The following case, Pesquera Mares Australes Ltda. v. United States, illustrates a typical problem that might face the ITA in determining a “like product.” It is actually one of the more readable opinions in this area of the law. (Most cases deal with far more complex industrial product classifications than salmon.) As you read, consider how the agency made its decision and the deference given to that decision by the Court of Appeals for the Federal Circuit. Pesquera Mares Australes Ltda. v. United States (Chilean Salmon) 266 F.3d 1372 (2001) United States Court of Appeals (Fed. Cir.) BACKGROUND AND FACTS Pesquera Mares Australes, a Chilean salmon exporter, was accused of dumping salmon in the U.S. market at less than fair value. An antidumping petition was filed in 1997 by the Coalition for Fair Atlantic Salmon Trade. The U.S. Department of Commerce (ITA) conducted an investigation to compare the price of the salmon sold in the United States with its “normal value” in the home market. Finding no sales of Mares Australes’ salmon in Chile during that time, ITA based normal value on the price of the salmon sold in
Japan. However, while the salmon sold in the United States was of the “premium” grade, the salmon sold in Japan was of both “premium” and “super-premium” grades. ITA nevertheless found that the salmon sold in Japan and in the United States had “identical physical characteristics” and thus were “like products” as defined by the U.S. statute. ITA then included the price of the super- premium Japanese grade in its determination of normal value. This resulted in the ITA finding a larger dumping margin and imposing higher antidumping duties. The duties were affirmed by the Court of International Trade, and Mares Australes appealed to the Court of Appeals for the Federal Circuit. DYK, CIRCUIT JUDGE * * * [T]he antidumping statute specifically defines “foreign like product,” as … merchandise which is identical in physical characteristics …. In this case ITA…sought to identify salmon sold by Mares Australes to Japan that was “identical in physical characteristics” to salmon exported by that company to the United States. It is ITA’s interpretation of the phrase “identical in physical characteristics” that is at issue. * * * Mares Australes argued that the super-premium salmon it sold to Japan could not be considered “identical in physical characteristics” to the premium grade salmon it sold to the United States. As evidence of this distinction, the company stressed … that certain physical defects (such as external lacerations to the salmon) were present in premium but not super-premium salmon; that super- premium salmon enjoyed a darker, redder color than premium salmon; and that its customers in Japan, recognizing these physical and color distinctions, paid higher prices for premium-grade salmon…. But ITA noted that “the record also contains evidence that the distinctions between the two grades were, in practice, nominal….”
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- Fall '09
- International Trade, World Trade Organization