                         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.
                                           Court No. 98-09-02759
UNITED STATES INTERNATIONAL
TRADE COMMISSION,

          Defendant,

COALITION FOR FAIR ATLANTIC
SALMON TRADE,

          Defendant-Intervenor.



     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
