Asociaciónde Exportadores Eindustriales De Aceitunas De Mesa, Agro Sevilla Aceitunas… v. United States, Coalition for Fair Trade in Ripe Olives

United States Court of Appeals
for the Federal Circuit
______________________
ASOCIACIÓN DE EXPORTADORES E
INDUSTRIALES DE ACEITUNAS DE MESA, AGRO
SEVILLA ACEITUNAS S. COOP. AND., ANGEL
CAMACHO ALIMENTACIÓN, S.L.,
Plaintiffs-Appellants
ACEITUNAS GUADALQUIVIR, S.L.U.,
Plaintiff
v.
UNITED STATES, COALITION FOR FAIR TRADE
IN RIPE OLIVES,
Defendants-Appellees
______________________
2023-1162
______________________
Appeal from the United States Court of International
Trade in No. 1:18-cv-00195-GSK, Judge Gary S.
Katzmann.
______________________
Decided: May 20, 2023
______________________
MATTHEW P. MCCULLOUGH , Curtis, Mallet-Prevost,
Colt & Mosle LLP, Washington, DC, argued for plaintiffs-
appellants. Also represented by J AMES BEATY , J AMES P.
D URLING, D ANIEL L. P ORTER .
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T ARA K. H OGAN, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, argued for defendant-appellee United States. Also
represented by BRIAN M. BOYNTON, P ATRICIA M.
MCCARTHY , SONIA W. MURPHY ; ELIO G ONZALEZ, Office of
the Chief Counsel for Trade Enforcement and Compliance,
United States Department of Commerce, Washington, DC.
RAYMOND P ARETZKY , McDermott Will & Emery LLP,
Washington, DC, argued for defendant-appellee Coalition
for Fair Trade in Ripe Olives. Also represented by D AVID
J OHN L EVINE .
______________________
Before P ROST , BRYSON, and STARK, Circuit Judges.
BRYSON, Circuit Judge.
Appellants, three organizations of Spanish olive pro-
ducers (collectively “Asemesa”), appeal from a decision of
the Court of International Trade (“the Trade Court”) re-
garding a countervailing duty imposed on olives imported
from Spain. Asemesa argues that an order from the De-
partment of Commerce imposing a countervailing duty on
imported olives was contrary to law and that the Trade
Court should have overturned the order. The United
States and the Coalition for Fair Trade in Ripe Olives ar-
gue that Commerce’s factual findings were supported by
substantial evidence and that the Trade Court’s decision
should be upheld. We affirm.
I
1. Under the Tariff Act of 1930, Congress authorized
the Department of Commerce to impose countervailing du-
ties as needed to offset subsidies granted by foreign coun-
tries on goods exported to the United States. See Sioux
Honey Ass’n v. Hartford Fire Ins. Co., 672 F.3d 1041, 1046–
47 (Fed. Cir. 2012). If, after an investigation, Commerce
finds that there was such a subsidy for particular imported
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products, the International Trade Commission is required
to conduct a parallel investigation to determine whether a
domestic industry is being injured, threatened with being
injured, or kept from being established by the subsidized
imports. If the two agencies both make affirmative find-
ings, Commerce is required to impose “a countervailing
duty . . . equal to the amount of the net countervailable
subsidy.” 19 U.S.C. § 1671(a).
A foreign government will sometimes subsidize the pro-
duction of raw agricultural products, which are then pro-
cessed into finished goods before they are imported into the
United States. In such cases, it would be futile for Com-
merce to impose a duty on the subsidized raw product,
which is not the product that is imported, so Commerce is
authorized, in certain instances, to impose a duty on the
finished product. In particular, Commerce is allowed to
impose a countervailing duty on finished agricultural prod-
ucts with subsidized raw ingredients, but only if “the de-
mand for the prior stage product is substantially
dependent on the demand for the latter stage product, and
the processing operation adds only limited value to the raw
commodity.” 19 U.S.C. § 1677–2.
2. The European Union’s Common Agricultural Policy
includes subsidies for raw olives. Those subsidies are pro-
vided to Spanish farmers through the EU’s “Basic Payment
Scheme,” which provides direct subsidies to Spanish olive
growers who meet its eligibility requirements.
Olives are rarely sold to consumers in raw form. The
majority of olives are processed into olive oil. Even table
olives, however, require significant processing. Raw olives
are extremely bitter and must be cured to remove that nat-
ural bitterness before being consumed as table olives.
Olive varietals can be divided into three biologically
distinct categories. “Mill” varietals are those that natu-
rally produce olives suitable for processing into olive oil.
“Table” varietals yield olives suitable for eating. “Dual-
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use” varietals can produce olives suitable for either appli-
cation, depending on the manner in which they are culti-
vated. Mill olives are cultivated according to practices that
maximize oil production, whereas table olives are culti-
vated following practices that maximize size and flavor.
Dual-use varietals are cultivated in different ways depend-
ing on whether they are intended to produce table olives or
mill olives.
3. Following an investigation, Commerce published a
preliminary determination in November 2017, in which it
found that countervailable subsidies were being provided
to producers and exporters of ripe olives from Spain. On
July 25, 2018, the International Trade Commission noti-
fied Commerce that it had determined that the domestic
olive industry was materially injured by the importation of
subsidized table olives from Spain. Commerce then im-
posed a countervailing duty on imported Spanish table ol-
ives pursuant to its authority under 19 U.S.C. §§ 1671(a)
and 1677–2. Ripe Olives from Spain, 83 Fed. Reg. 37469
(Dep’t of Commerce Aug. 1, 2018).
4. Asemesa challenged Commerce’s imposition of the
duty on Spanish table olives. Asemesa argued that Com-
merce had failed to show that the market for raw olives was
“substantially dependent” on the market for table olives, as
required by 19 U.S.C. § 1677–2. At that time, Commerce
had defined the prior stage product as all raw olives and
had defined the latter stage product as table olives. Em-
ploying data from the Spanish government, Commerce
found that 8 percent of all Spanish raw olives were ulti-
mately sold as table olives. Based on the evidence before
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it, Commerce found that the demand for raw olives was
substantially dependent on the demand for table olives.1
The Trade Court reversed Commerce. Asociación de
Exportadores e Industriales de Aceitunas de Mesa v. United
States (Asemesa I), 429 F. Supp. 3d 1325 (Ct. Int’l Trade
2020). The court concluded that the evidence that table ol-
ives accounted for 8 percent of the demand for raw olives
did not show that the demand for raw olives was “substan-
tially dependent” on the demand for table olives. Id. at
1344. The court further held that “Commerce deviated
from its past interpretation of ‘substantially dependent,’
which [Commerce] previously found to include most or at
least half of the demand of the raw agricultural product.”
Id. at 1345. Accordingly, the court remanded the case to
Commerce for further analysis. Id. at 1352.
5. On remand, Commerce redefined the market for the
prior stage product as the raw olives that the olive industry
considers principally suitable for use in the production of
table olives, i.e., olives from table olive varietals and dual-
use varietals that are cultivated for processing into table
olives. Nearly all olives that are cultivated to produce table
olives are ultimately processed into table olives. See J.A.
11241 (reporting that 96 percent of such olives were pro-
cessed into table olives in 2016, the relevant year for pur-
poses of this case).
Once again, the Trade Court rejected Commerce’s anal-
ysis. The court reasoned that Commerce’s market defini-
tion would “render the requirements of Section 1677–2
largely self-fulfilling.” Asociación de Exportadores e Indus-
triales de Aceitunas de Mesa v. United States (Asemesa II),
523 F. Supp. 3d 1393, 1407 (Ct. Int’l Trade 2021). Although
1 It is undisputed that the second requirement of sec-
tion 1677–2, that “the processing operation adds only lim-
ited value to the raw commodity,” was satisfied in this case.
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ASOCIACIÓN DE EXPORTADORES E INDUSTRIALES v. US 6
the Trade Court rejected Commerce’s definition of the rel-
evant market, it agreed with Commerce that the relevant
market for the prior stage product need not be all olives
grown in Spain. Accordingly, the court remanded the case
to Commerce for a second time to correctly define the rele-
vant market for the prior stage product and analyze
whether the demand for the prior stage product was sub-
stantially dependent on the demand for table olives.
6. Commerce again redefined the relevant market for
the prior stage product, this time defining that market as
consisting of the olives from varietals that the Spanish gov-
ernment considers suitable for processing into table olives,
including dual-use varietals.2 Those varietals include
manzanilla, gordal, carrasqueña, and hojiblanca olives.
Cacereña and “other” dual-use varietal olives also fit Com-
merce’s new market definition; however, Commerce did not
have reliable data on the processing of those varietals, so it
excluded them from its analysis. The Spanish government
considers manzanilla, gordal, and carrasqueña olives suit-
able only for processing into table olives. It considers ho-
jiblanca and cacereña olives to be dual-use varietal olives,
suitable for use as either table olives or in the production
of olive oil.
Relying on data from the Spanish government and the
Agencia de Información y Control Alimentarios (the Span-
ish Food Information and Control Agency, or “AICA”),
Commerce calculated that 55.28 percent of all olives from
varietals suitable for processing into table olives were in-
deed sold as table olives. J.A. 62. Commerce adopted the
2 That market definition differs from the market
Commerce identified in Asemesa II because that market
definition includes all olives from table and dual-use vari-
etals. In Asemesa II, Commerce’s market definition ex-
cluded olives from table and dual-use varietals that were
cultivated for olive oil.
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ASOCIACIÓN DE EXPORTADORES E INDUSTRIALES v. US 7
Trade Court’s interpretation of the “substantially depend-
ent” provision in section 1677–2 as requiring that more
than half of the prior stage product be processed into the
relevant finished good. Accordingly, Commerce deter-
mined that the demand for olive varietals suitable for pro-
cessing into table olives was substantially dependent on
the demand for table olives, and that a countervailing duty
on table olives from Spain was warranted to offset the sub-
sidies provided to Spanish olive growers.
This time, the Trade Court sustained Commerce’s
analysis. Asociación de Exportadores e Industriales de
Aceitunas de Mesa v. United States (Asemesa III), 589 F.
Supp. 3d 1346 (Ct. Int’l Trade 2022).
7. Asemesa now appeals the Trade Court’s determina-
tion in Asemesa III. Asemesa argues that Commerce’s in-
terpretation of the statute was contrary to law, and that
Commerce’s factual analysis was not supported by sub-
stantial evidence. Although our interpretation of section
1677–2 and our analysis of the factual record in this case
differ from the Trade Court’s, we agree with that court’s
ultimate conclusion on both issues.
II
A
Section 1677–2 was designed to empower Commerce to
address attempts to circumvent countervailing duty liabil-
ity. Enacted as part of the Omnibus Trade and Competi-
tiveness Act of 1988, section 1677–2 authorized Commerce
to impose countervailing duties on processed agricultural
goods that were not themselves subsidized but were made
from subsidized raw products.
Senator Baucus, one of the proponents of section 1677–
2, explained that its purpose was “to fix a glitch in the law.”
133 Cong. Rec. 17,765 (1987). Under the statutory scheme
in place prior to the enactment of section 1677–2, the Trade
Court had held that Commerce lacked the power to impose
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ASOCIACIÓN DE EXPORTADORES E INDUSTRIALES v. US 8
countervailing duties on finished agricultural goods when
the producers of those goods benefitted from subsidies re-
ceived by producers of the raw agricultural products that
were used to prepare those goods. See Canadian Meat
Council v. United States (Pork from Canada), 661 F. Supp.
622 (Ct. Int’l Trade 1987).
In Pork from Canada, Canada subsidized live swine,
but not processed pork meats, which were the products im-
ported into the United States. Commerce imposed a coun-
tervailing duty on the processed pork in order to offset the
Canadian subsidies on live swine.3 Before the Trade Court,
however, the Canadian pork producers successfully argued
that Commerce lacked statutory authority to impose a
countervailing duty on pork when the subsidy was only on
swine.
Section 1677–2 empowered Commerce to combat the
circumvention of existing countervailing duty law in that
manner. 133 Cong. Rec. 17,765 (characterizing the out-
come in Pork from Canada as “disturbing”); see also Pork
from Canada, 661 F. Supp. at 629 (proposing that, “[i]f the
statutory approach to upstream subsidies [was] inade-
quate,” it was up to “Congress to remedy any deficiency”).
Section 1677–2 prescribes the conditions under which
Commerce may treat a subsidy on a raw agricultural prod-
uct as a subsidy on the finished good for countervailing
duty purposes. In full text, section 1677–2 provides:
3 Commerce’s theory was that, under the statutory
scheme in place prior to the 1988 Act, swine was an input
product used in the production of pork, making the subsidy
on swine an “upstream subsidy” on pork subject to counter-
vailing duty law. See 19 U.S.C. § 1671(g) (repealed 1988)
(providing that Commerce may consider “upstream subsi-
dies” for countervailing duty purposes).
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ASOCIACIÓN DE EXPORTADORES E INDUSTRIALES v. US 9
In the case of an agricultural product processed from a
raw agricultural product in which—
(1) the demand for the prior stage product is substan-
tially dependent on the demand for the latter stage
product, and
(2) the processing operation adds only limited value to
the raw commodity,
countervailable subsidies found to be provided to either
producers or processors of the product shall be deemed
to be provided with respect to the manufacture, produc-
tion, or exportation of the processed product.
B
The central question in this case is what it means for
the demand for a prior stage product to be “substantially
dependent” on the demand for a latter stage product within
the meaning of section 1677–2.
1
Asemesa argues that section 1677–2 was meant to cod-
ify Commerce’s original approach in Pork from Canada, 50
Fed. Reg. 25097 (Dep’t of Commerce June 17, 1985), and
Rice from Thailand, 51 Fed. Reg. 12356-02 (Dep’t of Com-
merce April 10, 1986), the two cases that led Congress to
add section 1677–2 to the Tariff Act. Asemesa cites a state-
ment by Senator Grassley, a proponent of section 1677–2,
describing “the rule codified in the proposed amendment”
as the rule Commerce applied in Pork from Canada and
Rice from Thailand. 133 Cong. Rec. 17765; see also H.R.
Rep. No. 100-576, 588 (1988) (“The Senate amendment cod-
ifies and clarifies Commerce[’s] practice.”).
In Pork from Canada, Commerce found that the de-
mand for slaughtered and quartered swine is “by far the
predominant determinant of the demand for live swine.”
50 Fed. Reg. at 25099. In Rice from Thailand, Commerce
stated that “an important criterion is the degree to which
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ASOCIACIÓN DE EXPORTADORES E INDUSTRIALES v. US 10
the demand for the prior stage product is dependent on the
demand for the latter stage product.” 51 Fed. Reg. at
12358. Commerce explained that “[a]lmost all of the raw
agricultural product, paddy or unmilled rice, is dedicated
to the production of milled rice,” id., which Commerce re-
garded as sufficient to justify imposing a countervailing
duty on the imported milled rice.
Asemesa’s position is that to be substantially depend-
ent, “‘all or substantially all’ of the demand for the prior
stage product must be driven by demand for the latter
stage product.” Asemesa Br. 40. Asemesa’s position is es-
sentially that section 1677–2 should be limited to cases in
which the degree of dependence is identical to or more ex-
treme than those in Pork from Canada or Rice from Thai-
land.
Asemesa is correct that those cases provided the incen-
tive for Congress to add section 1677–2 to the Tariff Act.
But there is no support for Asemesa’s further proposition
that the meaning of “substantially dependent” in the stat-
ute requires that the demand for the prior stage product
must be, at a minimum, as dependent on the demand for
the latter stage products as it was in those two cases.
Asemesa’s position is contrary to the plain language of
the statute. Had Congress intended the statute to track
the facts of Pork from Canada and Rice from Thailand, it
could have parroted the language of those decisions. In-
stead, Congress’s choice of “substantially dependent” cap-
tures the rationale of those decisions while setting a more
flexible standard for Commerce to meet.
Senator Grassley’s comment that the statute “codified”
Pork from Canada and Rice from Thailand does not mean
that the reach of the statute was confined to the facts of
those cases. To begin with, “floor statements by individual
legislators rank among the least illuminating forms of leg-
islative history.” NLRB v. SW Gen., Inc., 580 U.S. 288, 307
(2017). But even if we were to assign substantial weight
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ASOCIACIÓN DE EXPORTADORES E INDUSTRIALES v. US 11
tothose statements, it is implausible to assume that Sena-
tor Grassley used the term “codify” to suggest that section
1677–2 should be limited to the exact circumstances of
those cases, when the plain text suggests otherwise. A
more reasonable interpretation of Senator Grassley’s com-
ments is that section 1677–2 was meant to create a statu-
tory basis for Commerce to apply countervailing duty
principles in cases such as Pork from Canada and Rice
from Thailand, but not to confine the application of the
statute to circumstances identical to, or more extreme
than, in those cases.
2
The Trade Court interpreted section 1677–2, as applied
to this case, to mean that the demand for raw olives would
be substantially dependent on the demand for table olives
only if table olives accounted for “at least half” of the mar-
ket for raw olives from table and dual-use varietals. Ase-
mesa I, 429 F. Supp. 3d at 1345. We do not agree with the
Trade Court that the statute imposes a test requiring that
at least 50 percent of the prior stage product be processed
into the latter-stage product for section 1677–2 to apply.
The statutory term “substantially dependent” is gen-
eral in nature, indicating that Congress intended to dele-
gate the question of whether particular facts satisfy the
statute’s requirements to Commerce. “Congress . . . may
confer substantial discretion on executive agencies to im-
plement and enforce the laws.” Gundy v. United States,
139 S. Ct. 2116, 2130 (2019).4 By using nonspecific
4 Gundy addressed a challenge to agency rulemaking
under the nondelegation doctrine, whereas this case con-
cerns agency adjudication. Statutory interpretation, how-
ever, is key to nondelegation cases, Gundy, 139 S. Ct. at
2123 (“[A] nondelegation inquiry always begins . . . with
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ASOCIACIÓN DE EXPORTADORES E INDUSTRIALES v. US 12
statutory language, Congress invokes its “ability to dele-
gate power under broad general directives.” Id. Here, Con-
gress’s use of the term “substantially dependent,” as
opposed to specifying a minimum percentage, reflects “an
expression of its well-considered judgment as to the degree
of administrative authority which it was necessary to
grant.” Lichter v. United States, 334 U.S. 742, 784 (1948)
(addressing a statute instructing agency to determine
whether contracts resulted in “excessive profits,” but not
specifying what qualified as “excessive”).5
In United States v. Zenith Radio Corp., a leading case
dealing with countervailing duties, our predecessor court
adopted the same rationale. 562 F.2d 1209 (CCPA 1977),
aff’d, 437 U.S 443 (1978). The court held that Congress’s
use of the terms “bounty” and “grant,” which were “broad
but not ambiguous,” demonstrated “Congress’[s] intent to
provide a wide latitude, within which the Secretary of the
Treasury . . . may determine the existence or non-existence
of a bounty or a grant.” Id. at 1216 (crediting, in particular,
Congress’s “refusal to define the words ‘bounty,’ ‘grant,’ or
‘net amount’”). The court added:
Not without reason has Congress refrained from
spelling out either the precise criteria for determining
what shall constitute a bounty or grant and what shall
statutory interpretation.”), a principle that applies
whether the delegation is of rulemaking or adjudicative au-
thority.
5 Justice Scalia made the point succinctly in his dis-
senting opinion in Mistretta v. United States, 488 U.S. 361,
417 (1989) where he wrote that “a certain degree of discre-
tion, and thus of lawmaking, inheres in most executive or
judicial action, and it is up to Congress, by the relative
specificity or generality of its statutory commands, to de-
termine—up to a point—how small or how large that de-
gree shall be.”
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ASOCIACIÓN DE EXPORTADORES E INDUSTRIALES v. US 13
not, or the calculations to be followed in determining
net amount. . . . “In the assessment of a countervailing
duty, the determination that a bounty or grant is paid
necessarily involves judgments in the political, legisla-
tive or policy spheres.”
Id. at 1217 (quoting United States v. Hammond Lead
Prods., Inc., 440 F.2d 1024, 1030 (CCPA 1971)).
Applying the same principle, we have held that simi-
larly general language used in a related provision of the
antidumping statute committed to Commerce’s discretion
the question of whether particular facts satisfy the statute.
See Nation Ford Chem. Co. v. United States, 166 F.3d 1373,
1377 (Fed. Cir. 1999) (“While § 1677b(c) provides guide-
lines to assist Commerce in this process, this section also
accords Commerce wide discretion in the valuation of fac-
tors of production in the application of those guidelines.”);
Magnesium Corp. of Am. v. United States, 166 F.3d 1364,
1372 (Fed. Cir. 1999) (holding that the “broad statutory
mandate” gave Commerce “broad discretion”); accord Kel-
ler Trucking, Inc. v. United States, 567 F.2d 147, 149 (D.C.
Cir. 1977) (interpreting an adjudicative determination as
being “within the realm of the expertise and discretion of
the [agency]” due to “the imprecise terms of the statute” at
issue).
As with the broad statutory mandate at issue in Nation
Ford and Magnesium Corp., Congress’s use of the term
“substantially dependent” in section 1677–2 gives Com-
merce considerable discretion in determining whether par-
ticular facts meet that standard. Congress’s use of more
general language indicates its understanding that as-
sessing dependence, for purposes of section 1677–2, is a ho-
listic determination. It further shows that Congress
delegated the task of making that determination to Com-
merce, based on the circumstances of each case.
The government urges us to apply the Chevron doctrine
in this case, see generally Chevron U.S.A., Inc. v. Nat. Res.
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ASOCIACIÓN DE EXPORTADORES E INDUSTRIALES v. US 14
Def. Council, Inc., 467 U.S. 837, 844–45 (1984), and to defer
to Commerce’s interpretation of section 1677–2. Because
we regard the term “substantially dependent” as general
but not ambiguous, we believe this case is more properly
viewed as one involving implied delegation of adjudicative
authority to the agency rather than deference to the
agency’s interpretation of an ambiguous statute.6
3
The relevant dictionary definitions of “substantial” are
“[i]mportant, essential, and material; of real worth and im-
portance,” Black’s Law Dictionary 1728 (11th ed. 2019),
and “something of moment: an important or material mat-
ter, thing, or part,” Webster’s Third New International Dic-
tionary of the English Language 2280 (1998 ed.). Thus, the
natural reading of the statutory text is that the demand for
the prior stage product is “substantially dependent” on the
demand for a latter stage product if the demand for the lat-
ter stage product has a real, material, or important effect
on the demand for the prior stage product.
To be sure, the fact that a large percentage of a prior
stage product is processed into a given latter stage product
is strong evidence that the demand for the prior stage prod-
uct substantially depends on the demand for the latter
stage product. The Trade Court may be right that the fact
that about 50 percent of the prior stage product was pro-
cessed into the latter stage product is evidence of substan-
tial dependence in this case, while 8 percent is not. Such a
pure numerical test, however, is not what the statute calls
6 This case also does not involve the situation, sepa-
rately discussed by the Court in Chevron, in which Con-
gress has made “an express delegation of authority to the
agency to elucidate a specific provision of the statute by
regulation.” 467 U.S. at 843–44; see United States v. Mead
Corp., 533 U.S. 218, 226–27 (2001).
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ASOCIACIÓN DE EXPORTADORES E INDUSTRIALES v. US 15
for. The percentage of prior stage product processed into
the latter stage product is just one factor in evaluating
whether the demand for one product is “substantially de-
pendent” on the demand for another. The principal task
under the statute—and one that Congress has assigned to
Commerce by use of the broad term “substantially depend-
ent”—is to determine whether the demand for the latter
stage product has a real, material, or important effect on
the demand for the prior stage product.
Commerce adopted essentially that interpretation of
the statute in its preliminary determination in this case.
Ripe Olives from Spain, 82 Fed. Reg. 56218 (Dep’t of Com-
merce November 28, 2017). In the Nov. 21, 2017, Issues
and Decision Memorandum (“Preliminary Memo”) accom-
panying that determination, Commerce explained that
substantial dependence focuses on “the nature of the raw
product and the market” rather than on “a specific mini-
mum threshold.” Preliminary Memo at 16. As an example,
Commerce cited a past determination in which it found the
demand for fresh shrimp to be substantially dependent on
the demand for frozen shrimp because “one quarter of the
fresh shrimp market would collapse” if frozen shrimp did
not exist. Id. (citing Shrimp from China, 78 Fed. Reg.
50391-01 (Dep’t of Commerce Aug. 19, 2013)).
Following the first remand from the Trade Court, Com-
merce complied with the Trade Court’s construction of sec-
tion 1677–2 but expressed its continuing disagreement
with that construction. Commerce reaffirmed the position
it took in its Preliminary Memo, explaining that “if the de-
mand for table olives were to cease, a sizeable sector of the
raw olives market . . . would be negatively impacted.” J.A.
156. Although it ultimately applied the Trade Court’s in-
terpretation of the statute, Commerce maintained that the
term “substantially dependent” does not contemplate a nu-
merical “minimum threshold of demand.” J.A. 157.
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While we disagree with the Trade Court’s “at least half”
interpretation of section 1677–2, which Commerce applied
under protest, our disagreement does not affect the
outcome of this case. The Trade Court’s interpretation was
more restrictive than Commerce’s more flexible
interpretation, which we consider to be correct. Commerce
found that the demand for raw olives was substantially
dependent on the demand for table olives under both
interpretations of the statute. Commerce’s findings
therefore satisfy section 1677–2(1).
III
Aside from its statutory interpretation arguments,
Asemesa raises three separate challenges to Commerce’s
factual analysis. First, it argues that Commerce miscon-
strued the raw olive market by failing to credit evidence
showing the extent of the use of table varietal olives for ol-
ive oil production and mill varietal olives for table olive pro-
duction. Second, it argues that Commerce committed
various analytical mistakes in calculating the 55.28 per-
cent figure underlying Commerce’s “substantial depend-
ence” finding. Third, it argues that Commerce should have
relied on the varietal-specific data from the AICA, rather
than data from the Government of Spain, which did not in-
clude a varietal-by-varietal breakdown. None of Asemesa’s
factual arguments renders Commerce’s findings “unsup-
ported by substantial evidence” or the product of prejudi-
cial error. Ta Chen Stainless Steel Pipe, Inc. v. United
States, 298 F.3d 1330, 1335 (Fed. Cir. 2002).
A
Asemesa’s first factual argument relates to Com-
merce’s definition of the market for the prior stage product.
Commerce defined the prior stage product in this case as
the “table and dual-use raw olive varietals that are biolog-
ically distinct from other raw olive varietals,” i.e., those va-
rietals the Government of Spain considers fit for table olive
production. J.A. 55. Commerce defined the latter stage
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ASOCIACIÓN DE EXPORTADORES E INDUSTRIALES v. US 17
product as table olives. Id. The main olive varietals that
satisfy Commerce’s total market definition are manzanilla,
gordal, carrasqueña, hojiblanca, and cacereña olives, which
accounted for 95% of the entire table olive production dur-
ing the 2015 to 2016 investigation period. J.A. 56. The
remaining 5% are “other dual-use varietals.”
Commerce’s characterization of the market assumes
that nearly all the pure table olive varietals (manzanilla,
gordal, and carrasqueña) are processed into table olives,
and that effectively all olives from the pure “mill olive” va-
rietals are processed into olive oil. But the record contains
at least anecdotal evidence that some mill olives were pro-
cessed into table olives and that some olives grown for sale
as table olives were used to make olive oil. J.A. 11721–22,
11241.
Asemesa’s evidence does not “repudiate” Commerce’s
characterization of the market, as Asemesa argues. Ase-
mesa Br. 47. The fact that some olives from the mill vari-
etals were processed for table use is not inconsistent with
Commerce’s characterization. Without evidence about how
much cross-use existed between pure table and pure mill
varietals, it was not unreasonable for Commerce to assume
that such cross-use was negligible. Similarly, although the
Spanish government’s data showed that some olives grown
for processing into oil were ultimately processed for table
use and vice versa, Commerce reasonably assumed that
such cross use was attributable to dual-use varietals. It is
plausible that olives from dual-use varietals cultivated to
produce mill olives could be repurposed into table olives,
but that those olives from pure mill varietals ordinarily
could not. The fact that the Government of Spain catego-
rizes olive varietals as mill, table, and dual use is itself ev-
idence that the Spanish olive market is divided
accordingly.
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ASOCIACIÓN DE EXPORTADORES E INDUSTRIALES v. US 18
B
Asemesa’s second factual argument relates to Com-
merce’s calculations. Commerce calculated the percentage
of olives from table and dual-use varietals that are pro-
cessed into table olives in what can be characterized as an
exercise in estimation based on limited available data.
Asemesa challenges two aspects of Commerce’s calcu-
lation. First, Asemesa argues that Commerce improperly
counted as table olives those hojiblanca varietal olives that
are grown for mill but are sold as table olives. Second, Ase-
mesa challenges Commerce’s treatment of cacereña and
“other” dual-use varietal olives, arguing that Commerce
should not have excluded those varietals from its analysis,
and in any event that Commerce did not implement that
exclusion correctly. Neither of those challenges warrants
a remand.
1
Asemesa first argues that Commerce incorrectly
counted 71,814 tons of hojiblanca olives as table olives,
even though they were grown for processing into oil. Com-
merce counted them as it did because they were ultimately
processed into table olives. Asemesa’s argument is that the
farmers’ intentions are what matter, not how the olives are
ultimately used. Accordingly, Asemesa argues that Com-
merce should have counted those 71,814 tons as mill olives.
Commerce found the ultimate use to which the olives
were put to be the most probative indicator of demand in
particular segments of the olive industry. Asemesa has not
pointed to any reason to believe that the original intentions
of Spanish olive farmers would provide a better measure of
demand. We therefore conclude that Commerce was not
wrong to treat the relevant inquiry as focusing on what per-
centage of olives from suitable varietals were ultimately
processed into table olives.
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ASOCIACIÓN DE EXPORTADORES E INDUSTRIALES v. US 19
2
Asemesa’s challenge to Commerce’s treatment of ca-
cereña olives is more complicated and requires more expla-
nation. We ultimately conclude that Commerce’s
calculations were flawed, but not in a way that prejudiced
Asemesa.
Commerce’s analysis focused on the percentage of raw
olives from table or dual-use varietals that depend on the
market for table olives. That percentage is equal to the
volume of table olives derived from the relevant varietals
divided by the total volume of olives from those varietals,
which is shown by the expression below:
𝑚𝑚 𝑡𝑡𝑡𝑡𝑡𝑡𝑡𝑡𝑡𝑡 + 𝑔𝑔𝑡𝑡𝑡𝑡𝑡𝑡𝑡𝑡𝑡𝑡 + 𝑞𝑞𝑡𝑡𝑡𝑡𝑡𝑡𝑡𝑡𝑡𝑡 + ℎ𝑡𝑡𝑡𝑡𝑡𝑡𝑡𝑡𝑡𝑡 + 𝑐𝑐𝑡𝑡𝑡𝑡𝑡𝑡𝑡𝑡𝑡𝑡 + 𝑜𝑜𝑡𝑡𝑡𝑡𝑡𝑡𝑡𝑡𝑡𝑡
𝑚𝑚 + 𝑔𝑔 + 𝑞𝑞 + ℎ + 𝑐𝑐 + 𝑜𝑜
The letters m, g, q, h, c, and o in that expression stand for
the volumes of manzanillas, gordales, carrasqueñas (“q”),
hojiblancas, cacereñas (“c”), and “other” dual-use olives, re-
spectively.7 The letters with “table” subscripts represent
the amounts of those varietals that were used as table ol-
ives.
The Spanish government publishes data on the aggre-
gate volume of olives grown for the purpose of producing
table olives. It also publishes data on the aggregate volume
of olives that are ultimately used as table olives across all
varietals. J.A. 11241.8 Using these aggregate values
7 All “volumes” in this case are measured in tons.
Although “ton” is a unit of mass, “volume” is typically used
to describe the amount of an agricultural product, even
though the product may be measured by weight.
8 The total volume of table olives, 𝑇𝑇𝑢𝑢𝑠𝑠𝑡𝑡𝑠𝑠 𝑡𝑡𝑠𝑠 𝑡𝑡𝑡𝑡𝑡𝑡𝑡𝑡𝑡𝑡, is the
sum of two published values: (1) the olives grown for table
and processed into table olives, and (2) the olives grown for
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ASOCIACIÓN DE EXPORTADORES E INDUSTRIALES v. US 20
instead of individual varietal volumes and assuming that
no pure table varietal olives were grown for mill, Com-
merce’s expression can be simplified to:
𝑇𝑇𝑢𝑢𝑠𝑠𝑡𝑡𝑠𝑠 𝑡𝑡𝑠𝑠 𝑡𝑡𝑡𝑡𝑡𝑡𝑡𝑡𝑡𝑡
𝑇𝑇𝑔𝑔𝑔𝑔𝑔𝑔𝑔𝑔𝑔𝑔 𝑓𝑓𝑔𝑔𝑔𝑔 𝑡𝑡𝑡𝑡𝑡𝑡𝑡𝑡𝑡𝑡 + ℎ𝑔𝑔𝑔𝑔𝑔𝑔𝑔𝑔𝑔𝑔 𝑓𝑓𝑔𝑔𝑔𝑔 𝑚𝑚𝑚𝑚𝑡𝑡𝑡𝑡 + 𝑐𝑐𝑔𝑔𝑔𝑔𝑔𝑔𝑔𝑔𝑔𝑔 𝑓𝑓𝑔𝑔𝑔𝑔 𝑚𝑚𝑚𝑚𝑡𝑡𝑡𝑡 + 𝑜𝑜𝑔𝑔𝑔𝑔𝑔𝑔𝑔𝑔𝑔𝑔 𝑓𝑓𝑔𝑔𝑔𝑔 𝑚𝑚𝑚𝑚𝑡𝑡𝑡𝑡
where 𝑇𝑇 represents the total volume across all varietals.
Commerce, however, lacked varietal-by-varietal data
for the volumes of hojiblanca, cacereña and other dual-use
olives grown for mill. Commerce had data on the total pro-
duction volume and acreage of hojiblancas from which it
could estimate the volume of hojiblancas grown for mill,
but it lacked corresponding data for both cacereña and the
“other” category of dual-use varietal olives. Commerce
therefore sought to omit cacereña and other dual-use vari-
etals from its calculation. J.A. 58. Modified by those omis-
sions, Commerce’s revised expression was:
𝑇𝑇′ 𝑢𝑢𝑠𝑠𝑡𝑡𝑠𝑠 𝑡𝑡𝑠𝑠 𝑡𝑡𝑡𝑡𝑡𝑡𝑡𝑡𝑡𝑡
𝑇𝑇𝑔𝑔𝑔𝑔𝑔𝑔𝑔𝑔𝑔𝑔 𝑓𝑓𝑔𝑔𝑔𝑔 𝑡𝑡𝑡𝑡𝑡𝑡𝑡𝑡𝑡𝑡
′ + ℎ𝑔𝑔𝑔𝑔𝑔𝑔𝑔𝑔𝑔𝑔 𝑓𝑓𝑔𝑔𝑔𝑔 𝑚𝑚𝑚𝑚𝑡𝑡𝑡𝑡
where 𝑇𝑇′ denotes the total volume of raw olives from rele-
vant varietals processed as table olives, excluding cacereña
and “other” dual-use varietal olives. Put differently, 𝑇𝑇′ is
the volume of manzanilla, gordal, carrasqueña and ho-
jiblanca olives. Based on various assumptions, Commerce
calculated that the volume of 𝑇𝑇′ processed into table olives
mill but processed into table olives. In 2016, the relevant
harvest year, those numbers were 492,244 and 90,404 tons
respectively. 𝑇𝑇𝑢𝑢𝑠𝑠𝑡𝑡𝑠𝑠 𝑡𝑡𝑠𝑠 𝑡𝑡𝑡𝑡𝑡𝑡𝑡𝑡𝑡𝑡 therefore equals 582,648 tons.
Commerce assumed that effectively all olives grown for
table were from the varietals the Government of Spain con-
siders suitable for table olive production, and that effec-
tively all olives grown for mill but processed into table
olives were from dual-use varietals.
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ASOCIACIÓN DE EXPORTADORES E INDUSTRIALES v. US 21
was 564,058 tons.9 The Spanish government reports that
the total volume of olives grown for table in 2016 was
511,122 tons. J.A. 11241. Lastly, Commerce estimated the
volume of hojiblancas grown for mill to be 509,304 tons
based on other available data regarding the yield rate and
acreage of hojiblancas dedicated to each use.10
9 The Government of Spain reports the total volume
of olives sold as table olives, but that number includes ca-
cereña and other dual-use varietal olives that Commerce
intended to exclude from its analysis. Therefore, Com-
merce had to estimate the volume of cacereña and other
dual-use varietal olives to subtract from the numerator.
The Spanish government’s data reports that the total vol-
ume of dual-use varietal olives grown for mill but used for
table in 2016 was 90,404 tons. J.A. 11241. The AICA data
reports the varietal-by-varietal breakdown of dual-use va-
rietal olives grown for table use, J.A. 11643, which can be
converted to a percentage breakdown of those varietals:
79.44% hojiblanca, 12.41% cacereña, and 8.16% other. By
assuming that the same varietal breakdown applied to
dual-use varietal olives grown for mill but used for table,
Commerce calculated that 18,590 of the 90,404 tons of
dual-use varietal olives grown for mill but used for table
were cacereña or other dual-use varietal olives and that the
remaining 71,814 tons were hojiblancas. Commerce there-
fore found that the volume of 𝑇𝑇′ processed into table olives
is 𝑇𝑇𝑢𝑢𝑠𝑠𝑡𝑡𝑠𝑠 𝑡𝑡𝑠𝑠 𝑡𝑡𝑡𝑡𝑡𝑡𝑡𝑡𝑡𝑡 minus 18,590, or 582,648 minus 18,590,
which equals 564,058 tons.
10 Commerce had data on the total production and to-
tal hectares in cultivation for both table olives and mill ol-
ives. From the data, Commerce calculated industry
average yield rates for both olives grown for table and ol-
ives grown for mill, which it assumed to be representative
of the same yield rates for hojiblancas. For olives grown
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ASOCIACIÓN DE EXPORTADORES E INDUSTRIALES v. US 22
Beginning with the above expression and substituting
values yields the percentage that Commerce found to sat-
isfy the “substantially dependent” requirement of section
1677–2:
564,058
511,122 + 509,304 = 55.28%
Asemesa takes issue with Commerce’s 55.28 percent
figure on two grounds. First, Asemesa argues that Com-
merce did not properly exclude cacereña and “other” dual-
use olives from the numerator of the expression because
the Spanish government’s estimate of the total table olives,
on which Commerce based its numerator, included olives
from those varietals. Commerce did not exclude olives from
those varietals grown for table. Second, Asemesa argues
that Commerce could have and should have included ca-
cereña and “other” dual-use varietal olives in its analysis.
Commerce’s decision not to do so skewed the results in
Commerce’s favor. Asemesa is correct on both issues; how-
ever, neither issue makes a material difference to the out-
come of this case.
for table, Commerce calculated that 511,122 tons divided
by 160,400 hectares equaled 3.19 tons per hectare; and for
olives grown for mill, Commerce calculated that 6,571,428
tons divided by 2,243,700 hectares equaled 2.93 tons per
hectare. J.A. 11892 (relying on the Spanish government’s
data). Dividing the total volume of hojiblancas as reported
in the AICA data by the yield rate for table olives, Com-
merce found that there would have needed to be 91,176
acres of hojiblancas dedicated to table olive production to
achieve that volume. Given that there was a total of
265,000 hectares of hojiblancas in cultivation, the remain-
ing 173,824 hectares were dedicated to mill olive produc-
tion. And at the calculated yield rate of 2.93 tons per
hectare, those acres would yield 509,304 tons of olives.
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ASOCIACIÓN DE EXPORTADORES E INDUSTRIALES v. US 23
Although Commerce removed cacereña and other dual-
use varietal olives grown for mill from its analysis, see su-
pra, note 9, Commerce neglected to remove cacereña and
other dual-use varietal olives grown for table. The Spanish
government’s data on total table olives considers olives to
be “table olives” if they were grown with that intention.
J.A. 10704. The table olive figures Commerce relied on,
represented by 𝑇𝑇 or 𝑇𝑇′ in the above expressions, therefore
include cacereña and other dual-use varietal olives grown
for table. Commerce did not make any adjustment to re-
move cacereña and other dual-use olives grown for table
from the numerator of its expression.
What Commerce should have done, instead, is to use
the Spanish government’s raw data for the numerator and
estimate the additional volume of cacereñas grown for mill
that must be included in the denominator. Doing so would
have been a matter of arithmetic because Commerce had
already assumed that all olives from table olive varietals
are processed into table olives and that different dual-use
varietals are processed into table olives and olive oil at the
same rate. Including cacereña and other dual-use olives in
its analysis would have required no new assumptions or
factfinding and would have captured the entire market as
Commerce defined it. Our analysis uses Commerce’s data
and assumptions and corrects its arithmetic.
Commerce had already calculated the varietal break-
down of dual-use varietal olives. See supra, note 9. It also
had already assumed that dual-use varietal volume is pro-
portionately allocated between table and mill on a varietal-
by-varietal basis. J.A. 59–60. Applying that proportional-
ity assumption to the 509,304 tons of hojiblancas grown for
mill would yield the following expression:
79.44%
509,304 = 20.57%
𝑐𝑐𝑔𝑔𝑔𝑔𝑔𝑔𝑔𝑔𝑔𝑔 𝑓𝑓𝑔𝑔𝑔𝑔 𝑚𝑚𝑚𝑚𝑡𝑡𝑡𝑡 + 𝑜𝑜𝑔𝑔𝑔𝑔𝑔𝑔𝑔𝑔𝑔𝑔 𝑓𝑓𝑔𝑔𝑔𝑔 𝑚𝑚𝑚𝑚𝑡𝑡𝑡𝑡
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ASOCIACIÓN DE EXPORTADORES E INDUSTRIALES v. US 24
That expression can be solved for the volume of cacereña
and other dual-use olives grown for mill, which is 131,877
tons.
Commerce’s expression without the simplifying as-
sumption excluding cacereña and “other” dual-use varietal
olives was:
𝑇𝑇𝑢𝑢𝑠𝑠𝑡𝑡𝑠𝑠 𝑡𝑡𝑠𝑠 𝑡𝑡𝑡𝑡𝑡𝑡𝑡𝑡𝑡𝑡
𝑇𝑇𝑔𝑔𝑔𝑔𝑔𝑔𝑔𝑔𝑔𝑔 𝑓𝑓𝑔𝑔𝑔𝑔 𝑡𝑡𝑡𝑡𝑡𝑡𝑡𝑡𝑡𝑡 + ℎ𝑔𝑔𝑔𝑔𝑔𝑔𝑔𝑔𝑔𝑔 𝑓𝑓𝑔𝑔𝑔𝑔 𝑚𝑚𝑚𝑚𝑡𝑡𝑡𝑡 + 𝑐𝑐𝑔𝑔𝑔𝑔𝑔𝑔𝑔𝑔𝑔𝑔 𝑓𝑓𝑔𝑔𝑔𝑔 𝑚𝑚𝑚𝑚𝑡𝑡𝑡𝑡 + 𝑜𝑜𝑔𝑔𝑔𝑔𝑔𝑔𝑔𝑔𝑔𝑔 𝑓𝑓𝑔𝑔𝑔𝑔 𝑚𝑚𝑚𝑚𝑡𝑡𝑡𝑡
The total volumes of table olives reported by the Govern-
ment of Spain, 𝑇𝑇 in the expression above, already include
cacereña and “other” dual-use varietal olives. Substituting
values and simplifying the above expression yields:
564,058
511,122 + 509,304 + 131,877 = 48.95%
Although Commerce erred in its treatment of cacereña
and “other” dual-use varietal olives, the error did not have
a significant effect on the percentage calculation. Either
way, roughly half of all olives from the relevant varietals
are ultimately processed into table olives. Commerce’s
finding, that such a high percentage indicates that the de-
mand for raw olives substantially depends on the demand
for table olives, remains valid after correcting for this mi-
nor calculation error. Because, contrary to the Trade
Court, we have construed the statute as not requiring “at
least half” of the demand for raw olives to depend on de-
mand for table olives, any error Commerce made by exclud-
ing cacereña and “other” dual-use varietal olives did not
prejudice Asemesa and does not warrant a remand for fur-
ther proceedings. See 5 U.S.C. § 706 (“[D]ue account shall
be taken of the rule of prejudicial error.”); Shinseki v. Sand-
ers, 556 U.S. 396, 406 (2009) (characterizing section 706 of
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ASOCIACIÓN DE EXPORTADORES E INDUSTRIALES v. US 25
the Administrative Procedure Act as an “administrative
law harmless error rule.”) (cleaned up).11
C
Asemesa’s third factual argument is that Commerce
should have relied on the AICA data rather than the Span-
ish government’s data, because only the AICA separated
its findings by varietal. Commerce did rely on the AICA
data for certain purposes, such as to calculate the portion
of the market attributable to different varietals. See supra,
note 9; J.A. 11892. Commerce chose to use the Spanish
government’s data over the AICA data for some applica-
tions because the Spanish government’s analysis focused
on how olives are used—not how olives are grown.
Even if we were to agree that Commerce should have
relied on the AICA data in place of the Spanish govern-
ment’s data, Asemesa has not identified how doing so
would have changed the result. In particular, Asemesa has
not stated what the percentage of raw olives from the rele-
vant varietals that are processed into table olives would
have been if Commerce had credited the AICA data. Com-
merce chose to rely on the Spanish government’s data in-
stead of the AICA data for certain purposes, and that choice
was a reasonable one. This court will not “reweigh” the
evidence when Commerce makes a rational decision re-
garding which set of data to credit. Downhole Pipe &
11 Affirmance in this case does not run afoul of the
rule in Securities & Exchange Commission v. Chenery
Corp., 318 U.S. 80, 94 (1943), because it is clear that the
agency would have reached the same result in this case ab-
sent the calculation errors we have identified. See Mass.
Trs. of E. Gas & Fuel Assocs. v. United States, 377 U.S. 235,
248 (1964); Oracle Am., Inc. v. United States, 975 F.3d
1279, 1290 (Fed. Cir. 2020); In re Watts, 354 F.3d 1362,
1370 (Fed. Cir. 2004).
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ASOCIACIÓN DE EXPORTADORES E INDUSTRIALES v. US 26
Equip., L.P. v. United States, 776 F.3d 1369, 1376 (Fed. Cir.
2019).
* * * * *
Because Commerce’s findings satisfy the statutory re-
quirements of section 1677–2 and are supported by sub-
stantial evidence, we sustain the Trade Court’s decision.
AFFIRMED
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