                          Slip Op. # 08-19

           UNITED STATES COURT OF INTERNATIONAL TRADE

                               :
DUS & DERRICK, INC.,           :
                               :
               Plaintiff,      :
                               :
          v.                   : Before: Richard K. Eaton, Judge
                               :
                               : Court No. 05-00346
UNITED STATES SECRETARY        :
OF AGRICULTURE,                :
                               :
               Defendant.      :
                               :

                              OPINION

[United States Department of Agriculture’s final determination
granting plaintiff’s application for trade adjustment assistance
affirmed.]


                                         Dated: February 6, 2008

     Steven D. Schwinn, for plaintiff.

     Jeffrey S. Bucholtz, Acting Assistant Attorney General;
Jeanne E. Davidson, Director, Commercial Litigation Branch, Civil
Division, United States Department of Justice; Patricia M.
McCarthy, Assistant Director, Commercial Litigation Branch, Civil
Division, United States Department of Justice (Michael J.
Dierberg), for defendant.


     Eaton, Judge:   In Dus & Derrick, Inc. v. United States

Secretary of Agriculture, 31 CIT __, 469 F. Supp. 2d 1326 (2007)

(“Dus & Derrick I”), this court remanded to the United States

Department of Agriculture (the “Department”) its determination

denying plaintiff’s application for cash benefits under the Trade
Court No. 05-00346                                        Page   2

Adjustment Assistance (“TAA”) for Farmers program.     In its

written opinion, the court concluded that the Department’s

regulations were an impermissible interpretation of Congress’s

clear intent embodied in 19 U.S.C. § 2401e(a)(1)(C)(2002).       See

Dus & Derrick I, 31 CIT at __, 469 F. Supp. 2d at 1333.

Specifically, the court found that the Department’s regulations

were unlawful to the extent that: (1) under the facts of this

case, they “provide for the comparison of non-consecutive years

when determining whether a producer has satisfied the statutory

net income requirement;” and (2) they provide for years other

than the “most recent year” and the “latest year” when selecting

the years for comparison.1   Id. at __, 469 F. Supp. 2d at 1335.

Further, the court determined that the Department may not rely

solely on an applicant’s tax returns to deny benefits based on

net income, when other information is properly submitted to the

Department.   Id. at __, 469 F. Supp. 2d at 1337-38.    The court

remanded the matter to the Department with instructions to


     1
        The statutory criteria that must be met in order for an
individual producer to receive a cash payment are as follows:

          (1) Requirements . . .

                (C) The producer’s net farm income (as
                determined by the Secretary) for the most
                recent year is less than the producer’s net
                farm income for the latest year in which no
                adjustment assistance was received by the
                producer under this part.

19 U.S.C. § 2401e(a)(1).
Court No. 05-00346                                          Page   3

construct a methodology for considering Dus & Derrick, Inc.’s

(“Dus & Derrick”) application that comported with the court’s

opinion.2    Id. at __, 469 F. Supp. 2d at 1338.

         The court now reviews the Department’s remand

determination.     See Reconsideration Upon Remand of the


     2
        The court notes a caveat with respect to the language
found in its previous opinion. In Dus & Derrick I, the court
made the following statements:

             For the court, the language of 19 U.S.C.
             § 2401e(a)(1)(C) is clear in its instruction
             that consecutive years must be compared when
             determining whether a producer has satisfied
             the net income requirement.

31 CIT at __, 469 F. Supp. 2d at 1333.     And,

             [A]t least with respect to individual
             applications for benefits made pursuant to
             re-certifications, the court finds that the
             regulations are not a permissible
             interpretation of the statute, which clearly
             expresses Congress’s intent that consecutive
             years be compared.

Id. at __, 469 F. Supp. 2d at 1335.

     There are factual situations, not before this court, to
which these summaries of the law would not apply. Subsection
(a)(1)(C) of 19 U.S.C. § 2401e provides that, as a part of its
application for benefits, a producer must certify that its “net
farm income . . . for the most recent year is less than the
producer’s net farm income for the latest year in which no
adjustment assistance was received by the producer under this
part [19 U.S.C. §§ 2401 et seq.].” (emphasis added).

     Thus, in those cases where a producer has not received TAA
benefits in the year previous to the “most recent year,” the
court’s statements remain true. Where benefits have been
received in the year immediately preceding the “most recent
year,” the statute directs the comparison of non-consecutive
years.
Court No. 05-00346                                         Page     4

Application of Dus & Derrick, Inc. (“Remand Determination”).

Jurisdiction lies under 19 U.S.C. § 2395(c).     For the reasons set

forth below, the Department’s Remand Determination is affirmed.



                             BACKGROUND

     The facts of this case are contained in Dus & Derrick I and

need not be repeated here.   Nonetheless, the sequence of events

leading to that decision and to plaintiff’s application for cash

benefits remains relevant.

     The Texas Shrimp Association (“TSA”) filed a group petition

with the Department in October 2003.      See TAA for Farmers, 68

Fed. Reg. 60,078 (Dep’t of Agric. Oct. 21, 2003) (notice).        The

Department granted the petition on November 19, 2003.      See TAA

for Farmers, 68 Fed. Reg. 65,239 (Dep’t of Agric. Nov. 19, 2003)

(notice) (“Upon investigation, the [Department] determined that

increased imports of farmed shrimp contributed importantly to a

decline in the landed prices of shrimp in Texas by 27.8 percent

during [the] January 2002 through December 2002 [marketing year],

when compared with the previous 5-year [1997 through 2001]

average.”).

     On November 30, 2004, using 2003 as the “marketing year,”

the Department re-certified the TSA and its member producers as

eligible to apply for TAA benefits.    TAA for Farmers, 69 Fed.

Reg. 69,582 (Dep’t of Agric. Nov. 30, 2004) (notice) (“Upon
Court No. 05-00346                                        Page    5

investigation, the [Department] determined that continued

increases in imports of like or directly competitive products

contributed importantly to a decline in the average landed price

of shrimp in Texas by 33.7 percent during the 2003 marketing

period (January-December 2003), compared to the 1997-2001 base

period.”).   In accordance with the re-certification, producers

such as plaintiff became “eligible to apply for fiscal year 2005

benefits during a 90-day period beginning on November 29, 2004

. . . [and] clos[ing] on February 28, 2005.”     Id.

     On January 19, 2005, plaintiff, having never applied under

the original certification, applied for benefits for the first

time under the re-certification.   See Application for Trade

Adjustment Assistance (TAA) of Dus & Derrick, Inc. (“Pl.’s

Application”), Admin. R. (“AR”) at 1.     In reviewing plaintiff’s

application pursuant to its regulations, the Department compared

plaintiff’s net income, as reported on line 28 of its Form 1120

corporate income tax returns, for 2003 as the “marketing year”3

and 2001 as the “pre-adjustment year.”4    See Dus & Derrick I, 31

CIT at __, 469 F. Supp. 2d at 1329-30.    On March 7, 2005, the



     3
       “ Marketing year means the marketing season or year as
defined by National Agriculture Statistic Service (NASS), or a
specific period as proposed by the petitioners and certified by
the Administrator.” 7 C.F.R. § 1580.102 (2005).
     4
       “ Pre-adjustment year means the tax year previous to that
associated with the most recent marketing year in the initial
producer petition.” 7 C.F.R. § 1580.102.
Court No. 05-00346                                       Page    6

Department denied plaintiff’s application stating that plaintiff

was “denied a TAA cash benefit because [it] failed to meet the

net income requirement, in accordance with 7 CFR Part

1580.401(e).”   See Letter from Ronald Lord, Deputy Director

Import Policies and Program Division to Dus & Derrick, Inc. (Mar.

7, 2005), AR at 55.

     The lawfulness of the years compared in determining whether

plaintiff met the net income requirement and the adequacy of the

documentation relied upon by the Department in its net income

analysis were the subjects of the court’s opinion in Dus &

Derrick I.   Relying on the plain language of the statute, the

court ordered the Department to disregard its regulations and

directed it to determine if plaintiff’s net income was “less” in

2004 (“the most recent year”) than in 2003 (“the latest year in

which no adjustment assistance was received by the producer”).

Id. at __, 469 F. Supp. 2d at 1334-35; see also 19 U.S.C.

§ 2401e(a)(1)(C).    As to the adequacy of the evidence used in the

determination, the court directed that plaintiff be given an

opportunity to place on the record further documents relating to

its 2003 and 2004 income.    Dus & Derrick I, 31 CIT at __, 469 F.

Supp. 2d at 1337-38.

     On remand, the Department advised plaintiff that it was re-

opening the record and invited plaintiff to submit any additional

documentation that it wished the Department to consider in making
Court No. 05-00346                                         Page   7

its 2003/2004 net income comparison.5   See Letter from Lana

Bennett, Director, Import and Trade Support Programs Division, to

Dus & Derrick, Inc. (Mar. 20, 2007), Suppl. Admin. R. (“SR”) at

1-2; see also Letter from Lana Bennett, Director, Import and

Trade Support Programs Division, to Dus & Derrick, Inc. (May 2,

2007), SR at 4-5; 7 C.F.R. § 1580.301(e).6


     5
         Specifically, the Department wrote:

           In accordance with the Court’s Order, we are
           providing you an opportunity to submit
           documentation for our consideration in making
           the determination whether the net fishing
           income for 2004, the year which the Court
           states on page 22 of its Order is the most
           recent year, was less than the net fishing
           income for 2003, the year which the Court
           states is the latest year in which no
           adjustment assistance was received by the
           producer.

SR at 1. In its Remand Determination, the Department compared
plaintiff’s net income in the years 2003 and 2004 in reaching its
findings. See Remand Determination at 1; Dus & Derrick I, 31 CIT
at __, 469 F. Supp. 2d at 1335 (“A plain reading of the statute .
. . demands that, for an application made in 2005, net income for
2004 (the ‘most recent year’) must be compared to that earned in
2003 (‘the latest year in which no adjustment assistance was
received by the producer’).”) (footnote omitted). Because the
court concluded that a comparison of the years 2003 and 2004 was
required by the statute, and in light of the Department’s
improper reliance solely on line 28 of plaintiff’s tax returns,
it directed that the record be re-opened for additional
information to be submitted. See Dus & Derrick I, 31 CIT at __,
469 F. Supp. 2d at 1338.
     6
        The Department’s second letter, dated May 2, 2007,
advised plaintiff that it had no information regarding
plaintiff’s 2004 net income, including plaintiff’s 2004 tax
return. SR at 4. This letter also appears to reflect the
Department’s belief that its proposed methodology upon remand
                                                   (continued...)
Court No. 05-00346                                           Page   8

       Plaintiff responded to the Department’s letters by a May 30,

2007 letter.       See Letter from Susie Jackson, Bookkeeper, to

Import and Trade Support Programs Division (May 30, 2007), SR at

6-7.       This letter submitted “additional information” with respect

to plaintiff’s tax return for the calendar year 2004 and

explained plaintiff’s reasons for asking the Department to

consider information other than that found on Line 28 of its tax

returns.       See SR at 6-7.

       On June 20, 2007, the Department issued its Remand

Determination, finding that plaintiff’s tax returns indicated

that plaintiff’s “net fishing income for 2004, the year which the

Court states is the most recent year, was less than [plaintiff’s]

net fishing income for 2003, the year which the Court states is

the latest in which no adjustment assistance was received by”

plaintiff.       Remand Determination at 1.   The Department compared

Line 28 of plaintiff’s 2003 tax return (showing plaintiff’s 2003

taxable income before net operating loss deductions and special

deductions) to the corresponding Line 28 of plaintiff’s 2004

return, and concluded that its net income declined between those

years, and thus that plaintiff was eligible for TAA cash

benefits.       See id.   The Department then found plaintiff eligible

to receive the statutory maximum TAA payment of $10,000.00.         Id.


       6
      (...continued)
comported with the court’s analysis in Dus & Derrick I.        See SR
at 4.
Court No. 05-00346                                        Page   9

at 2.

     Plaintiff filed comments to the Remand Determination on July

11, 2007.   See Pl.’s Comments Reconsideration Upon Remand (“Pl.’s

Comments”).   Plaintiff’s Comments concurred with the results of

the Remand Determination to the extent that the Department found

that plaintiff’s net income declined from 2003 to 2004, and that

plaintiff was eligible to receive $10,000.00 in TAA benefits.

Plaintiff asked the court to issue a final judgment affirming the

Remand Determination’s results and to order the Department to pay

plaintiff $10,000.00.7   See Pl.’s Comments at 1-2.



                         STANDARD OF REVIEW

     This court has “jurisdiction to affirm the action of . . .

the Secretary of Agriculture . . . or to set such action aside,

in whole or in part.”    19 U.S.C. § 2395(c).   The Department’s TAA



        7
        While agreeing with the result, plaintiff appears to
argue that the manner in which the Department arrived at that
result was somehow improper. See Pl.’s Comments 1. The
Department’s July 23, 2007 response, on the other hand, asks for
affirmance on those grounds invoked by the Department. See
Def.’s Resp. Pl.’s Comments Upon Remand (“Def.’s Resp.”) 1, 4.
The Department states that plaintiff did not identify any errors
in the Remand Determination. Def.’s Resp. 3-4. It points to the
Supreme Court’s decision in Securities & Exchange Commission v.
Chenery Corp., 318 U.S. 80, 87-88 (1943), to support the position
that “an agency’s decision generally may only be affirmed upon
the grounds relied upon by the agency.” Def.’s Resp. 3. The
Department is correct in its contention that, because plaintiff
did not identify any errors in its analysis, the court need not
address whether or not the Department’s determination could be
sustained on alternative grounds. Def.’s Resp. 4.
Court No. 05-00346                                         Page   10

eligibility determination should be upheld if supported by

substantial evidence and otherwise in accordance with law.        See

19 U.S.C. § 2395(b).   The court “for good cause shown, may remand

the case to [the Department] to take further evidence, and [it]

may thereupon make new or modified findings of fact and may

modify [its] previous action”); Former Employees of Swiss Indus.

Abrasives v. United States, 17 CIT 945, 947, 830 F. Supp. 637,

639-40 (1993).   The scope of review of an agency’s actions is

limited to the administrative record.      Defenders of Wildlife v.

Hogarth, 25 CIT 1309, 1315, 177 F. Supp. 2d 1336, 1342-43 (2001).



                              DISCUSSION

     Upon remand, the Department was obligated to “adhere closely

to the court’s outstanding order[].    Failure to do so

unnecessarily absorbs the time of counsel and the court, does not

promote respect for the rule of law, and may result in sanctions

in unfortunate cases.”     Vertex Int’l, Inc. v. United States, 30

CIT __, __, Slip Op. 06-35 at 1 (Mar. 8, 2006) (not reported in

the Federal Supplement).    Here, the Department’s actions upon

remand comported with the court’s opinion in Dus & Derrick I.

This is demonstrated by the Department’s actions in: requesting

more information from plaintiff in its March 20, 2007 letter (see

SR at 1-3); advising plaintiff of its intention to use 2003 and

2004 as the years of comparison (see SR at 4-5); and, explaining
Court No. 05-00346                                         Page   11

its decision for granting plaintiff’s application in the Remand

Determination.

     In addition, while there may be further evidence that could

have supported its findings, the Department has cited evidence

sufficient to satisfy the substantial evidence test.      That is,

having found that a comparison of line 28 of plaintiff’s tax

returns for the years 2003 and 2004 demonstrated that plaintiff’s

“net . . . income . . . for the most recent year is less than . .

. for the latest year in which no adjustment assistance was

received by the producer under this part” the Department did not

find it necessary to examine any of the other evidence submitted

by plaintiff.    See 19 U.S.C. § 2401e(a)(1)(C); Remand

Determination at 1; see also Former Employees of Merrill Corp. v.

United States, 31 CIT __, __, 483 F. Supp. 2d 1256, 1264 (2007)

(“Substantial evidence must be sufficient to reasonably support

the agency’s conclusion and must be more than a mere scintilla.”)

(citing Ceramica Regiomontana, S.A. v. United States, 10 CIT 399,

405, 636 F. Supp. 961, 966 (1986), aff’d, 810 F.2d 1137 (Fed.

Cir. 1987)) (internal quotations and citation omitted).      Thus,

because a comparison of plaintiff’s 2003 and 2004 tax returns is

sufficient to justify a finding that plaintiff satisfied the

requisite decline in net income under 19 U.S.C. § 2401e(a)(1)(C)8


     8
        See also 7 C.F.R. § 1580.301(e)(4) (requiring plaintiff
to “[certify] that net farm or fishing income was less than that
                                                   (continued...)
Court No. 05-00346                                      Page   12

and, because plaintiff met all the other statutory requirements,

it is eligible to receive TAA benefits.

     While the Department has complied with the court’s remand

instructions, it has indicated that it does not agree with the

court’s conclusions in Dus & Derrick I.9   See Remand

Determination at 1.   Thus, the Department continues to maintain

that this court must accord Chevron deference to its

interpretation of the statute.10   It is appropriate, therefore,

     8
      (...continued)
during the producer’s pre-adjustment year”).
     9
        The Department’s Remand Determination states that the
“agency respectfully disagrees with the Court that 2004
constitutes the most recent year and that 2003 constitutes the
latest year in which no assistance was received by the producer.”
Remand Determination at 1. It indicates that it compared these
years “under protest” and that plaintiff is eligible to receive
cash benefits “[i]f this Court’s decision is the final decision
after all opportunities for appeal have been exhausted.” Id.
     10
        When a court reviews an agency’s construction of a
statute which it administers, it uses the two-step process set
forth in Chevron U.S.A. Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837, 842–43 (1984) (“Chevron”). The
first step looks at whether Congress has spoken directly to the
issue and the second, where Congress’s intent is unclear, looks
at “whether the agency’s answer is based on a permissible
construction of the statute.” Chevron, 467 U.S. at 842-43. “If
Congress has spoken and its intent is clear, the court and the
agency must give effect to that objective.” Former Employees of
Fisher & Co., Inc. v. United States Dep’t of Labor, 30 CIT __,
507 F. Supp. 2d 1321, 1325 (2006); see also Bd. of Governors of
the Fed. Reserve Sys. v. Dimension Fin. Corp., 474 U.S. 361, 368
(1986) (stating that a court’s deference cannot allow an agency
to deviate from the clearly expressed intent of Congress). The
only issue then becomes whether the agency’s action contravenes
Congress’s intent. See Adair v. United States, 497 F.3d 1244,
1252 (Fed. Cir. 2007); Agro Dutch Foods Ltd. v. United States, 24
                                                   (continued...)
Court No. 05-00346                                       Page    13

to briefly restate the reasons for the court’s conclusions here.

     In Dus & Derrick I, the court instructed the Department to

construct a methodology that would result in a comparison of net

income for 2003 with that of 2004.   The court’s instruction was

based on the facts of this case.   Here, Dus & Derrick did not

receive any benefits in 2004, the year prior to its application.

As a result, a comparison of consecutive years is directed by the

statute.   That is, the statute directs that a producer must

demonstrate that its net income for the “most recent year” is

less than its net income for the “latest year in which no

adjustment assistance was received by the producer . . . .”      19

U.S.C. § 2401e(a)(1)(C) (emphasis added).   For the court, this is

a clear statutory direction to the Department to compare 2004

(the “most recent year” to Dus & Derrick’s application) to 2003

(the latest year in which no benefits were received by

plaintiff).   Therefore, the court found in Dus & Derrick I, that

“[a]s applied to the facts of this case . . . the language of 19

U.S.C. § 2401e(a)(1)(C) is clear in its instruction that

consecutive years must be compared when determining whether a



     10
      (...continued)
CIT 510, 515, 110 F. Supp. 2d 950, 956 (2000) (concluding that
Congress’s intent was clear, rejecting plaintiff’s argument to
the contrary, and not reaching Chevron’s second step); Torres v.
Office of Pers. Mgmt., 124 F.3d 1287, 1290 (Fed. Cir. 1997)
(“Because the meaning of the statute is clear and Congress has
spoken, we do not reach [defendant’s] argument regarding the
asserted reasonableness of the agency’s interpretation.”).
Court No. 05-00346                                        Page   14

producer has satisfied the net income requirement.”   Dus &

Derrick I, 31 CIT at __, 469 F. Supp. 2d at 1333.

     The court also found that the statute contained the clear

instruction that 2004 and 2003 were the years to be compared.

See id. at __, 469 F. Supp. 2d at 1345 (“A plain reading of the

statute . . . demands that, for an application made in 2005, net

income for 2004 (the ‘most recent year’) must be compared to that

earned in 2003 (‘the latest year in which no adjustment

assistance was received by the producer’).”)(footnote omitted).

     As noted, the Department’s regulations provide for a

different comparison.   Under the regulations, individual

producers must demonstrate that their net income for the

“marketing year”11 “was less than that during the producer’s



     11
        Under 7 C.F.R. § 1580.301, the two years that must be
compared are found by referencing the regulation’s definitions.
Pursuant to the regulation, individual producers must “certif[y]
that net . . . fishing income was less than that during the
producer’s pre-adjustment year,” but the regulation does not
itself state which year’s income must be less than that of the
“pre-adjustment year.” See 7 C.F.R. § 1580.301(e)(4). The
definition of “net fishing income,” however, provides guidance.
“Net fishing income means net profit or loss, excluding payments
under [C.F.R. Part 1580], reported to the Internal Revenue
Service for the tax year that most closely corresponds with the
marketing year under consideration.” 7 C.F.R. § 1580.102.
“Marketing year” is defined as “the marketing season or year as
defined by National Agriculture Statistic Service (NASS), or a
specific period as proposed by the petitioners and certified by
the [Department].” 7 C.F.R. § 1580.102. The Department’s TAA
application for individual producers, however, does not use the
term “marketing year,” but instead uses the term “Crop Year,”
though not in its “Producer Certification” provision. See, e.g.,
Pl.’s Application, AR at 1.
Court No. 05-00346                                       Page    15

pre-adjustment year.”   See 7 C.F.R. § 1580.301(e)(4).   The

“pre-adjustment year” is defined as “the tax year previous to

that associated with the most recent marketing year in the

initial producer petition.”   See 7 C.F.R. § 1580.102.   According

to the Department, the “initial producer petition” is “the

initial petition filed by the group of producers, in this case

the Texas Shrimp Association . . . [and] does not refer to the

individual producer’s initial application for benefits.”       See

Def.’s Resp. to Pl.’s Mot. for J. Agency R. (“Def.’s Resp. J.

Agency R.”) 8-9.   Thus, the regulations direct that Dus &

Derrick’s 2005 application for individual benefits result in a

comparison of 2003, the group’s “marketing year,” to 2001, the

group’s “pre-adjustment year.”   As a result, the regulations do

not provide for a comparison of years based on the producer’s

most recent experience, as directed by the statute.   Rather, the

regulations make the comparison between the “marketing year” in

the group’s petition for benefits, with the group’s “pre-

adjustment year.” See 7 C.F.R. § 1580.301.

     As was stated in Dus & Derrick I:

          [T]he court finds that the language of the
          statute did not invite the Department to
          devise an alternative definition for the
          phrase “most recent year.” For the court,
          that phrase can only refer to the year
          preceding that of the application. The
          statutory phrase “is less than” clearly
          indicates that a comparison is to be made
          between two years. Plaintiff was denied
          benefits based on a comparison between 2003
Court No. 05-00346                                        Page    16

          as the marketing year to 2001 as the
          pre-adjustment year. A plain reading of the
          statute, however, demands that, for an
          application made in 2005, net income for 2004
          (the “most recent year”) must be compared to
          that earned in 2003 (“the latest year in
          which no adjustment assistance was received
          by the producer”).12

31 CIT at __, 469. F. Supp. 2d at 1335 (footnote omitted).       It is

worth noting that the Department does not argue that 2003 is the

latest year for which information was available.   Nor does the

Department argue for the reasonableness of its regulation based

on the availability of information or efficiency of

administration.   Rather, the Department merely insists that the

years chosen for comparison in its regulations are a reasonable

interpretation of the words of the statute.   See generally Def.’s

Resp. J. Agency R. 8-11.

     Notwithstanding the Department’s arguments, Chevron

deference does not extend to regulations that clearly violate the



     12
        As time passes, the Department’s regulations could
produce results unlikely to conform to the TAA’s purposes. See
generally Trade Act of 1974, Pub. Law 93-618, 88 Stat. 1978
(1975). Such results could occur, for example (assuming the
continued existence of the TAA program and that TSA members
remained eligible to apply for benefits), if the Department
continued to re-certify the TSA annually beyond 2005, through
2010. If, in 2011, a producer, who never applied under any
previous certification, applied for benefits under a 2010 re-
certification, the following would occur.

     The Department would compare the producer’s net income from
2001, the “pre-adjustment year,” with the “marketing year” that
was used in the petition for re-certification, which would be
2009.
Court No. 05-00346                                          Page   17

intent of Congress.    See Chevron, 467 U.S. at 843 n.9 (“The

judiciary is the final authority on issues of statutory

construction and must reject administrative constructions which

are contrary to clear congressional intent.”).    As the Federal

Circuit recently stated:

            When Congress has spoken clearly, through the
            use of unambiguous words . . . neither [an
            administrative agency] nor this Court is
            “permitted to substitute [its] own definition
            for that of Congress, regardless of how close
            the substitution may come to achieving the
            same result as the statutory definition, or
            perhaps a result that is arguably better.”

See Agro Dutch Indus. Ltd. v. United States, 508 F.3d 1024, 1033

(Fed. Cir. 2007) (quoting AK Steel Corp. v. United States, 226

F.3d 1361, 1372 (Fed. Cir. 2000) (second alteration in original).



                             CONCLUSION

     In accordance with the court’s instructions, the Department

has now compared consecutive years and found that a comparison of

plaintiff’s tax returns for the years 2003 and 2004 demonstrates

a decline in income.

     Therefore, for the reasons stated, the Department’s Remand

Determination complies with the remand instructions and is

affirmed.

                                            /s/Richard K. Eaton
                                               Richard K. Eaton

Dated: February 6, 2008
       New York, New York
