117 F.3d 1386 (Fed. Cir. 1997), 96-1181, Micron Technology, Inc. v. United States

Docket Nº:96-1181.
Citation:117 F.3d 1386
Party Name:MICRON TECHNOLOGY, INC., Plaintiff-Appellant, v. The UNITED STATES, Defendant-Appellee, and Hyundai Electronics Industries Co., Ltd. and Hyundai Electronics America, Inc., Defendants-Appellees, and LG Semicon Co., Ltd., and LG Semicon America, Inc., Defendants-Appellees, and Samsung Electronics Co., Ltd. and Samsung Semiconductor, Inc., Defendants.
Case Date:June 30, 1997
Court:United States Courts of Appeals, Court of Appeals for the Federal Circuit
 
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Page 1386

117 F.3d 1386 (Fed. Cir. 1997)

MICRON TECHNOLOGY, INC., Plaintiff-Appellant,

v.

The UNITED STATES, Defendant-Appellee,

and

Hyundai Electronics Industries Co., Ltd. and Hyundai

Electronics America, Inc., Defendants-Appellees,

and

LG Semicon Co., Ltd., and LG Semicon America, Inc.,

Defendants-Appellees,

and

Samsung Electronics Co., Ltd. and Samsung Semiconductor,

Inc., Defendants.

No. 96-1181.

United States Court of Appeals, Federal Circuit

June 30, 1997

Page 1387

[Copyrighted Material Omitted]

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Gilbert B. Kaplan, Hale and Dorr, Washington, DC, argued, for plaintiff-appellant. Of counsel on the brief were Paul W. Jameson, Cris R. Revaz, and John M. Ryan.

Velta A. Melnbrencis, Assistant Director, Commercial Litigation Branch, Civil Division, Department of Justice, Washington, DC, argued, for defendant-appellee the United States. With her on the brief were Frank W. Hunger, Assistant Attorney General, and David M. Cohen, Director. Of counsel on the brief were Stephen J. Powell, Chief Counsel for Import Administration, U.S. Department of Commerce, Berniece A. Browne, Senior Counsel, and Patrick V. Gallagher, Attorney-Advisor.

Lawrence R. Walters, Graham & James, L.L.P., Washington, DC, argued, for defendants-appellees Hyundai Electronics Industries Co., Ltd., and Hyundai Electronics America, Inc. Of counsel was Andrea Fekkes Dynes.

Raymond Paretzky, Kaye, Scholer, Fierman, Hays & Handler, L.L.P., Washington, DC, argued, for defendants-appellees LG Semicon Co., Ltd. and LG Semicon America, Inc. With him on the brief was Michael P. House.

Before PLAGER, RADER, and SCHALL, Circuit Judges.

SCHALL, Circuit Judge.

This is an antidumping case. Micron Technology, Inc. ("Micron") appeals from the June 12, 1995 decision of the United States Court of International Trade in favor of the United States, Hyundai Electronics Industries Co., Ltd. and Hyundai Electronics America, Inc. (collectively "Hyundai"), and LG Semicon Co., Ltd. and LG Semicon America, Inc. (collectively "LG Semicon") in Micron Technology, Inc. v. United States, 893 F.Supp. 21 (Ct. Int'l Trade 1995). The court's decision affirmed aspects of the final determination of the United States Department of Commerce, International Trade Administration ("Commerce" or "ITA"), as issued and amended, that Korean dynamic random access memory semiconductors ("DRAMs") of one megabit and above were being sold in the United States at less than fair value ("LTFV"). Final Determination of Sales at Less than Fair Value, 58 Fed.Reg. 15,467 (Mar. 23, 1993) ("Final LTFV Determination"); Antidumping Duty Order and Amended Final Determination, 58 Fed.Reg. 27,520 (May 10, 1993) ("Amended Final LTFV Determination"). The determination resulted in the imposition of an antidumping duty order with respect to Hyundai and LG Semicon. Micron contends that in the process of calculating the antidumping duty, Commerce failed to verify properly Hyundai Electronics Industries Co., Ltd.'s ("HEI")

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and LG Semicon Co., Ltd.'s ("LGS") costs of production. We affirm.

BACKGROUND

Under the statutory provision governing the imposition of antidumping duties, additional duties are imposed on imported merchandise that is being sold, or that is likely to be sold, in the United States at less than fair value to the detriment of a domestic industry. 19 U.S.C. § 1673 (1988). 1 A duty, otherwise known as the "dumping margin," is imposed that is equal to the "amount by which the foreign market value exceeds the United States price for the merchandise." Id.

Antidumping proceedings normally are commenced when an "interested party" files a petition with Commerce and simultaneously files a copy of the petition with the International Trade Commission ("ITC"). 19 U.S.C. § 1673a(b). In the petition, the interested party must allege the elements necessary for the imposition of an antidumping duty pursuant to 19 U.S.C. § 1673.

On April 22, 1992, Micron filed a petition with Commerce, alleging that Korean DRAMs of one megabit and above were being sold in the United States at less than fair value and were being sold in the home market at less than the cost of production. Micron also alleged that an industry in the United States was being materially injured, or threatened with material injury. See Initiation of Antidumping Duty Investigation: Dynamic Random Access Memory Semiconductors of One Megabit and Above from the Republic of Korea, 57 Fed.Reg. 21,231 (May 19, 1992). In response, Commerce investigated Korean DRAM sales for the period of investigation running from November 1, 1991, through April 30, 1992. 58 Fed.Reg. at 15,467-15,468.

Following an affirmative preliminary injury determination by the ITC, 2 see Dynamic Random Access Memories of One Megabit and Above From the Republic of Korea, 57 Fed.Reg. 27,063 (June 17, 1992), Commerce served questionnaires on HEI and LGS, 3 soliciting financial information pertinent to the sales at less than fair value investigation. 4 The questionnaires covered a broad spectrum of financial information, including cost of production data. After analyzing initial and supplemental questionnaire responses, Commerce made a preliminary affirmative determination of sales at less than fair value. In so doing, it relied on HEI's submitted cost of production information but rejected some of LGS's submitted information in favor of the best information available. Preliminary Determination of Sales at Less Than Fair Value and Postponement of Final Determination: Dynamic Random Access Memory Semiconductors of One Megabit and Above From the Republic of Korea, 57 Fed.Reg. 49,066 (Oct. 29, 1992).

Shortly after the preliminary determination, Commerce personnel traveled to Korea to verify the responses received from the investigated parties. In Korea, Commerce conducted a six-day verification study at HEI's production facility and head office.

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Commerce also spent six days conducting a verification study at LGS's facilities in Korea.

On January 11, 1993, Commerce issued its verification reports, entitled "Verification of Cost of Production: Hyundai Electronics Industries Co., Ltd." and "Verification of Cost of Production and Constructed Value: Goldstar Electron Co., Ltd." On February 2 and 3, 1993, after completing the verification process, Commerce held public hearings to address various verification issues. On March 23, 1993, Commerce, relying on the questionnaire responses submitted by HEI and LGS, published the Final LTFV Determination pursuant to 19 U.S.C. § 1673d(a)(1). In the Final LTFV Determination, Commerce determined that Korean DRAMs of one megabit and above were being sold in the United States at less than fair value. 58 Fed.Reg. at 15,481. Commerce also computed the relevant dumping margins, expressed in percentages, as follows:

Goldstar(LGS) 4.97

HEI 7.19

All others 5 3.19

Id.

Following a final affirmative injury determination by the ITC, Commerce issued the Amended Final LTFV Determination on May 10, 1993. 58 Fed.Reg. at 27,520. 6 In so doing, Commerce corrected certain errors in the Final LTFV Determination and recomputed the dumping margins to be:

Id. at 27,522. These recomputed antidumping duties were assessed on "all unliquidated entries of dynamic [RAM] semiconductors of one megabit and above from the Republic of Korea entered, or withdrawn from warehouse, for consumption on or before October 29, 1992, the date on which the Department published its preliminary determination notice in the Federal Register...." Id. The dumping margins also applied as the cash deposit rates for entries occurring after October 29, 1992.

On June 8, 1993, Micron appealed to the Court of International Trade, challenging various aspects of Commerce's Final Amended LTFV Determination, as issued and amended. 7 Micron, 893 F.Supp. at 26. Hyundai, LG Semicon, and Samsung intervened as defendants. On June 12, 1995, the court issued a decision sustaining Commerce's determination in part and remanding in part with respect to issues not relevant here. Id. at 42-43. Of relevance to this appeal is the court's holding that Commerce applied a reasonable verification standard and that substantial evidence supports Commerce's verification results leading to the Final Amended LTFV Determination. Id. at 42.

In due course, Commerce filed its remand determination. After finding the remand determination to be in compliance with its prior decision, the Court of International Trade entered final judgment. Micron now appeals the Court of International Trade's June 12, 1995 decision. Specifically, it contests the court's determination that the test Commerce employed during verification was reasonable and was a permissible exercise of judgment. It also challenges the court's findings that substantial evidence supports Commerce's reliance on HEI's and LGS's cost of production data.

DISCUSSION

I.

We have exclusive jurisdiction over an appeal from a final decision of the Court of International Trade. 28 U.S.C. § 1295(a)(5) (1994). Before turning to the

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merits, however, we must address a jurisdictional issue raised by Hyundai and LG Semicon. The antidumping law provides for periodic review of antidumping duties. See 19 U.S.C. § 1675(a) (1994). On May 6, 1996, Commerce issued final results of the first administrative review in this case, computing, for the period running from October 29, 1992 through April 30, 1994, a 0.06 percent dumping margin for Hyundai and a zero percent dumping margin for LG Semicon. Dynamic Random Access Memory Semiconductors of One Megabit or [sic] Above from the Republic of Korea; Final Results of Antidumping Duty Administrative Review ("Final Results of the First Administrative Review"), 61...

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