Zenith Electronics Corp. v. U.S.

• Decision Date: 11 May 1989
• Docket Number: P,Nos. 88-1259,88-1260,AFL-CIO-CL,s. 88-1259
• Citation: 875 F.2d 291
• Parties: ZENITH ELECTRONICS CORPORATION, Independent Radionic Workers, International Brotherhood of Electrical Workers and International Union of Electronic, Electrical, Technical, Salaried and Machine Workers,laintiffs-Appellees, v. The UNITED STATES, Defendant-Appellant, Sanyo Electric Co., Ltd., Victor Company of Japan, Ltd., US JVC Corp., Matsushita Electric Industrial Co., Ltd., Panasonic Co. and Quasar Co. a division of Matsushita Electric Corporation of America, Inc., Panasonic Hawaii, Inc., and Panasonic Sales Co. a division of Matsushita Electric Corporation of Puerto Rico, Inc., General Corporation of Japan, Mitsubishi Electric Corp., Mitsubishi Electric Sales America, Inc., NEC Corp. and NEC Home Electronics (U.S.A.) Inc., Defendants.
• Court: U.S. Court of Appeals — Federal Circuit

Page 291

875 F.2d 291

11 ITRD 1068

ZENITH ELECTRONICS CORPORATION, Independent Radionic

Workers, International Brotherhood of Electrical Workers and International Union of Electronic, Electrical, Technical, Salaried and Machine Workers, AFL-CIO-CLC, Plaintiffs-Appellees, v. The UNITED STATES, Defendant-Appellant,

Sanyo Electric Co., Ltd., Victor Company of Japan, Ltd., US

JVC Corp., Matsushita Electric Industrial Co., Ltd.,

Panasonic Co. and Quasar Co. a division of Matsushita

Electric Corporation of America, Inc., Panasonic Hawaii,

Inc., and Panasonic Sales Co. a division of Matsushita

Electric Corporation of Puerto Rico, Inc., General

Corporation of Japan, Mitsubishi Electric Corp., Mitsubishi

Electric Sales America, Inc., NEC Corp. and NEC Home

Electronics (U.S.A.) Inc., Defendants.

Nos. 88-1259, 88-1260.

United States Court of Appeals, Federal Circuit.

May 11, 1989.

Frederick L. Ikenson of Frederick L. Ikenson, P.C., Washington, D.C., argued, for plaintiffs-appellees. With him on the brief was J. Eric Nissley, Paul D. Cullen and Patrick B. Fazzone, Collier, Shannon, Rill & Scott, Washington, D.C., were on the brief, for plaintiffs-appellees The Independent Radionic Workers, et al.

John D. McInerney, Department of Commerce, Washington, D.C., argued, for defendant-appellant. With him on the brief were Robert H. Brumley, General Counsel Sukhan Kim, Thomas B. Wilner and Jeffrey M. Winton, Arnold & Porter, Washington, D.C., were on the brief, for amicus curiae Samsung Electronics Co., Ltd. & Samsung Electronics America, Inc.

and M. Jean Anderson, Chief Counsel for International Trade, Washington, D.C. Also on the brief were John R. Bolton, Asst. Atty. Gen., David M. Cohen, Director and Velta A. Melnbrences, Dept. of Justice, Washington, D.C.

Before ARCHER, Circuit Judge, SKELTON, Senior Circuit Judge, and MICHEL, Circuit Judge.

MICHEL, Circuit Judge.

ORDER

This appeal is from the judgment of the United States Court of International Trade dated January 14, 1988 (Zenith II ). The United States seeks review of that court's Opinion and Order dated April 24, 1986, Zenith Electric Corp. v. United States, et al., 633 F.Supp. 1382 (Ct. Int'l Trade 1986) (Zenith I ), which reversed the final determination of the International Trade Administration, Department of Commerce (Department), in an administrative review under 19 U.S.C. Sec. 1675(a) (1982 and Supp. II 1984), 50 Fed.Reg. 24,278 (1985), of an antidumping order, T.D. 71-76, Television Receiving Sets, Monochrome and Color, from Japan, 36 Fed.Reg 4597 (Dep't Comm.1971), and remanded the case to the Department for redetermination.

Background

In accordance with the antidumping laws in effect in 1982, after an affirmative determination of antidumping duties, the International Trade Administration (ITA) was required annually to redetermine the amount of the duty, i.e., the margin by which the foreign market value of merchandise subject to the antidumping order exceeds the United States price. 19 U.S.C. Sec. 1675(a) (1982). ^* Various adjustments are made to the U.S. price before the adjusted U.S. price is subtracted from foreign market value. One of these adjustments was disputed in this case:

the amount of any taxes imposed in the country of exportation directly upon the exported merchandise or components thereof, which have been rebated, or which have not been collected, by reason of the exportation of the merchandise to the United States, but only to the extent that such taxes are added to or included in the price of such or similar merchandise when sold in the country of exportation; ....

19 U.S.C. Sec. 1677a(d)(1)(C) (1982) (emphasis added).

Although the Department had admitted in other, earlier determinations that the "addition to section 772(d)(1)(C) of the 'but only to the extent' language, intended that [the Department] measure absorption and limit the addition to the tax passed through," Color Television Receivers from Korea, 49 Fed.Reg 7620, 7624 (Dep't Comm.1984) (final determination of sales at less than fair value), it further stated that because of "informational difficulties," id., "it [was] impossible to do so." Id. Under these circumstances, the Department presumed a full pass-through. Id. See also Color Television Receivers from Taiwan, 49 Fed.Reg 7628, 7632 (Dep't Comm.1984) (final determination of sales at less than fair value).

In this determination, Television Receiving Sets, Monochrome and Color, from Japan, 50 Fed.Reg. 24,278, 24,279 (Dep't Comm.1985) (final admin. review), the Department rejected Zenith's and the three domestic unions' proposed method for measurement of the pass-through. The Department stated that "[a]bsent evidence that clearly demonstrates that a manufacturer's commodity tax cost is not reflected in the home market sales prices, the Department may reasonably conclude that cost and price are directly related." Id. The Department assumed that 100% of the The government now seeks to overturn the April 24, 1986 remand order by the Court of International Trade in Zenith I, requiring the Department to measure tax pass-through to consumers...