanco separately submitted actual production and
capacity data for 1998 to the Commission. See Views on Second
Remand at 10. In its submission, the Asociación also included in
its 1998 consolidated subject producer data estimated Fiordo
Blanco production and capacity levels. See id. Therefore,
Fiordo Blanco was included twice, as both an individual producer
and as part of the consolidated producers represented by the
Asociación’s data. Since the Asociación did not provide the
Commission with a breakdown of its 1998 data so that the
Commission could remove the estimated Fiordo Blanco data from the
consolidated subject producer data, the ITC considered whether to
follow the Asociación’s proposed solution to exclude the actual
Fiordo Blanco production and capacity levels from the 1998
subject producer data. See Views on Third Remand at 5; Views on
Second Remand at 10; Pl.’s Mem. in Opp’n to Third Remand
Determination and in Supp. of Rule 56.2 Mot. for J. on the Agency
R. at 2.
The Commission rejected this alternative since it appeared
likely that the actual production and capacity levels for Fiordo
Blanco were much higher than what the Asociación had estimated as
Fiordo Blanco’s 1998 production and capacity levels. See Views
on Second Remand at 10. If the actual levels were not included
in the subject producer data, the resulting figures would
underestimate the subject producers’ production and capacity
levels for 1998. See id.
Court No. 98-09-02759 Page 10

Initial Br. of Asociación de Productores de Salmón y Trucha de

Chile AG in Supp. of Rule 56.2 Mot. for J. on the Agency R.

(“Pl.’s Initial Br.”) at 16-19. After the three remands, the

Asociación still maintains that the Commission improperly relied

on double-counted data, not only because it is an insufficient

basis for a threat determination, but also on the grounds that

the Commission acted contrary to the statute in considering the

double-counted data. See Pl.’s Mem. in Opp’n to Third Remand

Determination and in Supp. of Rule 56.2 Mot. for J. on the Agency

R. (“Pl.’s Third Remand Memo”).

1. The Commission’s Treatment of the Consolidated
Subject Producer Data is in Accordance with Law.

The Commission concedes that the consolidated subject

producer data contains some inaccurate data. See Views on Third

Remand at 5. In its Views On Third Remand, however, the ITC

states that its use of the imperfect data is permissible under 19

U.S.C. §§ 1677e(a) and 1677m(d).3 The Commission reasons that

3
Section 1677e(a) provides:

(a) In general
If-
(1) necessary information is not available on the
record, or
(2) an interested party or any other person -
(A) withholds information . . .,
(B) fails to provide such information . . .,
(C) significantly impedes a proceeding under
this subtitle, or
(D) provides such information but the
information cannot be verified as provided in
section 1677m(i) of this title,
Court No. 98-09-02759 Page 11

the data cannot be recalculated to remove the double-counted

information because the Asociación was unable to provide the

Commission with deconsolidated production data for Fiordo Blanco

-- the producer that was double-counted. See Views on Third

Remand at 5-6. The Commission claims that it acted in accordance

with 19 U.S.C. § 1677e(a) in using “facts otherwise available,”

specifically the imperfect consolidated producer data. See id.

at 6. The ITC further states that the notice requirements of §

1677m(d) are not implicated in this case because the Asociación

never failed to comply with a request for information. See id.

at 6-7.

The administering authority and the Commission shall,
subject to section 1677m(d) of this title, use the facts
otherwise available in reaching the applicable determination
under this subtitle.

19 U.S.C. 1677e(a).

Section 1677m(d) states:

(d) Deficient submissions
If the administering authority or the Commission determines
that a response to a request for information under this
subtitle does not comply with the request, the administering
authority or the Commission (as the case may be) shall
promptly inform the person submitting the response of the
nature of the deficiency and shall, to the extent
practicable, provide that person with an opportunity to
remedy or explain the deficiency in light of the time limits
established for the completion of investigations or reviews
under this subtitle.

19 U.S.C. 1677m(d).
Court No. 98-09-02759 Page 12

The Asociación argues that the Commission’s treatment of the

production data is not in accordance with law. First, the

Asociación claims that the ITC’s determination is inconsistent

with the statute authorizing use of facts otherwise available, 19

U.S.C. 1677e(a). See Pl.’s Third Remand Memo at 2. The

Asociación argues that the statute does not authorize the

Commission to utilize data known to be incorrect; rather it

compels the Commission to use facts otherwise available to

correct imperfect data where the preferred data is not available.

See id. The Asociación claims that there is data on the record

that the Commission can utilize to avoid double-counting, and

that the statute compels the Commission to do just that.4 See

id. at 2-3.

Second, the Asociación argues that the Commission has made

an impermissible adverse inference5 against the subject producers

by valuing Fiordo Blanco’s contribution to the Asociación’s

4
The Asociación claims that the Commission can avoid double-
counting by excluding the actual Fiordo Blanco production and
capacity levels for 1998 from the subject producer data. Pl.’s
Third Remand Memo at 2; see also supra n.1.
5
If the Commission finds that the respondent “has failed to
cooperate by not acting to the best of its ability to comply with
a request for information . . . [the Commission] may use an
inference that is adverse to the interests of that party in
selecting from among the facts otherwise available.” 19 U.S.C. §
1677e(b).
Court No. 98-09-02759 Page 13

consolidated subject producer data at zero.6 See id. at 3. The

Asociación alleges that the adverse inference was impermissible

because the Commission never found a deficiency in any Chilean

data response. See id. (citing 19 U.S.C. § 1677e(b)).

The Court finds that the Commission properly relied upon

facts otherwise available in considering the imperfect 1998

consolidated subject producer data. See 19 U.S.C. §

1677e(a)(2)(D). After determining that the information on the

record was imperfect, the Commission used the imperfect 1998

consolidated subject producer data to arrive at what, in its

view, best approximated the likely capacity of subject producers

in 1998. The Commission went to some lengths to explain why it

chose to utilize the unadjusted 1998 consolidated subject

6
The Asociación argues that the Commission effectively
valued Fiordo Blanco’s estimated 1998 production and capacity
levels, which were included in the consolidated subject producer
data, at zero. Pl.’s Third Remand Memo at 2. That is, the ITC
subtracted nothing from the 1998 consolidated subject producer
data, and made no adjustment to the consolidated subject producer
data to remedy the double-counting. The Commission did so
because it found no adjustment to be a better estimate of the
likely production and capacity levels of subject producers in
1998. See Views on Third Remand at 6; Views on Second Remand at
17. In Views on Second Remand, the Commission tried two
different adjustments to the capacity and production data to
remove Fiordo Blanco data from the Asociación’s consolidated
subject producers data. Views on Second Remand at 11-18. Both
adjustments affirmed the ITC’s initial conclusion that the U.S.
industry is threatened with material injury by reason of subject
imports from Chile. Id. at 17. However, because of problems
with the Asociación’s data, the Commission decided to rely on the
unadjusted 1998 subject producers’ production and capacity data.
Id.
Court No. 98-09-02759 Page 14

producer data as facts otherwise available. See Views on Second

Remand at 9. The ITC reasoned that the Asociación had

underestimated production levels, admitted making unidentified

“clerical errors,” and was unable to parse its original

consolidated subject producer data to account for the included

Fiordo Blanco data. See id. at 8 n.25. Thus, the Commission

decided that to make any more adjustments would only “further

exacerbate[] overall data problems.” Id. at 9.

The Commission also explained why she chose not to employ

the methodology favored by the Asociación, namely to exclude the

separately submitted Fiordo Blanco production and capacity levels

from the total subject producers data. See id. at 10. The

Commission surmised that the Asociación likely calculated its

1998 Fiordo Blanco data from the production and capacity data it

assigned to Fiordo Blanco in 1997. Because Fiordo Blanco

reported significant increases in 1998, the Commission reasoned

that the Asociación’s calculation of consolidated subject

producer data included underestimated 1998 Fiordo Blanco data.

Thus, subtracting the reported Fiordo Blanco production and

capacity level data from the 1998 consolidated subject producer

data would likely inaccurately diminish the consolidated subject

producer data, rendering the numbers even more inaccurate. See

Views on Second Remand at 10.
Court No. 98-09-02759 Page 15

The Commission’s chosen data set was reasonable because,

faced with a choice between imperfect alternatives, the ITC opted

for the one that it considered less inaccurate. See Fabrique de

Fer de Charleroi S.A. v. United States, 25 CIT __, __, 155 F.

Supp. 2d 801, 809 (2001) (“Making a determination based on facts

available, [the Commission] should: (1) strive to arrive to ‘the

most reasonable estimate,’. . . and (2) rely on the data that has

a ‘rational relationship . . . [to] the matter.’”) (quoting

National Steel Corp. v. United States, 18 CIT 1126, 1132, 870 F.

Supp. 1130, 1136 (1994)); see also Acciai Speciali Terni S.P.A.

v. United States, 25 CIT __, __, 142 F. Supp. 2d 969, 989-94

(2001) (Commerce could not use certain data as adverse facts

otherwise available because it was “inherently distortive and

unreasonable,” but Commerce could use other data to draw adverse

facts otherwise available because it was “a reasonable choice of

facts, which certainly falls within the Department’s

discretion”). As discussed above, the Commission’s decision to

use the unadjusted 1998 consolidated subject producer data as

facts otherwise available was reasonable under section 1677e(a).

Further, the Asociación has not persuaded the Court that its

proposed adjustment is any less inaccurate, or more reasonable,

than the Commission’s position.

Moreover, contrary to the Asociación’s argument, the

Commission did not value the Asociación’s Fiordo Blanco data at
Court No. 98-09-02759 Page 16

zero. The ITC assumed that the Asociación included Fiordo Blanco

data in the consolidated data, but the Commission had no way of

knowing what that value was in order to subtract the double-

counted Fiordo Blanco data.7 What the Commission did find,

however, was that the aggregate consolidated data was likely

underestimated. See Views on Second Remand at 9 n.26.8 In

choosing among the two adjusted data sets, discussed infra note

6, and the unadjusted subject producer data, the ITC chose to use

7
In fact, the Commission gave the Asociación ample
opportunity to provide a breakdown of the 1998 aggregate data in
the first remand proceeding. The Asociación was able to supply a
breakdown for the 1994-1997 data, but was unable to do so for the
1998 data. See App. to Reply Br. of Asociación de Productores de
Salmón y Trucha de Chile AG in Supp. of Rule 56.2 Mot. for J. on
the Agency R. 53, Supplemental Questions Relating to Foreign
Producer: Questionnaire Response of Asociación de Productores de
Salmón y Trucha de Chile AG at Q1. This is why the Commission
adjusted the 1994-1997 data to account for the double-counting,
but declined to do so for the 1998 data. See Views on Second
Remand at 9.
8
The Commission explained, as follows, why it found that the
aggregate consolidated data was likely underestimated:

[The Commission] believe[s] that the Asociación’s
estimates of production generally under report the amount
of production for each producer. Their estimates for
Fiordo Blanco, for example, were far off the mark and
substantially under the amount reported by Fiordo Blanco
for its future production . . . . Moreover, the
Asociación’s methodology requires production to be equal
to exports. In fact, they have admitted that production
does not equal exports because some production does go to
home market shipments . . . . Consequently, the
Asociación’s production numbers understate the actual
production of the Chilean producers.

Views on Second Remand at 9 n.26.
Court No. 98-09-02759 Page 17

the data it considered to be more accurate -- unadjusted subject

producer data. Thus, the Asociación’s claim that the Commission

made an impermissible adverse inference is without merit.

2. The Consolidated Data is Part of the Substantial
Evidence Supporting The Commission’s Positive
Material Injury Determination.

The Asociación argues that the Commission’s decision to

utilize facts otherwise available prevents the capacity and

production data from constituting substantial evidence because it

values Fiordo Blanco’s data at zero. See Pl.’s Third Remand Memo

at 3. The Asociación also argues that even if using the double-

counted 1998 data were valid, the slight increase in production

and capacity between 1997 and 1998 would not support the

Commission’s positive injury determination. See id. at 5. Thus,

the Asociación claims, the consolidated subject producer data

cannot be used as substantial evidence to support the positive

injury determination. See id.

The Court finds that the consolidated data is part of the

substantial evidence supporting the Commission’s positive injury

determination. First, as explained supra, the ITC did not

consider Fiordo Blanco’s consolidated data to be zero. Second,

the increase in production between 1997 and 1998, however slight,

is substantial evidence supporting the Commission’s

determination, because it is only part of the total “trend”
Court No. 98-09-02759 Page 18

evidence upon which the Commission based its determination. See

infra § I.B.1.

B. The Commission’s Finding that the Subject Producers
Would Substantially Increase Exports to the United
States in the Imminent Future by Increasing Their
Capacity and Capacity Utilization is in Accordance with
Law and Supported by Substantial Evidence.

In the Final Determination the ITC found that subject

Chilean producers of fresh Atlantic salmon “will use expanded

capacity . . . to substantially increase their exports to the

United States.” Final Determination at 24. The Asociación

argues that the Commission’s determination that the subject

producers will expand capacity, and capacity utilization, to

substantially increase their exports to the United States is not

supported by substantial evidence. See Pl.’s Initial Br. at 20.

The Court does not agree.

1. The Commission’s Conclusion that the Subject
Producers Would Increase Capacity is in Accordance
with Law and Supported by Substantial Evidence.

The Asociación argues that the Commission improperly

disregarded Asociación data in determining that subject producers

would increase capacity. See Reply Br. of Asociación de

Productores de Salmón y Trucha de Chile AG in Supp. of Rule 56.2

Mot. for J. on the Agency R. (“Pl.’s Reply Br.”) at 8. The

Asociación claims that the foreign producers’ questionnaire, the

only record evidence regarding Chilean producers’ capacity as a

whole, was incorrectly interpreted to show an increase in future
Court No. 98-09-02759 Page 19

capacity. See Pl.’s Initial Br. at 20-21. The Asociación also

claims that the Commission misinterpreted the data because

capacity is absolutely constrained by the amount of fish produced

plus mortality.9 See id. at 22-23. Finally, the Asociación

claims that any plans to increase capacity could not be realized

in the “imminent future” because of the constraints of the three-

year production cycle for Atlantic salmon. See id. at 21.10

As a threshold matter, the Asociación’s argument that the

Commission ignored or disregarded its data is without merit.

The Commission explicitly stated that it accepted the

Asociación’s production and capacity level data concerning the

consolidated subject producers. See Views on First Remand at 14.

The Commission duly considered the Asociación’s consolidated data

purporting to show that consolidated producers would decrease

capacity in the future, but found the evidence of the producers

that reported independently to be more persuasive. The law is

9
“Mortality” simply means the number of fish that died after
they were placed in ocean pens. The Commission expressly
accepted the Asociación’s data, stating that it “used the data
reported by the Asociación to assess the production and capacity
levels of the consolidated subject producers in this remand
investigation.” Views on First Remand at 14.
10
The production cycle for freshwater salmon is from 33 to 45
months. See Pl.’s Initial Br. at 6 (citing App. to Pl.’s Initial
Brief 3, Commission Final Staff Report, July 1998, Public Version
at I-3 to I-4). The Commission agreed: “It takes three years for
farmed salmon to reach the optimum size for sale in the market .
. . . Given the length of the production cycle, the ability of
salmon producers to increase production levels rapidly to satisfy
demand is clearly constrained.” Final Determination at 17.
Court No. 98-09-02759 Page 20

clear that the Commission does not have to explicitly address all

information presented to it, only that it consider it. See 19

U.S.C. § 1677m(e). Ranchers-Cattlemen Action Legal Foundation v.

United States, 23 CIT __, __, 74 F. Supp. 2d 1353, 1379 (1999)

(“the fact that the ITC chose not to focus on certain data in its

main report does not indicate that the ITC failed to consider

that information as ‘there is no statutory requirement that the

Commission respond to each piece of evidence presented by the

parties’”) (quoting Granges Metallverken AB v. United States, 13

CIT 471, 477, 716 F. Supp. 17, 24 (1989)). The independently

reported data indicated that [ ] producers would

increase their capacity levels, and from this information the

Commission reasonably concluded that subject producers as a whole

would increase their capacity. See Views on First Remand at 22-

23. As a result, this Court finds that the Commission did not

disregard the Asociación’s data, but merely found other evidence

on the record to be more persuasive. See Goss Graphics Systems,

Inc. v. United States, 22 CIT 983, 1004, 33 F.Supp. 2d 1082, 1100

(1998) (“The Commission has the discretion to make reasonable

interpretations of the evidence and to determine the overall

significance of any particular factor in its analysis.”), aff’d,

18 Fed. Cir. (T) __, 216 F.3d 1357 (2000).

Further, the Commission concluded that imports were likely

to increase in the imminent future primarily by examining the
Court No. 98-09-02759 Page 21

“trend” evidenced by the yearly data of the subject producers.

See Views on First Remand at 21. The ITC found that the subject

producers as a whole increased their production and capacity

levels each year and thus a threat of increased capacity

utilization was substantial in the imminent future. See id. The

Court of International Trade has previously approved such a

“trend” analysis as reasonable. See Bando Chem. Indus., Ltd. v.

United States, 17 CIT 798, 807 (1993), aff’d, 26 F.3d 139

(1994)(finding that Commission reasonably inferred from overall

trend of data that increased production likely destined for U.S.

market); Iwatsu Elec. Co., Ltd. v. United States, 15 CIT 44, 55,

758 F. Supp. 1506, 1515-16 (1991) (upholding use of imperfect

data as trend indicator).

The Commission’s trend analysis was based on a reasonable

one-year capacity calculation.11 The Commission recognized that

capacity was constrained by the amount of harvestable fish in the

water in any given year.12 The Commission, however, realized

11
Although the Commission certainly could have conducted a
capacity analysis differently, as discussed infra, the yearly
trend analysis is a permissible method of finding a imminent
threat of increased capacity utilization.
12
Capacity is based on the calculation of the number of fish
produced in addition to the number of fish that died during a
year. See Views on First Remand at 18. As the Commission
explained,

a producer’s capacity level in a particular year is
constrained by the number of harvestable fish that were
in the water at the beginning of any particular year and
Court No. 98-09-02759 Page 22

that this constraint was not absolute.13 Most importantly, due

to the ITC’s yearly trend analysis, the Commission did not need

to rely on evidence of the three year Atlantic salmon production

cycle.

Moreover, the Court finds that the one-year capacity

evidence is substantial evidence supporting the Commission’s

conclusion. The original and the revised data demonstrate

[ ]. See Apps. to Pl.’s

Initial Br. (“Pl.’s Initial App.”) 6, 9, 10, 12, 16,

Questionnaire Responses of Foreign Producers at 4; Views on First

Remand at 20; App. to Pl.’s Reply Brief 56, Comm’n Staff Report

that, therefore, a producer’s capacity for that
particular year is arguably equal to its production for
the year plus the number of harvestable fish that died
during the year as the Asociación asserts.

Id. at 17-18.
13
For example, mature salmon can be “held over” from year to
year if market conditions are not attractive for harvest. See
App. to Pl.’s Initial Br. 2, ITC Staff Report at I-5. Holding
over can affect capacity beyond the Asociación’s simplified
production plus mortality calculation by keeping additional
capacity (the held-over salmon) from production. See id.
Capacity can also be affected by the addition of developing
salmon at different stages of the three-year cycle. See id. at
I-4 (producers sometimes purchase “smolt” or 18 month old
salmon). Lastly, the record demonstrates that there may not be a
direct correlation between number of fish and capacity because
production is not measured in number of fish, but rather in
pounds. See id. at II-2, VI-2. Thus, climate changes or feeding
practices may affect production. See id.
Court No. 98-09-02759 Page 23

in Remand Proceeding at Tables A-1 to A-4.14 And the record

evidence demonstrated that [

]. See Pl.’s

Initial Apps. 9, 10, 16, Responses to Commission’s Foreign

Producers’ Questionnaire. This evidence supports the ITC’s

determination that subject producers will increase capacity in

the future.

The Court also finds meritless the Asociación’s argument

that “imminent,” as a matter of law, cannot mean within one to

two years. See Pl.’s Reply Br. at 33-34. The Commission

concluded that subject producers could increase shipments to the

United States “within one to two years.” See Views on First

Remand at 18 n.74. The Asociación argues that, due to the three-

year production cycle, no capacity change could be realized

within three years. See Pl.’s Initial Br. at 24. Further, the

Asociación argues that, as a matter of law, “imminent” cannot

mean “within one or two years” and thus the Commission has

violated the statute by finding that increased capacity

utilization could lead to imminent increases in subject imports.

14
Secondary evidence on the record also supported the
Commission’s finding. See E. Alan Kenny, The Current Status and
Future Outlook of Global Salmon Markets: Implications for
Canadian Salmon Farmers at 49 (November 1996) (in Pl.’s Initial
Apps. 25) (showing that Chile had the highest rate of growth in
farmed salmon production between 1991 and 1995 and that Chile
increased its exports to the United States, accounting for
roughly 56 percent of total U.S. supply by the year 2000).
Court No. 98-09-02759 Page 24

See Final Br. of Asociación de Productores de Salmón y Trucha de

Chile AG in Opp’n to First Remand Determination and in Supp. of

Rule 56.2 Mot. for J. on the Agency R. at 38-39.

No bright-line test exists to determine when injury is

imminent. Congress, however, is presumed to have used words in

their ordinary meaning, absent a contrary expressed intent. See

Camargo Correa Metais, S.A. v. United States, 18 Fed. Cir. (T)

__, __, 200 F.3d 771, 773 (1999). The Court need not defer to

the Commission’s interpretation because “Congress’s purpose and

intent on the question at issue is judicially ascertainable.”

Timex V.I., Inc. v. United States, 16 Fed. Cir. (T) __, __ , 157

F.3d 879, 881(1998).

Both the dictionary definition and case law from the CIT

demonstrate that the statutory term “imminent” only means

impending. See The Oxford English Dictionary 685 (2d Ed.

1989)(defining “imminent” as “impending”); see also Goss

Graphics, 22 CIT at 1007-1008, 33 F. Supp. 2d at 1103 (finding

that the Commission reasonably found imminent harm to domestic

industry when financial effects of dumped subject imports would

not manifest themselves for two or more years). The term does

not necessarily mean, as the Asociación argues, immediate, as the

statute does not establish any specific time limit governing when

a potential action can be characterized as imminent. In each

case the Commission should look at the facts and circumstances of
Court No. 98-09-02759 Page 25

the industry, product, and marketplace to determine if further

dumped or subsidized imports are imminent.

2. The Commission’s Conclusion that Subject Producers
Would Increase Capacity Utilization is Supported
by Substantial Evidence and in Accordance with
Law.

The Commission also found that the capacity utilization

levels for all subject producers declined between 1996 and 1997.

See View on First Remand at 21. The Commission determined that

the subject producers were likely to increase production through

the utilization of this unused capacity. See id. It reasoned

that they would have incentive to do so because the

United States is the largest export market for the subject

producers, and U.S. demand is increasing. See id.

This Court has previously recognized that incentives exist

for subject producers to expand production when low capacity

utilization exists. See Citrosuco Paulista, S.A. v. United

States, 12 CIT 1196, 1220, 1221-22, 704 F.Supp. 1075, 1095, 1097

(1988) (upholding Commission finding that increased production

capacity, and low utilization levels, would result in increased

exports to the United States when, among other things, the United

States is a major market for exporting companies). Accordingly,

the Court finds the Commission’s conclusion that subject

producers will increase production through utilization of the

unused capacity to be reasonable.
Court No. 98-09-02759 Page 26

C. The Commission’s Finding that the Subject Producers
Could Substantially Increase Exports to the United
States in the Imminent Future by Shifting Production
from Other Seafood Products to Salmon is in Accordance
with Law and Supported by Substantial Evidence.

The Commission also found that “subject producers have

potential to shift production from other seafood products to

salmon.” Final Determination at 23. The Asociación argues that

as a matter of law such a finding of “potential” production shift

is based on impermissible speculation and cannot support a threat

finding. See Pl.’s Initial Br. at 24. Further, the Asociación

argues that there is no record evidence that subject producers as

a whole planned to shift production from other products to

salmon. See id. at 25. The Court finds that the ITC’s

consideration of the potential for subject producers to shift

from other seafood products to salmon, together with the other

record evidence, supports its finding that subject producers

would substantially increase exports, and that this finding is

not mere conjecture. In fact, the statute requires the

Commission to consider the potential for product-shifting. See

19 U.S.C. § 1677(7)(F)(i)(VI).

The record evidence supports the Commission’s finding that

production potentially will shift from other seafood products to

salmon. See Final Determination at 23 n.168. In fact, the

Asociación’s own data supports the Commission’s conclusion. The

record evidence demonstrates that the Asociación only reported
Court No. 98-09-02759 Page 27

home market production and shipment of salmon further processed

into cut salmon. The record indicates that a significant amount

of the Asociación’s production in 1997 was processed into frozen

or smoked salmon. See Views on First Remand at 9-10. Thus, the

Asociación possessed the ability to shift a significant amount of

its production from one channel of trade -- smoked and frozen

salmon, to another -- cut salmon. See id.; U.S. Steel Group v.

United States, 18 CIT 1190, 1222, 873 F. Supp. 673, 701 (1994)

(when assessing the risk of product shifting the Commission may

look to, among other things, the channels of trade available for

such shifting).

Moreover, record evidence demonstrates that the subject

producers had an incentive to shift production. Fresh salmon

commands a price premium over frozen and smoked salmon. See

Views on First Remand at 23. The evidence also shows that there

is a “surprisingly low consumption of smoked salmon” in the

United States. See Audun Lem & Maria Di Marzio, The World Market

for Salmon 33 (GLOBEFISH Research Programme, Vol. 44, FAO) (May

1996) (“GLOBEFISH Research”) (in App. to Def. U.S. Int’l Trade

Comm.’s Mem. in Opp. to Pl.’s Mot. for J. on the Agency R. (“Def.

App.”) Conf. List Doc. 13, App. to Pet’r’s Pre-hearing Br.). It

was reasonable, and not mere conjecture, for the Commission to

conclude that Chilean producers would likely shift away from

those products with low demand in the United States, namely
Court No. 98-09-02759 Page 28

smoked salmon, toward salmon cuts, the product with the price

premium.

D. The Commission’s Finding that the Subject Producers
Could Substantially Increase Exports to the United
States in the Imminent Future By Shifting Exports From
Other Markets to the United States is in Accordance
with Law and Supported by Substantial Evidence.

The Commission also supported its positive injury

determination with “evidence that subject producers have

potential to shift . . . exports from other markets to the U.S.”

Final Determination at 23. Again, the Asociación claims that

this is mere speculation and that the finding is not supported by

record evidence. See Pl.’s Initial Br. at 25. The Court finds

that the Commission’s consideration of the potential for subject

producers to shift products between markets, together with the

other record evidence, supports its positive injury determination

and is not mere conjecture.

As with respect to the issue of product-shifting, see supra,

when considering the record evidence in this context, the Court

must bear in mind that the Commission is only statutorily

mandated to consider whether there is a “potential” for shifting.

See 19 U.S.C. § 1677(7)(F)(i)(VI). The record evidence

demonstrates that salmon producers are able to shift their

production between countries in responses to changes in the

market. See Def. App. Conf. List 13, App. to Pet’r’s Pre-hearing

Br., at App. 2 (LECG Economic Report). The Asociación offers no
Court No. 98-09-02759 Page 29

countervailing evidence; indeed, its own economic analysis

suggests that the United States market is more attractive than

other markets. See GLOBEFISH Research at 28-30. Therefore, the

substantial evidence supports the Commission’s conclusion that,

at a minimum, there is a potential for shifting exports from

other markets to the United States.

II. The Determinations of Both Commissioners Bragg and Miller
are Supported by the Causation Analysis Required by the
Statute.

Under U.S. law, where there is evidence that the U.S.

industry is injured, or threatened with injury, by factors other

than less than fair value imports, the Commission must consider

all relevant economic factors. 19 U.S.C. § 1677(7)(C)(iii); see

Gerald Metals, Inc. v. United States, 16 Fed. Cir. (T) __, __,

132 F.3d 716, 722-23 (1997); Suramerica de Aleaciones Laminadas,

C.A. v. United States, 13 Fed. Cir. (T) 34, 38-39, 44 F.3d 978,

984 (1994); Taiwan Semiconductor Indus. Ass’n v. United States,

23 CIT __, __, 59 F. Supp. 2d 1324, 1329 (1999), aff’d, 19 Fed.

Cir. (T) __, 266 F.3d 1339 (2001). The statute provides that the

Commission “shall evaluate all relevant economic factors which

have a bearing on the state of the industry in the United States

. . . .” 19 U.S.C. § 1677(7)(C)(iii). The Statement of

Administrative Action states that the Commission is required to

“examine all relevant evidence including any known factors, other

than the dumped . . . imports which at the same time are injuring
Court No. 98-09-02759 Page 30

the domestic industry.” Statement of Administrative Action on

the Uruguay Round Agreements Act, reprinted in H.R. Doc. No. 103-

316(I) (1994) (“SAA”) at 851 (internal quotes omitted). The SAA,

however, also indicates that in examining other causes of injury,

the Commission is not required to isolate the effects of subject

imports from other factors contributing to the injury. See id.

In Gerald Metals the Federal Circuit expressly construed the

SAA provisions to require analysis of the alternative sources of

injury. See 16 Fed. Cir. (T) at __, 132 F.3d at 722-23. The

Asociación claims that in this case both Commissioner Bragg and

Commissioner Miller failed to comply with this requirement.15

A. Commissioner Bragg’s Determination

The Asociación argues that Commissioner Bragg failed to

discuss global market forces as an alternative source of injury.

See Pl.’s Initial Br. at 29, 34. In its brief, the Asociación

points to numerous pieces of record evidence that it claims

establish the existence of such a global market. See id. at 29

n.93.

The Court finds that Commissioner Bragg did not err by

declining to explicitly discuss the tangential issue of the

15
The Commission’s Final Determination was made in a two to
one vote. Final Determination at 1. Commissioners Bragg and
Miller’s views “comprised the Commission’s affirmative
determination” in the Final Determination. Views on First Remand
at 1. Therefore, the Asociación’s separate challenges to the
views of Commissioners Bragg and Miller are challenges to the
views of the Commission.
Court No. 98-09-02759 Page 31

global market for salmon. The Commission need not address every

issue presented to it. See Dastech Int’l, Inc. v. United States

Int’l Trade Comm’n, 21 CIT 469, 476, 963 F. Supp. 1220, 1226

(1997). In fact, the SAA makes clear that the Commission must

only “examine all relevant evidence including any known factors,

other than the dumped . . . imports which at the same time are

injuring the domestic industry.” SAA at 851 (internal quotes

omitted). The law requires only that the Commission examine

alternative causes. “Absent some showing to the contrary, the

Commission is presumed to have considered all evidence in the

record.” Rhone Poulenc, S.A. v. United States, 8 CIT 47, 55, 592

F. Supp. 1318, 1326 (1984). The evidence indicates that

Commissioner Bragg declined to address the global market because

she did not consider it to be injuring the domestic industry.

The Asociación also charges that in making her injury

analysis, Commissioner Bragg failed to distinguish between harm

caused by a shift in consumer preference and harm caused by less

than fair value imports. See Pl.’s Initial Br. at 37-38 (citing

Final Determination at 17, 21). Specifically, the Asociación

points to Commissioner Bragg’s statement that “once the shift in

the market toward cuts and away from whole salmon develops more

fully, the domestic industry will experience material injury as

subject imports solidify their dominant position in the sale of

cuts.” See Final Determination at 21.
Court No. 98-09-02759 Page 32

It is undisputed that there was a consumer shift in

preference away from whole salmon to salmon cuts. See Final

Determination at 21; Pl.’s Initial App. 3, Commission Final Staff

Report, Public Version at C-6. Commissioner Bragg recognized

this preference shift. See Final Determination, at 21.

Commissioner Bragg’s analysis of the relationship between the

shift in consumer preference for salmon cuts and the effect of

less than fair value imports was permissible. The Asociación

claims that Commissioner Bragg failed to differentiate the two

causes, but the case law is clear that she was not required to

make bright-line distinctions. All Commissioner Bragg was

required to do was to consider the alternative causes of injury

and determine that the injury was “by reason of” the less than

fair value imports. See Gerald Metals, 16 Fed. Cir. (T) at __,

132 F.3d at 722-23. The Commission is not required to isolate

the effects of subject imports from other factors contributing to

injury. SAA at 851; Taiwan Semiconductor, 23 CIT at , 59 F.

Supp. at 1329 n.9. In this case, by considering the shift in

consumer preference to salmon cuts, Commissioner Bragg properly

considered a changing condition of competition in the U.S. market

as a context within which to analyze injury. By discussing such

a context, Commissioner Bragg did not ignore a potential cause of

injury.
Court No. 98-09-02759 Page 33

Commissioner Bragg’s discussion of the vulnerability of the

domestic market due to a shift in consumer preference was not

only permissible, it was required. Congress, in the SAA, makes

clear that “[i]n threat determinations, the Commission must

carefully assess current trends and competitive conditions in the

marketplace to determine the probable future impact of imports on

the domestic industry and whether the industry is vulnerable to

future harm.” SAA at 885. Commissioner Bragg properly

recognized that the demand shift, not itself ascribable to

subject imports, affects the conditions of competition between

increasing subject imports and the domestic industry in the

imminent future.

B. Commissioner Miller’s Determination

The Asociación argues that Commissioner Miller addressed the

evidence of global market forces, but failed to do so adequately.

See Pl.’s Initial Br. at 35-37. The Asociación argues that

Commissioner Miller misunderstood the global price causation

theory, claiming that she considered the existence of a global

market to guarantee a single global price. See id. The

Asociación argues that a global market only guarantees that

prices move together or are correlated.

The Court finds that Commissioner Miller’s causation

analysis was in accordance with law. In her determination,

Commissioner Miller addressed the global market causation
Court No. 98-09-02759 Page 34

argument. The Asociación’s contention that she did not satisfy

the requirement of Gerald Metals has no merit. See 16 Fed. Cir.

(T) at __, 132 F.3d at 722-23. She considered the global market

causation theory to be a “relevant factor,” explicitly evaluated

it, and dismissed it. Chairman Miller’s analysis therefore

satisfied the requirements of 19 U.S.C. § 1677(7)(C)(iii). See

generally Final Determination at 31-32 n.214.

III. Commissioner Bragg’s Analysis of the Margin of Dumping is
Consistent with the Statutory Scheme and is Supported by
Substantial Evidence.

When making an injury determination the Commission is

required to evaluate the magnitude of the dumping margin. See 19

U.S.C. § 1677(7)(C)(iii)(V) (1994). The Asociación argues that

Commissioner Bragg failed to adequately consider the margin of

dumping in her analysis.16 The Asociación also argues that

Commissioner Bragg’s discussion, to the extent that it exists,

misconstrues the statutory scheme and is unsupported by

substantial evidence. See Pl.’s Initial Br. at 40-48.

Commissioner Bragg did adequately consider dumping margins

in the Final Determination, reciting the margins of dumping found

by Commerce and declining to attach any significance to the

margins in this case. Final Determination at 20 n.145. Cf.

Coalition for the Pres. of Am. Brake Drum & Rotor Aftermarket

Mfrs. v. United States, 22 CIT 520, 532, 15 F. Supp. 2d 918, 929

16
See supra note 15.
Court No. 98-09-02759 Page 35

(1998) (“Coalition”) (“[d]espite Plaintiff’s allegation, the ITC

expressly considered and subsequently determined that the

material submitted by Plaintiff was of limited probative value.

See Final Determination at 23, n.127"). The Court does not agree

with the Asociación that Commissioner Bragg’s treatment of the

dumping margins was either contrary to the statutory scheme or

unsupported by substantial evidence. The statute mandates that

Commissioner Bragg address the dumping margins. See 19 U.S.C. §

1677(7)(C)(iii)(V). Here, Commissioner Bragg has done so. The

Asociación alleges that Commissioner Bragg improperly construed

the statutory scheme by dismissing the importance of the dumping

margins in this particular case. Besides simply suggesting that

her conclusion is wrong, the Asociación offers nothing to support

its argument.17 Nothing in the statutory scheme compels

Commissioner Bragg to reach a certain conclusion concerning the

dumping margins -- the statute only compels Commissioner Bragg to

consider such margins. See Coalition, 22 CIT at 523, 15 F. Supp.

2d at 922 (quoting U.S. Steel Group v. United States, 14 Fed.

17
The Asociaion offers Commissioner Crawford’s reasoning as
evidence of the lack of support for Commissioner Bragg’s
position. See Pl.’s Initial Br. at 47; Mitsubishi Materials
Corp. v. United States, 20 CIT 328, 331, 918 F. Supp. 422, 425
(1996) (“the reviewing court may not ‘even as to matters not
requiring expertise . . . displace the [Commission’s] choice
between two fairly conflicting views, even though the court would
justifiably have made a different choice had the matter been
before it de novo’”) (quoting Universal Camera Corp. v. NLRB, 340
U.S. 474, 488 (1951)).
Court No. 98-09-02759 Page 36

Cir. (T) __, __, 96 F.3d 1352, 1362 (1996)); Copperweld Corp. v.

United States, 12 CIT 148, 154-60, 682 F.Supp. 552, 560-565

(1988) (broad discretion in discussion of relevant injury

factors).

CONCLUSION

For all of the foregoing reasons, the Court sustains the

ITC's Final Determination as modified by the three remand

determinations.

________________________________

Senior Judge Richard W. Goldberg

Date: January 9, 2002
New York, New York