43 F.3d 1442 (Fed. Cir. 1994), 93-1242, Lasko Metal Products, Inc. v. United States

Docket Nº:93-1242.
Citation:43 F.3d 1442
Party Name:LASKO METAL PRODUCTS, INC., Plaintiff-Appellant, v. The UNITED STATES, Durable Electrical Metal Factory, Ltd., Paragon Industries, Holmes Products Corporation and Esteem Industries, Ltd., WUXI Fan Factory, Shell Electric Mfg. (China) Co., Ltd., SMC Electric Mfg. Co., and SMC Marketing Corporation, and Wing Tat Electric Mfg. Co., Ltd., Wing Tat Elec
Case Date:December 29, 1994
Court:United States Courts of Appeals, Court of Appeals for the Federal Circuit
 
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Page 1442

43 F.3d 1442 (Fed. Cir. 1994)

LASKO METAL PRODUCTS, INC., Plaintiff-Appellant,

v.

The UNITED STATES, Durable Electrical Metal Factory, Ltd.,

Paragon Industries, Holmes Products Corporation and Esteem

Industries, Ltd., WUXI Fan Factory, Shell Electric Mfg.

(China) Co., Ltd., SMC Electric Mfg. Co., and SMC Marketing

Corporation,

and

Wing Tat Electric Mfg. Co., Ltd., Wing Tat Electric Mfg.

(Int'l) Co., Ltd. and China Miles Corporation,

Polaray Industrial and Paragon

Industries, Inc., Defendants-Appellees.

No. 93-1242.

United States Court of Appeals, Federal Circuit

December 29, 1994

Lawrence J. Bogard, McKenna & Cuneo, Washington, DC, argued for plaintiff-appellant. With him on the brief was Peter Buck Feller.

Jeffrey M. Telep, Atty., Commercial Litigation Branch, Dept. of Justice, Washington, DC, argued for defendant-appellee, the U.S. With him on the brief were Stuart E. Schiffer, Acting Asst. Atty. Gen. and David M. Cohen, Director; Alicia D. Greenidge, U.S. Dept. of Commerce. Also on the brief were Stephen J. Powell, Chief Counsel for Import Admin. and Berniece A. Browne, Attorney-Advisor, Office of the Chief Counsel for Import Admin., U.S. Dept. of Commerce, of counsel.

Page 1443

Arthur J. LaFave, III, Dickstein, Shapiro & Morin, Washington, DC, argued for defendants-appellees, Durable Elec. Metal Factory, Ltd., Paragon Industries, Holmes Products Corp. and Esteem Industries, Ltd. With him on the brief was Douglas N. Jacobson.

John H. Korns, Pettit & Martin, of Washington, DC, for defendants-appellees, Shell Elec. Mfg. (China) Co., Ltd., SMC Elec. Mfg. Co., and SMC Marketing Corp.

James Taylor, Jr., Stroock & Stroock & Lavan, Washington, DC, for defendants-appellees, Wing Tat Elec. Mfg. Co., Ltd., Wing Tat Elec. Mfg. (Int'l) Co., Ltd., China Miles Corp. and Polaray Industrial Corp.; Panagiotis C. Bayz and Matthew H. McCarthy, of counsel.

William J. Clinton, Wilkie, Farr & Gallagher, Washington, DC, for WUXI Fan Factory.

Before MICHEL, Circuit Judge, SMITH, Senior Circuit Judge, and PLAGER, Circuit Judge.

PLAGER, Circuit Judge.

This is a dumping case. The appeal in this case challenges the way in which the Department of Commerce (Commerce) calculates the foreign market value (FMV) in making its determination of a dumping margin when dealing with a nonmarket economy country (NME). The question posed is whether the governing statute requires Commerce to ignore the best evidence on costs that is available to it--costs actually paid by the manufacturer in the NME--and instead use only surrogate numbers when it employs a "factors of production" calculation. Appellant Lasko Metal Products (Lasko) argues that Congress, whether it meant to or not, has required exactly that. The Government and the industry members who would be adversely affected argue that there are more than enough words in the statute to permit Commerce to employ the methodology it uses, either because the statute specifically grants Commerce that flexibility or because the statute is silent on the point and Commerce's reading is a permissible one.

The statute that Congress has written establishing the policy and procedures governing antidumping and countervailing duties is a detailed and complex one. As we shall explain, we cannot find in the statute any precise prohibition on the use of Commerce's methodology, and there is much in the statute that supports the notion that it is Commerce's duty to determine margins as accurately as possible, and to use the best information available to it in doing so. Accordingly, we affirm the judgment of the Court of International Trade in Lasko Metal Products v. United States, 810 F.Supp. 314 (Ct.Int'l Trade 1992), upholding a determination by the Department of Commerce, International Trade Administration (ITA), of the fair value of certain fans imported from China.

BACKGROUND

Lasko is a United States manufacturer of ceiling and oscillating fans. On October 31, 1990, Lasko petitioned the ITA and the United States International Trade Commission (ITC), alleging that certain Chinese manufacturers of electric ceiling and oscillating fans were dumping their merchandise on the United States market, and that the domestic industry was thereby materially injured. In response to Lasko's petition, the ITC on December 27, 1990, issued a preliminary affirmative injury determination...

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