117 F.3d 1401 (Fed. Cir. 1997), 95-1509, Sigma Corp. v. United States

Docket Nº:95-1509, 96-1036, 95-1510, and 96-1037.
Citation:117 F.3d 1401
Party Name:SIGMA CORPORATION, City Pipe and Foundry, Inc., Long Beach Iron Works, and U.V. International, Plaintiffs-Appellants, and Southern Star, Inc., and Overseas Trade Corporation, Plaintiffs, and Guangdong Metals & Minerals Import & Export Corporation, Plaintiff-Appellant, v. The UNITED STATES, Defendant-Appellee, and U.S. Foundry & Manufacturing Co., A
Case Date:July 07, 1997
Court:United States Courts of Appeals, Court of Appeals for the Federal Circuit
 
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Page 1401

117 F.3d 1401 (Fed. Cir. 1997)

SIGMA CORPORATION, City Pipe and Foundry, Inc., Long Beach

Iron Works, and U.V. International, Plaintiffs-Appellants,

and

Southern Star, Inc., and Overseas Trade Corporation, Plaintiffs,

and

Guangdong Metals & Minerals Import & Export Corporation,

Plaintiff-Appellant,

v.

The UNITED STATES, Defendant-Appellee,

and

U.S. Foundry & Manufacturing Co., Alhambra Foundry Inc.,

Allegheny Foundry Co., Bingham & Taylor Division, Virginia

Industries, Inc., Charlotte Pipe & Foundry Co., Deeter

Foundry, Inc., East Jordan Iron Works, Inc., Lebaron Foundry

Inc, Municipal Castings, Inc., Neenah Foundry Co., Opelika

Foundry Co., Inc., Tyler Pipe Industries, Inc., and Vulcan

Foundry, Inc., Defendants-Appellees,

SIGMA CORPORATION, U.V. International, City Pipe and

Foundry, Inc., and Long Beach Iron Works,

Plaintiffs-Appellants,

and

D & L Supply Co., Plaintiff-Appellant,

and

Southern Star, Inc., and Overseas Trade Corporation, Plaintiffs,

v.

The UNITED STATES, Defendant-Appellee,

and

Alhambra Foundry Inc., Allegheny Foundry Co., Bingham &

Taylor Division, Virginia Industries, Inc., Charlotte Pipe &

Foundry Co., East Jordan Iron Works, Inc., Lebaron Foundry

Inc, Municipal Castings, Inc., Neenah Foundry Co., Opelika

Foundry Co., Inc., Tyler Pipe Industries, Inc., U.S. Foundry

& Manufacturing Co., and Vulcan Foundry, Inc., Defendants-Appellees,

and

Deeter Foundry, Inc., Campbell Foundry Co., and Pinkerton

Foundry Inc., Defendants.

Nos. 95-1509, 96-1036, 95-1510, and 96-1037.

United States Court of Appeals, Federal Circuit

July 7, 1997

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[Copyrighted Material Omitted]

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Christopher M. Curran, White and Case, Washington, DC, argued, for plaintiffs-appellants, Sigma Corporation, et al., in Nos. 95-1509, 96-1036. With him on the brief were Walter J. Spak and Vincent Bowen.

Dennis James, Jr., Cameron & Hornbostel, Washington, DC, argued, for plaintiff-appellant Guangdong Metals & Minerals Import & Export Corporation, in Nos. 95-1509, 96-1036. Of counsel was Michele C. Sherman.

Cynthia B. Schultz, Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, Washington, DC, argued, for defendant-appellee United States, in Nos. 95-1509, 96-1036. With her on the brief Frank W. Hunger, Assistant Attorney General, and David M. Cohen, Director. Of counsel on the brief were Stephen J. Powell, Chief Counsel, Berniece A. Browne, Senior Counsel, and Jeffery C. Lowe, Attorney Adviser, Office of the Chief Counsel for Import Administration, Department of Commerce, Washington, DC. Of counsel was Robert J. Heilferty, Office of the Chief Counsel for Import Administration, Department of Commerce, Washington, DC.

Robin H. Gilbert, Collier, Shannon, Rill & Scott, Washington, DC, argued, for defendants-appellees, U.S. Foundry & Manufacturing Co., et al., in Nos. 95-1509, 96-1036. With her on the brief were Paul C. Rosenthal and Mary T. Staley.

Christopher M. Curran, White and Case, Washington, DC, argued, for plaintiffs-appellants, Sigma Corporation, et al., in Nos. 95-1510, 96-1037. With him on the brief were Walter J. Spak, and Kristina Zissis. Of counsel was Vincent Bowen.

Dennis James, Jr., Cameron & Hornbostel, Washington, DC, argued, for plaintiff-appellant, D & L Supply Co., in Nos. 95-1510, 96-1037. Of counsel was Michele C. Sherman.

Cynthia B. Schultz, Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, Washington, DC, argued, for defendant-appellee United States, in Nos.

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95-1510, 96-1037. With her on the brief Frank W. Hunger, Assistant Attorney General, and David M. Cohen, Director. Of counsel on the brief were Stephen J. Powell, Chief Counsel, Berniece A. Browne, Senior Counsel, and Jeffery C. Lowe, Attorney Adviser, Office of the Chief Counsel for Import Administration, Department of Commerce, Washington, DC. Of counsel was Robert J. Heilferty, Office of the Chief Counsel for Import Administration, Department of Commerce, Washington, DC.

Robin H. Gilbert, Collier, Shannon, Rill & Scott, Washington, DC, argued, for defendants-appellees Alhambra Foundry Inc., et. al., in Nos. 95-1510, 96-1037. With her on the brief were Paul C. Rosenthal and Mary T. Staley.

Before NEWMAN, LOURIE, and BRYSON, Circuit Judges.

BRYSON, Circuit Judge.

In these consolidated antidumping duty cases, a Chinese exporter and five U.S. importers of iron castings from the People's Republic of China (PRC) challenge several related orders of the Court of International Trade. Through those orders, the court upheld the Commerce Department's final determinations in a series of administrative reviews of a 1986 antidumping duty order directed at iron construction castings from the PRC. We affirm-in-part, reverse-in-part, and remand.

I

In May 1986, the Department of Commerce issued an antidumping duty order directed to iron construction castings imported into the United States from the PRC. As part of the order, Commerce directed that antidumping duties be collected in an amount "equal to the amount by which the foreign market value of the merchandise exceeds the United States price for all entries of castings from the PRC." 51 Fed.Reg. 17,222, 17,223 (1986). Commerce subsequently conducted a series of administrative reviews of the antidumping duty order for the period between May 1, 1987, and April 30, 1991. The first two annual reviews were consolidated into a single review covering May 1, 1987, through April 30, 1989.

Each of the reviews resulted in a final determination that was appealed to the Court of International Trade. That court directed Commerce to conduct remand proceedings with respect to several issues, and following the remand proceedings the court affirmed the final remand determinations in each case. Appeals were then taken to this court. With respect to the 1990-91 review, we have separately disposed of the appeal taken by the U.S. importers. See D & L Supply Co. v. United States, 113 F.3d 1220 (Fed.Cir.1997). In this case, we consider appeals from Commerce's final remand determinations for the 1987-89 and 1989-90 reviews. Rather than describe in detail the complex procedural background of the various final determinations and the proceedings with respect to each final determination in the Court of International Trade and in the Department of Commerce on remand, we turn directly to the issues raised on appeal. The procedural background will be described, as necessary, in connection with the discussion of each appealed issue.

II

For the 1987-89 review, Commerce concluded that the PRC was a "nonmarket economy country," see 19 U.S.C. § 1677(18) (1988), and it derived the dumping margin by using the "constructed value" method, one of the methods provided for calculating dumping rates for nonmarket economy countries. See 19 U.S.C. § 1677b(c), (e) (1988). Under the version of the antidumping statute that was applicable at the time, "constructed value" was calculated "on the basis of the value of the factors of production utilized in producing the merchandise," to which was added "an amount for general expenses and profit plus the cost of containers, coverings, and other expenses." 19 U.S.C. § 1677b(c)(1) (1988). The statute directed the factors of production to be valued based on "the best available information regarding the values of such factors in a market economy country or countries" that Commerce considered appropriate. Id. The constructed value, or foreign market value, was then compared with the

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United States price. See 19 U.S.C. § 1677a (1988). If the United States price was lower than the foreign market value, an antidumping duty was imposed in the amount by which the foreign market value exceeded the United States price. See 19 U.S.C. § 1673 (1988).

In its preliminary determination for the 1987-89 period, Commerce assigned the Chinese manufacturers separate dumping margins, but in the final determination Commerce assigned the manufacturers a single country-wide rate. Commerce noted that because the PRC is a nonmarket economy, all commercial entities in the country are presumed to export under the control of the state, and that no manufacturer would receive a separate antidumping duty rate unless it could demonstrate that it enjoyed both de jure and de facto independence from the central government. Finding that the evidence was unclear on the issue, Commerce determined that the presumption of state control had not been rebutted and therefore adopted a single country-wide margin.

D & L and other U.S. importers of iron construction castings challenged the final determination for 1987-89 in the Court of International Trade, asserting that Guangdong was independent of the national Chinese corporation, China National Metals and Minerals Import and Export Corporation ("China National"), and that Commerce had therefore erred in applying a country-wide antidumping margin to Guangdong. The Court of International Trade found procedural error in Commerce's change of position on that issue between the preliminary and final determinations, and it remanded for Commerce to provide Guangdong an opportunity to demonstrate its de jure and de facto independence during the two years covered by the 1987-89 review.

On remand, Guangdong submitted a document that included copies of Chinese laws and a certification from China National stating that China National did not exercise control over Guangdong during the pertinent time periods. Commerce, however, determined that the evidence failed to justify giving Guangdong a separate dumping margin. The evidence, Commerce concluded, failed to show de jure...

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