Daewoo Electronics Co., Ltd. v. US

• Decision Date: 03 April 1989
• Docket Number: Court No. 85-01-00140.
• Citation: 13 CIT 253,712 F. Supp. 931
• Parties: DAEWOO ELECTRONICS COMPANY, LTD., et. al., Plaintiffs, v. The UNITED STATES, Defendant.
• Court: U.S. Court of International Trade

712 F. Supp. 931

13 CIT 253

DAEWOO ELECTRONICS COMPANY, LTD., et. al., Plaintiffs, v. The UNITED STATES, Defendant.

Court No. 85-01-00140.

United States Court of International Trade.

April 3, 1989.

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Oppenheimer Wolff & Donnelly, David A. Gantz, Timothy A. Harr, and Jong-Dae Lee, Washington, D.C., for plaintiffs Daewoo Electronics Co., Ltd. and Daewoo Electronics Corp. of America, Inc.

Arnold & Porter, Thomas B. Eilner, Sukhan Kim, M. Howard Morse and Jeffrey M. Winton, Washington, D.C., for plaintiffs Samsung Electronics, Co., Ltd. and Samsung Electronics America, Inc.

Dow, Lohnes and Albertson, William Silverman, Michael P. House, Ryan Trainer, and Douglas J. Heffner, Washington, D.C., for plaintiffs Gold Star Co., Ltd. and Gold Star Electronics Intern., Inc.

Frederick L. Ikenson, P.C., Frederick L. Ikenson and J. Eric Nissley, Washington, D.C., for plaintiff Zenith Electronics Corp.

Collier, Shannon, Rill & Scott, Patrick B. Fazzone and Paul D. Cullen, Washington, D.C., for plaintiffs Independent Radionic Workers of America, et al.

John R. Bolton, Asst. Atty. Gen., David M. Cohen, Director, Commercial Litigation Branch, Jeanne E. Davidson, Civ. Div., U.S. Dept. of Justice (Robert E. Nielson, of counsel), U.S. Dept. of Commerce, Washington, D.C., for defendant.

MEMORANDUM OPINION AND ORDER

WATSON, Judge:

Plaintiffs in this consolidated action challenge the determinations of the International Trade Administration of the U.S. Department of Commerce (ITA or Commerce) in the final results of the first administrative review with regard to importations of color television receivers (CTRs) from Korea, which were published on December 28, 1984 (49 Fed.Reg. 50420).

The importations of CTRs from Korea are subject to administrative review under Section 751(a) of the Tariff Act of 1930, as amended, (the Act) 19 U.S.C. § 1675(a) as a result of the antidumping order of March 1, 1984 (49 Fed.Reg. 7620).

Plaintiffs Daewoo Electronics Co., Ltd. and Daewoo Electronic Corporation of America, Inc. (collectively "Daewoo"), Gold Star Co., Ltd. and Gold Star Electronics International, Inc. (collectively, "Gold Star"), Samsung Electronics Co., Ltd. and Samsung Electronics America, Inc. (collectively "Samsung") are foreign manufacturers and exporters of CTRs from Korea, and respondents in the administrative proceedings subject to this judicial review.¹

Zenith Electronics Corporation ("Zenith") and the Independent Radionic Workers of America, the International Union of Electronic, Electrical, Technical, Salaried and Machine Workers, AFL-CIO-CLC, the International Brotherhood of Electrical Workers, and the Industrial Union Department AFL-CIO (collectively the "Unions") are the defendant-intervenors, as well as plaintiffs in a consolidated action challenging the final results of this administrative review. Zenith and Unions are domestic interested parties who participated in the proceeding below as petitioners. The Court has jurisdiction over these consolidated actions pursuant to 28 U.S.C. § 1581(c).

BACKGROUND

Within a few days after publication of the antidumping order, plaintiffs Gold Star and Samsung requested Commerce to conduct an expedited review and early determination of dumping duties pursuant to Section 736(c) of the Act, 19 U.S.C. § 1673e(c).²

The requests to conduct a Section 736(c) review was accompanied by the information required under that section in order to determine the foreign market value and the United States price of the entries made between October 19, 1983, the date of the preliminary determination of the ITA when liquidation of the subject merchandise became suspended, and April 25, 1984, the date of the final injury determination of the International Trade Commission (ITC).

Commerce denied parties' request to conduct an expedited review pursuant to Section 736(c) of the Act. Instead, the ITA undertook to conduct its regular Section 751(a) administrative review on an expedited basis. The ITA did not issue its usual Section 751 instructions and questionnaires requesting the appropriate sales information to Gold Star and Samsung, but proceeded to use sales information which had been provided by these parties to accompany their request for a Section 736(c) review. In view of the fact that Daewoo had not applied for a Section 736(c) review and did not provide the sales information which must accompany such requests, the ITA issued a questionnaire with instructions to Daewoo requesting the sales data for the same period.

According to the expedited schedule initially established by the ITA, the final results of this administrative review were due by October 31, 1984. Commerce proceeded to conduct verifications of plaintiffs' data in July, 1984, and published its preliminary results of this administrative review on September 12, 1984.

In response to requests from the parties, the ITA extended its deadline for completion of this review to December 15, 1984. The ITA provided the parties with an opportunity to submit additional information, and announced that it would conduct a second verification. The ITA conducted a second verification of plaintiffs' information in November, 1984. Commerce issued a "revised preliminary results", which were not published in the Federal Register, but consisted of the revised computer printout and a memorandum dated November 28, 1984.

The ITA published the final results of this administrative review on December 28, 1984 (49 Fed.Reg. 50420). The final results of this administrative review established the weighted averaged dumping margins of 12.23, 7.47 and 14.88 percent for plaintiffs Samsung, Gold Star and Daewoo, respectively.

Plaintiffs challenge the final results of this administrative review on grounds which involve the calculation of Foreign Market Value (FMV), the calculation of United States prices, and matters of administrative procedure.

I. PLAINTIFFS' ARGUMENTS WITH REGARD TO FOREIGN MARKET VALUE.

(a) Samsung alleges that the ITA erred in refusing to adjust FMV for bad debt expenses, which plaintiff experienced in the Korean market during this administrative review, in violation of 19 U.S.C. § 1677b(a)(4)(B).

(b) Daewoo alleges that the ITA improperly excluded certain below costs sales from calculation of FMV in violation of 19 U.S.C. § 1677b(b)(2).

(c) Plaintiffs allege that in making a difference-in-merchandise adjustment to FMV for differences in duties incurred on some imported parts of the merchandise, Commerce erred in calculating and deducting the amounts of import duties from home market sales, instead of comparing FMV to the U.S. prices on a duty-included basis.

(d) Daewoo and Samsung allege that in making the adjustments for differences in credit expenses between the U.S. and home market, Commerce erred in using rates of credit based on the best information available, instead of applying the actual rates of credit which were experienced by plaintiffs in the home market.

(e) Samsung alleges that the ITA failed to make appropriate adjustments to FMV for warranty expenses and volume rebates which were substantiated and duly verified.

(f) Daewoo contends that the ITA failed to include the amount of selling commissions incurred in the United States in its calculations of the off-set deductions for indirect selling expenses from FMV.

II. PLAINTIFFS' ARGUMENTS WITH REGARD TO THE UNITED STATES PRICE.

(g) Plaintiffs allege that the ITA erred in determining that the account receivables from their related companies represent deductible selling expenses which were assumed by such related companies on behalf of the U.S. exporters.

(h) Samsung alleges that Commerce erred in treating the legal fees, which were incurred during this review period in connection with the previous antidumping proceeding as selling expenses deductible from the U.S. price.

(i) Plaintiffs claim that the ITA erred in treating their U.S. export-related selling expenses, which were not incurred within the territory of the United States, as deductible from the U.S. price under 19 U.S.C. § 1677a(e)(2).

(j) Plaintiffs allege that the ITA erred in adjusting the exporter's sales price for imputed credit expenses associated with inventory carrying costs which are incurred between the time the merchandise is exported from Korea and the time it is sold by their U.S. subsidiaries to unrelated purchasers in the United States.

III. PLAINTIFFS' ARGUMENTS WITH REGARD TO ADMINISTRATIVE PROCEDURE.

(k) Plaintiffs contend that Section 737(a) of the Act, 19 U.S.C. § 1673f(a) imposes a limitation on the amount of antidumping duties to be assessed as a result of this administrative review, so that they may not exceed the estimated rates of antidumping duties which were established in the preliminary determination of the initial less-than-fair value (LTFV) investigation of the ITA.

(1) Plaintiffs contend that the ITA improperly refused to disclose certain computer printouts containing calculations of the margins for the final results of this administrative review and request the Court to address this issue, notwithstanding their subsequent access to the printouts as a result of bringing this action.

(m) Plaintiffs request the Court to remand the final result of this administrative review to the ITA for correction of certain clerical errors.

IV. ADDITIONAL ARGUMENTS OF PLAINTIFFS ZENITH AND UNIONS.

(n) Zenith and Unions allege that pursuant to 19 U.S.C. § 1677a(d)(1)(C) the ITA was required to add to the U.S. price the amount of taxes which were collected on all sales of the merchandise in the home market and which were rebated or not collected by reason of exportation to the United States, and only to the extent that these taxes were passed-through to the Korean consumers, instead of deducting the full amount of these taxes from FMV.

(o) Zenith and Unions challenge the ITA's practice of applying the weighted average

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