Hosiden Corp. v. Advanced Display Mfrs. of America
| Decision Date | 31 May 1996 |
| Docket Number | No. 94-1380,94-1380 |
| Citation | 85 F.3d 1561 |
| Parties | HOSIDEN CORPORATION, Hitachi, Ltd., Matsushita Electric Industrial Corporation, Apple Computer, Inc., International Business Machines Corporation, COMPAQ Computer Corporation, Tandy Corporation, Plaintiffs, and Sharp Corporation, Plaintiff-Appellee, v. ADVANCED DISPLAY MANUFACTURERS OF AMERICA, Defendant-Appellant, and Planar Systems, Inc., Plasmaco, Inc., OIS Optical Imaging Systems, Inc., Cherry Display Products Corporation, Electro-Plasma Inc., Photonics Technology, Inc., and Magnascreen Corporation, Defendants, and Texas Instruments, Incorporated, Defendant, v. The UNITED STATES, Defendant-Appellee. ADVANCED DISPLAY MANUFACTURERS OF AMERICA, Plaintiff-Appellant, and Planar Systems, Inc., Plasmaco, Inc., OIS Optical Imaging Systems, Inc., Cherry Display Products Corporation, Electro-Plasma Inc., Photonics Technology, Inc., and Magnascreen Corporation, Plaintiffs, v. The UNITED STATES, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Federal Circuit |
Paul C. Rosenthal, Collier, Shannon, Rill & Scott, Washington, DC, argued for the plaintiff-appellant.
Paul R. Bardos, Office of the General Counsel, U.S. International Trade Commission, Washington, DC, argued for the United States, defendant-appellee. With him on the brief were Lyn M. Schlitt, General Counsel, and James A. Toupin, Deputy General Counsel.
Christopher P. Johnson, Donovan, Leisure, Newton & Irvine, New York City, argued for Sharp Corporation, plaintiff-appellee. With him on the brief were Peter J. Gartland, David S. Versfelt, and Fusae Nara. Of counsel was Christopher K. Tahbaz.
Before RICH, Circuit Judge, SKELTON, Senior Circuit Judge, and NEWMAN, Circuit Judge.
In this antidumping duty case, the Advanced Display Manufacturers of America (ADMA) appeals the final decision of the United States Court of International Trade 1 relating to imports of high-information content flat panel displays (HIC FPDs). The International Trade Commission (ITC or Commission) had determined that the appropriate procedure for analyzing the injury to the domestic industry was to cumulate the effect of sales at less than fair value (LTFV) of various electronic forms of HIC FPD, based on the Commission's determination that the domestic industry comprised the producers of all forms of HIC FPDs. The Court of International Trade disagreed, and held that the Commission was required to conduct a separate injury analysis for each electronic form of HIC FPD.
We conclude that the Commission acted within its statutory authority in defining the "like product" of the domestic industry as HIC FPD generally, and acted correctly in determining the cumulative effect of sales at LTFV of the various electronic forms of HIC FPD. Thus the Court of International Trade erred in barring the Commission from applying this methodology for its injury determination.
On July 18, 1990 ADMA and its member companies Planar Systems, Inc., Plasmaco, Inc., OIS Optical Imaging Systems, Inc., Cherry Display Products Corporation, Electro-Plasma Inc., Photonics Technology, Inc., and Magnascreen Corporation, filed an antidumping duty petition. The petitioners charged that imports from Japan of HIC FPDs and subassemblies were being sold in the United States at less than fair value, and that these sales materially injured an industry in the United States. The International Trade Administration of the Department of Commerce (ITA or Commerce), and the Commission, each duly instituted an antidumping investigation in accordance with its authority.
The Commission's Preliminary Determination of Injury: The Commission is responsible for determining the domestic industry that is injured by sales at LTFV. 19 U.S.C. §§ 1673b(a)(1), 1673d(b)(1), 1677(4)(A). The Commission used its standard criteria to define the domestic like product for the imported merchandise, including similarities of physical characteristics, end uses, production processes, and channels of distribution. The Commission defined the domestic "like product" as HIC FPDs and subassemblies thereof, and concluded that there was a "reasonable indication" that the domestic industry producing HIC FPDs was injured by imports from Japan that were sold at LTFV. The Commission issued a preliminary affirmative injury determination. High-Information Content Flat Panel Displays and Subassemblies Thereof From Japan, USITC Pub. 2311, Inv. No. 731-TA-469 (Sept. 1990).
Commerce's Determinations of Sales at LTFV: In its preliminary determination Commerce defined the various electronic forms of HIC FPD and subassemblies thereof as a single "class or kind" of merchandise, based on similarities of physical characteristics customer expectations, end uses, and channels of trade. Commerce found that HIC FPDs were being sold in the United States at LTFV. High Information Content Flat Panel Displays and Subassemblies Thereof From Japan, 56 Fed.Reg. 7008 (Feb. 21, 1991).
In its final determination, Commerce found that there were four separate classes or kinds of HIC FPD: active-matrix liquid crystal display, passive-matrix liquid crystal display, gas plasma display, and electroluminescent display. Commerce investigated each of the four kinds separately, and determined that active-matrix and electroluminescent HIC FPDs were being sold in the United States at LTFV. Since no domestic petitioner produced passive-matrix liquid crystal HIC FPDs, Commerce removed this product from the investigation without determining whether it was sold at LTFV. Commerce also removed the gas plasma HIC FPDs from the investigation, finding that the dumping margin was de minimis. Commerce calculated weighted average dumping margins of 7.02% for imports of electroluminescent HIC FPDs and 62.67% for imports of active-matrix HIC FPDs. High Information Content Flat Panel Displays and Display Glass Therefor From Japan, 56 Fed.Reg. 32,376 (July 16, 1991).
The Commission's Final Determination of Injury. On return to the Commission for final injury determination, the Commission again determined that the "like product" of the domestic industry was HIC FPDs, including all the various electronic forms of HIC FPD. The Commission applied the statutory definition of "like product," 19 U.S.C. § 1677(10), as "a product which is like, or in the absence of like, most similar in characteristics and uses with, the article subject to an investigation."
The Commission found that all HIC FPDs have the same general end use, for they all provide a continuous visible display of text, images, and graphics. The Commission found that all HIC FPDs share similar channels of distribution, for they are generally sold to original equipment manufacturers. They are all manufactured in sterile environments where electrical conductors and other components are built onto glass substrates before the liquid crystal, gas, or electroluminescent material is added. Purchasers explained to the Commission that they generally would consider more than one kind of HIC FPD when purchasing the display. The Commission found that prices of all kinds of HIC FPDs overlapped to a "significant degree." Thus the Commission determined that the like product for the active-matrix and electroluminescent displays was all forms of HIC FPDs. The Commission stated: "Although the parties' submissions and the staff's inquiries have built an extensive record in this final investigation, that record indicates to us that one like product is still appropriate." Certain High-Information Content Flat Panel Displays and Display Glass Therefor From Japan, USITC Pub. 2413, Inv. No. 731-TA-469 at 7 (Aug. 1991).
The Commission recognized Commerce's delineation into four kinds of HIC FPD, but explained that the domestic "like product" for injury purposes was not necessarily coextensive with the "class or kind" determination made by Commerce:
Although the Commission must accept Commerce's determination as to which merchandise is within the class or kind of merchandise under investigation, the Commission determines what domestic products are like those in the class defined by Commerce. The Commission may find a domestic like product to be broader than the class or kind of imported merchandise described by Commerce, or it may find two or more like products corresponding to one class or kind.
Id. at 5 (footnote omitted). The statute and precedent support this position. See, e.g., Sony Corp. v. United States, 13 Ct. Int'l Trade 353, 360, 712 F.Supp. 978, 984 (1989) ().
The Commission found that the domestic industry that produces HIC FPDs was materially injured by the cumulative imports at LTFV of active-matrix and electroluminescent displays, the two kinds that were found by Commerce to be sold at LTFV. Antidumping duties were ordered. High Information Content Flat Panel Displays and Display Glass Therefor From Japan, 56 Fed.Reg. 43,741 (Sept. 4, 1991).
The First Appeal to the Court of International Trade. The plaintiff Japanese manufacturers and certain domestic importers brought suit in the Court of International Trade, challenging the antidumping duty orders. They argued, inter alia, that the Commission erred in conducting a combined injury investigation of sales at LTFV of the active-matrix and electroluminescent HIC FPDs. The Court of International Trade agreed, holding that the Commission was required to conduct a separate injury analysis for each of the separate electronic forms of HIC FPD. The Court held that the Commission must separately identify the domestic industry for each form, and must separately assess the injury to that industry caused by each form individually. The court reasoned that to do otherwise would "eviscerate" the holding of Commerce that each electronic form of HIC FPD was a separate "class or kind"...
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