Slip Op. 00-117

UNITED STATES COURT OF INTERNATIONAL TRADE

BEFORE: RICHARD W. GOLDBERG, JUDGE

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 No. 98-09-02759

Arnold & Porter, (Michael T. Shor and Kevin T. Traskos) for

plaintiff Asociacion de Productores de Salmon y Trucha de Chile

AG.

Lyn M. Schlitt, General Counsel, Office of the General

Counsel, U.S. International Trade Commission; James A. Toupin,

Deputy General Counsel, Office of the General Counsel, U.S.

International Trade Commission; 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. Herrman) for defendant-intervenor

Coalition for Fair Atlantic Salmon Trade.
ORDER

In the original remand order the Court instructed the United

States International Trade Commission (“Commission”) 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.” See Asociacion

de Productores de Salmon y Trucha de Chile AG v. United States

International Trade Commission et al., Court No. 98-09-02759,

Slip Op. 99-58 (July 2, 1999) (“Remand Order”).

After finding that the Commission did not comply with the

Remand Order the Court issued Asociacion de Productores de Salmon

y Trucha de Chile AG v. United States International Trade

Commission et al., Court No. 98-09-02759, Slip Op. 00-87 (July

27, 2000) (“Second Remand Order”) directing the Commission to

“either (1) adjust the 1998 production data for the consolidated

subject producers or (2) justify the determination that the 1998

production data is, as is, the best information available to it.”

In response to the Second Remand Order, on August 28, 2000,

the Commission filed The Commission’s Determination on Remand

(“Second Remand Determination”). In the Second Remand

Determination the Commissioner found, among other things, “that

information necessary to my determination is not available on the

record, and the unadjusted [1998 production] data are the facts

otherwise available for me to reach my determination. 19 U.S.C.

§ 1677e(a).” See Second Remand Determination, at 9 n.27.

The Commission, however, fails to explain how its Second

Remand Determination complies with the statutory requirements for

adopting facts otherwise available. See 19 U.S.C. §§ 1677e,
1677m (1994). Specifically, section 1677e(a) states:

(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 that has been 

requested by the administering authority or the

Commission under this subtitle,

(B) fails to provide such information by the 

deadlines for submission of the information or in

the form and manner requested, subject to

subsections (c)(1) and (e) of section 1677m of

this title,

(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,

the administrating 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)(1994). Section 1677m(d) states:

(d) Deficient submissions

 If the administrating authority or the Commission

determines that a response to a request for information

under this subtitle does not comply with the request,

the administrating 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. If that person submits further information

in response to such deficiency and either -

 (1) the administrating authority or the Commission

(as the case may be) finds that such response is not 

satisfactory, or 

 (2) such response is not submitted within the 

 applicable time limits, 

then the administrating authority or the Commission (as the

case may be) may, subject to subsection (e) of this section, 

disregard all or part of the original and subsequent

responses.

19 U.S.C. 1677m(d)(1994)(emphasis added).

The Court thus remands to the Commission for an explanation

of how the Commission’s decision to refuse to adjust the 1998
production data, and thus use facts otherwise available, complies

with the specific statutory requirements. The Court remands to

the Commission with the hope that the Commission’s explanation

will be responsive, and limited, to the Court’s specific

instructions. Thus, it is hereby

ORDERED that the Commission’s determination, Second Remand

Determination, is remanded in conformance with this order;

ORDERED that Commission shall, within fifteen (15) days of

the date of this Order, issue a remand determination.

ORDERED that the parties may, within ten (10) days of the

date on which the Commission issues its remand determination,

submit memoranda addressing the Commission’s remand

determination, not to exceed five (5) pages in length; and it is

further

ORDERED that the Commission may, within ten (10) days of the

date on which memoranda addressing the Commission's remand

determination are filed, submit a response memorandum, not to

exceed five (5) pages in length.

_____________________

Dated: September 8, 2000 Richard W. Goldberg

New York, New York JUDGE