Gold Star Co., Ltd. v. US

Decision Date29 July 1988
Docket NumberCourt No. 86-11-01438,86-12-01636,86-11-01448 and 87-01-00021.
Citation692 F. Supp. 1382,12 CIT 707
PartiesGOLD STAR CO., LTD., et al., Plaintiffs, v. UNITED STATES, Defendant, Zenith Electronics Corporation, Defendant-Intervenor, Independent Radionic Workers of America, et al., Defendants-Intervenors. SAMSUNG ELECTRONICS CO., LTD., et al., Plaintiffs, v. UNITED STATES, et al., Defendants, Zenith Electronics Corporation, Defendant-Intervenor, Independent Radionic Workers of America, et al., Defendants-Intervenors.
CourtU.S. Court of International Trade

Dow, Lohnes & Albertson, Michael P. House, William Planert, William Silverman, Leslie H. Wiensenfelder, Ryan Trainer and Douglas J. Heffner, Washington, D.C., for Gold Star Co., Ltd., plaintiffs.

Arnold & Porter, Thomas B. Wilner, Sukhan Kim, M. Howard Morse, Jeffrey M. Winton, Grant E. Finlayson, Sarah J.C. Reynolds and Evan T. Bloom, Washington, D.C., for Samsung Electronics Co., Ltd., plaintiffs.

John R. Bolton, Asst. Atty. Gen., David M. Cohen, Director, Commercial Litigation Branch, Civil Div., U.S. Dept. of Justice, Elizabeth Seastrum, of counsel: Robert E. Nielsen, Attorney-Advisor, Office of the Chief Counsel for International Trade, U.S. Dept. of Commerce, Washington, D.C., for defendants.

Frederick L. Ikenson, Frederick L. Ikenson, J. Eric Nissley and Larry Hampel, Washington, D.C., for Zenith Electronics Corp., defendant-intervenor.

Collier, Shannon, Rill & Scott, Paul D. Cullen, Laurence J. Lasoff and Mary T. Staley, Washington, D.C., for Independent Radionic Workers of America, et al., defendants-intervenors.

OPINION

TSOUCALAS, Judge.

This consolidated action is before the Court on plaintiffs' (Gold Star Co. Ltd., et al., and Samsung Electronics Co., Ltd., et al.) (hereinafter "Gold Star" and "Samsung" respectively) motion for summary judgment on the administrative record pursuant to Rule 56.1 of the Rules of this Court. Plaintiffs challenge the legality of the Department of Commerce, International Trade Administration's ("ITA" or "Commerce") scope clarification ruling. Public Record Documents 13, 15 (hereinafter "P.R. Doc. ____."). The ruling included separately imported color picture tubes ("CPTs") and printed circuit boards ("PCBs"), when subsequently assembled together, within the scope of the antidumping duty order concerning Color Television Receivers from Korea, 49 Fed.Reg. 18,336 (Dep't Comm. 1984) (antidumping duty order) (hereinafter "CTV Order"). Defendants oppose plaintiffs' motion contending that Commerce based its decision upon substantial evidence in the record and did nothing more than lawfully clarify the scope of the existing CTV Order.

Background

Commerce and the United States International Trade Commission ("ITC"), in separate investigations, determined that color television receivers from Korea were being sold at less than fair value and were materially injuring a United States industry. 49 Fed.Reg. 18,336-37. On June 1, 1984, Samsung submitted a letter to Commerce requesting a binding determination as to the applicability of the CTV Order to the importation of certain television components and subassemblies. P.R. Doc. 1. On January 9, 1986, Commerce directed Customs officials to suspend liquidation of, but not collect cash deposits on, printed circuit boards1 and color picture tubes pending resolution of whether those items were covered by the CTV Order. See P.R. Docs. 13-15. Commerce subsequently notified the interested parties on January 23, 1986 of the suspension of liquidation and afforded the parties an opportunity to respond via comments submitted by February 5, 1986 on any matters they wished considered. See P.R. Doc. 2. Plaintiffs and intervenors filed timely comments.

Commerce determined it had sufficient information and the authority to clarify the CTV Order based on the comments it had received from the interested parties. The comments submitted to Commerce contained the relevant excerpts from and references to documents Commerce allegedly had taken into consideration in making its less than fair value determination, as well as the injury determination phase of the investigation conducted by the ITC.

On October 20, 1986, Commerce informed plaintiff Gold Star that printed circuit boards and color picture tubes when subsequently assembled, whether imported together or separately, were within the scope of the CTV Order. P.R. Doc. 13. A comparable letter dated November 21, 1986 was sent to Samsung. P.R. Doc. 15.

Pursuant to its scope clarification, Commerce, on October 31, 1986, directed all Customs officials to collect cash deposits on printed circuit boards and color picture tubes covered by the clarified CTV Order. P.R. Doc. 14.

Discussion

This Court may review a determination by Commerce as to whether a particular type of merchandise is within the class or kind of merchandise described in an existing antidumping duty order. 19 U.S. C. § 1516a(a)(2)(B)(vi) (Supp. II 1984). Commerce's determination will be sustained if it is supported by substantial evidence in the record and is otherwise in accordance with law. 19 U.S.C. § 1516a(b)(1)(B). "Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938); Matsushita Electric Industrial Co. v. United States, 3 Fed.Cir. (T) 44, 51, 750 F.2d 927, 933 (1984).

In the case at bar, Commerce originally described the merchandise covered under the CTV Order as all "color television receivers, complete or incomplete ... regardless of tariff classification." 49 Fed.Reg. at 18,337; see also P.R. Doc. 1 at 3. The scope clarification letter included within the scope of the CTV Order, color picture tubes and printed circuit boards "entered together or on separate entries" for subsequent assembly into color television receivers. P.R. Docs. 13, 15 (emphasis added). The issue is whether the PCBs and CPTs are of the class or kind of merchandise properly included within the scope of the CTV Order.

The ITA has the authority to clarify and define the scope of an antidumping duty determination. Diversified Products Corp. v. United States, 6 CIT 155, 159, 572 F.Supp. 883, 887 (1983). However, while the ITA may clarify the dumping determination, it does not have the authority to change or modify the original determination. Alsthom Atlantique v. United States, 4 Fed.Cir. (T) 71, 78, 787 F.2d 565, 571 (1986); Kyowa Gas Chemical Industry Co. v. United States, 7 CIT 138, 140, 582 F.Supp. 887, 889 (1984); Royal Business Machines, Inc. v. United States, 1 CIT 80, 86-87, 507 F.Supp. 1007, 1013 (1980), aff'd, 69 CCPA 61, 669 F.2d 692 (1982).

To determine whether Commerce's scope letter is a proper clarification of the CTV Order, the Court must examine each stage of the statutory proceedings:

the final order must express the result of the previous determinations without alterations and neither the Commerce Department, as the administering authority, nor the Customs Service, by exercise of its classification authority, could legally change the results of the less than fair value and injury determinations or modify the facts or legal conclusions on which those determinations depended.

Royal Business Machines, 1 CIT at 86-87, 507 F.Supp. at 1013.

At each stage of the investigatory proceedings, the importations subject to antidumping duties were defined as "color television receivers, complete or incomplete."2 An incomplete receiver was characterized in the ITC investigations as: "a color picture tube CPT and a printed circuit board PCB or ceramic substrates with components assembled thereon...." P.R. Doc. 7 at 5 (citing Color Television Receivers From the Republic of Korea and Taiwan, USITC Pub. 1514, Inv. Nos. 731-TA-134, -135 (Final) at A-2 to A-3 (April 1984) (hereinafter "ITC Final Determination")).

Plaintiffs, however, contend that the class or kind of merchandise subject to the CTV Order does not include separately imported subassemblies and components such as PCBs and CPTs. Gold Star's Brief in Support of Motion for Judgment on the Agency Record (corrected public version) at 50-51 (hereinafter "Gold Star Brief at ___."); Plaintiffs' Samsung Memorandum in Support of Their Motion for Judgment Upon the Administrative Record at 37-38 (hereinafter "Samsung Memorandum at ___."). They argue that a separately imported PCB or CPT is outside the scope of the investigations because neither, by itself, constitutes an incomplete receiver. Gold Star Brief at 52, 54-55; Samsung Memorandum at 50-51.

The Court, however, finds that separately imported PCBs and CPTs which are subsequently assembled into color television receivers are of the class or kind of merchandise intended to be covered by the CTV Order. Ample evidence was developed during the course of the proceedings which supports the conclusion that Commerce contemplated assembly of PCBs and CPTs into CTVs within the United States. The ITC, for example, stated that "incomplete color television receivers ... are imported by U.S. producers and assembled into complete receivers in U.S. production facilities." ITC Final Determination at A-2; see also Samsung Memorandum at 20. Furthermore, the definition of incomplete receivers consisted of CPTs and PCBs "which when assembled are capable of receiving a television signal." ITC Final Determination at 3-4; Color Television Receivers From the Republic of Korea and Taiwan, USITC Pub. 1396, Inv. Nos. 731-TA-134, -135 (Preliminary) at 4 (June 1983) (hereinafter "ITC Preliminary Investigation"); see also Samsung Memorandum at 20; P.R. Doc. 12 at 20-22 (emphasis added). Therefore, the PCBs and CPTs are within the scope of the CTV Order whether imported in assembled form or imported separately and assembled together in the United States.

Plaintiffs cannot avoid the imposition of antidumping duties merely by...

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