Sichuan Changhong Electric Co. v. U.S., Slip Op. 06-141. Court No. 04-00265.

Citation460 F.Supp.2d 1338
Decision Date14 September 2006
Docket NumberSlip Op. 06-141. Court No. 04-00265.
PartiesSICHUAN CHANGHONG ELECTRIC CO., LTD., Plaintiff, and Philips Electronics North America Corp., Apex Digital Inc., Philips Consumer Electronics Co. of Suzhou Ltd., TCL Corp., Plaintiff-Intervenors, v. UNITED STATES, Defendant, and International Brotherhood Of Electrical Workers, Five Rivers Electronics Innovation, LLC, Konka Group Co., Ltd., Industrial Division of the Communication Workers of America, Prima Technology, Inc. Deft.-Intervenors.
CourtU.S. Court of International Trade

Wiley, Rein & Fielding, LLP, Washington, DC (Charles Owen Verrill, Jr.), for plaintiff.

Hunton & Williams, LLP, Washington, DC (Richard Preston Ferrin and William Silverman), for plaintiff-intervenors Philips Electronics North America Corp. and Philips Consumer Electronics Co. Of Suzhou Ltd.

McDermott, Will & Emery, LLC, Washington, DC (Raymond Paul Paretzky), for plaintiff-intervenor TCL Corp.

O'Melveny & Myers, LLP, Washington, DC (Veronique Lanthier), for plaintiff-intervenor Apex Digital.

Peter D. Keisler, Assistant Attorney General, Civil Division, United States Department of Justice; David M. Cohen, Director, Commercial Litigation Branch, Civil Division, United States Department of Justice; Jeanne E. Davidson, Deputy Director, International Trade Section, Commercial Litigation Branch, Civil Division, United States Department of Justice (Michael David Panzera); United States Department of Commerce, Office of Chief Counsel for Import Administration (Marisa Beth Goldstein), of counsel, for defendant.

Kelley Drye Collier, Shannon PLLC, Washington, DC (Mary Tuck Staley), for defendant-intervenors Five Rivers Electronics Innovation, LLC; International Brotherhood of Electrical Workers; Industrial Division of the Communication Workers of America.

White & Case LLP, Washington, DC (Adams Chi-Peng Lee), for defendant-intervenor Konka Group Co., Ltd. Willkie, Farr & Gallagher, LLP, Washington, DC (Daniel Lewis Porter), for defendant-intervenor Prima Technology, Inc.

OPINION

EATON, Judge.

Before the court is a consolidated action for judgment upon the agency record.1 Plaintiff Sichuan Changhong Electric Co., Ltd., ("Changhong" or "plaintiff"), and defendant-intervenor International Brotherhood of Electrical Workers, ("IBEW" or "defendant-intervenors") et. al., challenge aspects of the United States Department of Commerce's ("Commerce" or "the Department") Final Determination of Sales at Less Than Fair Value and Negative Final Determination of Critical Circumstances: Certain Color Television Receivers From the People's Republic of China. See Certain Color Televisions from the People's Republic of China, 69 Fed.Reg. 20,594 (Apr. 16, 2004) ("Final Determination"), as amended by Notice of Amended Final Determination of Sales at Less Than Fair Value: Certain Color Television Receivers from the People's Republic of China, 69 Fed.Reg. 28,879 (May 19, 2004) ("Amended Final Determination"). The court has jurisdiction pursuant to 28 U.S.C. § 1581(c) (2000) and 19 U.S.C. § 1516a(a)(2)(B)(iii) (2000). For the following reasons, the court sustains the Final Determination in part, and remands it in part.

BACKGROUND

On May 2, 2003, petitioners IBEW, Industrial Division of the Communication Workers of America ("IUE-CWA"), and Five Rivers Electronics Innovation LLC ("Five Rivers LLC"), filed an antidumping duty petition with Commerce alleging that imports of color television receivers ("CTRs") from the People's Republic of China ("PRC") were, or were likely to be sold at less than fair value in the United States. See Pet. for the Imposition of Antidumping Duties (ITA May 2, 2003). On May 29, 2003, Commerce initiated an antidumping investigation. See Notice of Initiation of Antidumping Duty Investigations: Certain Color Television Receivers from Malaysia2 and the People's Republic of China, 68 Fed.Reg. 32,013 (May 29, 2003). The period of investigation ("POI") was October 1, 2002 through March 31, 2003.3 Id.

On June 16, 2003, Commerce issued antidumping questionnaires to multiple Chinese companies and the Chinese Ministry of Commerce. Because of the substantial number of respondents, Commerce thereafter chose to limit its investigation to the four largest ("the mandatory respondents"): Changhong; Konka Group Company, Ltd.; Philips Consumer Electronics Co. of Suzhou Ltd. ("Philips"); TCL Holding Company Ltd.; and Xiamen Overseas Chinese Electronic Co., Ltd. See generally 19 U.S.C. § 1677f-1(c)(2) ("If it is not practicable to make individual weighted average dumping margin determinations ... because of the large number of exporters or producers involved in the investigation or review, the administering authority may determine the weighted average dumping margins for a reasonable number of exporters or producers by limiting its examination to ... exporters and producers accounting for the largest volume of the subject merchandise from the exporting country that can be reasonably examined."). Petitioners thereafter filed their "Critical Circumstances Allegations" with Commerce, alleging that critical circumstances4 existed with respect to imports of CTRs from Malaysia5 and the PRC. See Letter from Mary T. Staley to Lou Apple, et. al. of Oct. 16, 2003.

On November 28, 2003, Commerce published its affirmative preliminary determination. See Notice of Preliminary Determination of Sales at Less Than Fair Value, Postponement of Final Determination, and Affirmative Preliminary Determination of Critical Circumstances: Certain Color Television Receivers from the People's Republic of China, 68 Fed.Reg. 66,800 (ITA Nov. 28, 2003) ("Preliminary Determination"). On April 16, 2004, Commerce published its Final Determination. See Final Determination, 69 Fed.Reg. 20,594. In its Final Determination, Commerce reaffirmed its finding that all of the Chinese respondents had sold merchandise in the United States at less than fair value. Id. Commerce also found, however, that "for purposes of the final determination, critical circumstances do not exist with regard to imports of CTVs from the PRC." See Id. at 20,596.

STANDARD OF REVIEW

When reviewing a final determination in an antidumping or countervailing duty investigation, "[t]he court shall hold unlawful any determination, finding, or conclusion found ... to be unsupported by substantial evidence on the record, or otherwise not in accordance with law...." 19 U.S.C. § 1516a(b)(1)(B)(i). "Substantial evidence is `such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Huaiyin Foreign Trade Corp. (30) v. United States, 322 F.3d 1369, 1374 (Fed.Cir.2003) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)). "Substantial evidence is more than a mere scintilla." Consol. Edison, 305 U.S. at 229, 59 S.Ct. 206. The existence of substantial evidence is determined "by considering the record as a whole, including evidence that supports as well as evidence that `fairly detracts from the substantiality of the evidence.'" Huaiyin, 322 F.3d at 1374 (quoting Atl. Sugar, Ltd. v. United States, 744 F.2d 1556, 1562 (Fed.Cir.1984)).

DISCUSSION
I. Plaintiff Changhong's Challenges
A. Commerce's Selection of Infodriveindia Data to Derive Surrogate Value for Certain Inputs

The first issue presented for review concerns the valuation of 25-inch Curved Picture Tubes ("CPTs"), and television Speakers ("Speakers"). With the exception of these two inputs, Commerce valued respondents' factors of production, using import statistics published in the Monthly Statistics of the Foreign Trade of India ("MSFTI"), and the World Trade Atlas Trade Information System ("World Trade Atlas").6 Although noting that import data from MSFTI was the Department's usual source of surrogate value data, Commerce valued the CPTs and the Speakers using data obtained from Infodriveindia, a fee-based website reporting Indian customs data. Changhong contests Commerce's use of this data.7

a. Relevant Law

In an antidumping investigation, Commerce must determine whether the subject merchandise is being, or is likely to be sold, at less than fair value in the United States by comparing the export price,8 with the normal value ("NV") of the merchandise. See 19 U.S.C. 1677b(a). The NV of subject merchandise is "the price at which the foreign like product is first sold ... for consumption ... in the usual commercial quantities and in the ordinary course of trade ... at the same level of trade as the export price...." See § 1677b (a)(1)(B)(i). It is usually determined by examining sales of the subject merchandise in the exporter's home market, or in a third country. Id.

In cases involving exports from a non-market economy country ("NME"),9 however, where "available information does not permit" the calculation of NV using prices paid for factors of production, 19 U.S.C. § 1677b(c) instructs Commerce to determine normal value "on the basis of the value of the factors of production10 utilized in producing the merchandise ...."11 § 1677b(c)(1). In most investigations involving NMEs, the factors of production are valued using surrogate values from a market economy country. See Shakeproof Assembly Components, Div. Of Ill. Tool Works, Inc. v. United States, 268 F.3d 1376, 1381 (Fed.Cir.2001). The Federal Circuit, however, has recognized that surrogate country values are "at best, an estimate" of "what a non-market economy manufacturer might pay in a market-economy setting." See id. at 1382 (citing Lasko Metal Prods., Inc. v. United States, 43 F.3d 1442, 1445-46 (Fed.Cir.1994)).

Section 1677(b)(c) further requires that the valuation of factors of production "be based on the best available information regarding the values of such factors in a market economy country ...." § 1677(b)(c)(1). The words "best available information" are not statutorily defined. See Allied Pac. Food (Dalian) Cc., Ltd....

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