Hosiden Corp. v. US

• Decision Date: 29 December 1992
• Docket Number: Court No. 91-10-00720.
• Citation: 810 F. Supp. 322
• Parties: HOSIDEN CORPORATION, et al., Plaintiffs. v. UNITED STATES, Defendants.
• Court: U.S. Court of International Trade

810 F. Supp. 322

HOSIDEN CORPORATION, et al., Plaintiffs. v. UNITED STATES, Defendants.

Court No. 91-10-00720.

United States Court of International Trade.

December 29, 1992.

COPYRIGHT MATERIAL OMITTED

Adduci, Mastriani, Meeks & Schill, Louis S. Mastriani, Anri Suzuki, and Gregory C. Anthes, Washington, DC, for plaintiff Hosiden Corp.

Graham & James, Lawrence R. Walders and Brian E. McGill, Washington, DC, for plaintiffs Hitachi, Ltd., Hosiden Corp., Matsushita Elec. Indus. Co., Ltd., NEC Corp., Seiko Epson Corp., Sharp Corp., and Toshiba Corp.

Baker & McKenzie, Thomas P. Ondeck and Kevin O'Brien, Washington, DC, for plaintiff Apple Computer, Inc.

O'Melveny & Myers, Kermit W. Almstedt, Peggy A. Clarke, Greta L.H. Lichtenbaum, and Craig L. McKee, Washington, DC, for plaintiff Intern. Business Machines Corp. Vinson & Elkins L.L.P., Theodore W. Kassinger, Charles D. Tetrault, and Rosemary E. Gwynn, Washington, DC, for plaintiff Compaq Computer Corp.

Pennie & Edmonds, Arthur Wineburg and Marcia H. Sundeen, Washington, DC, for plaintiff Tandy Corp.

Stuart M. Gerson, Asst. Atty. Gen., David M. Cohen, Director, Commercial Litigation Branch, Civil Div., U.S. Dept. of Justice, Vanessa P. Sciarra, with Marguerite E. Trossevin, of counsel, Office of Chief Counsel for Import Admin., U.S. Dept. of Commerce, Lyn M. Schlitt, General Counsel, James A. Toupin, Asst. General Counsel, U.S. Intern. Trade Com'n, Paul R. Bardos, Washington, DC, for defendant.

Jones, Day, Reavis & Pogue, John E. Benedict, David G. Schryver, and Thomas F. Cullen, Jr., Washington, DC, for defendant-intervenor Texas Instruments Inc.

MEMORANDUM AND ORDER

GOLDBERG, Judge:

Plaintiffs, Hosiden Corporation, et al., bring this consolidated action challenging the final affirmative antidumping determination by the United States Department of Commerce, International Trade Administration ("Commerce") in High Information Content Flat Panel Displays and Display Glass Therefor From Japan, 56 Fed.Reg. 32,376 (1991), the final affirmative injury determination by the United States International Trade Commission ("Commission") in High Information Content Flat Panel Displays and Subassemblies Thereof From Japan, USITC Pub. 2413, Inv. No. 731-TA-469 (Aug.1991), and the antidumping duty orders entered therefrom.

This matter is before the court pursuant to plaintiffs' motion for review of the administrative determinations upon the agency record under USCIT Rule 56.1. The court has jurisdiction under 28 U.S.C. § 1581(c) (1988). The court remands the Commission's determination. The court reserves decision on its review of the challenged Commerce determinations pending the remand results from the Commission.

BACKGROUND

On July 18, 1990, Advanced Display Manufacturers of America, Inc. ("Advanced Display") and its individual member companies, Planar Systems, Inc., Plasmaco, Inc., OIS Optical Imaging Systems, Inc., The Cherry Corporation, Electro-Plasma, Phototonics Technology, Inc., and Magnascreen Corporation, filed a petition with Commerce and the Commission. The petition alleged that imports of certain high-information content flat panel displays ("HIC FPDs") and subassemblies thereof from Japan were being sold in the United States at less than fair value and that an industry in the United States was materially injured, threatened with material injury, or materially retarded from being established by reason of such imports.

The Commission instituted a preliminary antidumping investigation on July 24, 1990. High-Information Content Flat Panel Displays and Subassemblies Thereof From Japan, 55 Fed.Reg. 30,042 (1990).

Commerce initiated an antidumping duty investigation on August 14, 1990. High-Information Content Flat Panel Displays and Subassemblies Thereof From Japan, 55 Fed.Reg. 33,146 (1990).

On September 4, 1990, the Commission issued a preliminary affirmative determination. The Commission found one like product for the imported merchandise — all types of HIC FPDs and subassemblies thereof. The Commission determined that there was a reasonable indication that the domestic producers of all types of HIC FPDs were materially injured by reason of alleged less than fair value imports of HIC FPDs and subassemblies thereof from Japan. High-Information Content Flat Panel Displays and Subassemblies Thereof From Japan, USITC Pub. 2311, Inv. No. 731-TA-469 (Preliminary) (Sept. 1990).

On February 21, 1991, Commerce issued a preliminary determination that all HIC FPDs and subassemblies thereof from Japan comprised a single class or kind of merchandise, and that the subject merchandise was being, or was likely to be, sold in the United States at less than fair value. High-Information Content Flat Panel Displays and Subassemblies Thereof From Japan, 56 Fed.Reg. 7008 (1991). In addition, Commerce preliminarily revised the scope of determination by limiting the definition of subassemblies to include only processed glass substrates, whether or not integrated with additional components. Id. Finally, Commerce ordered that cash deposits or a bond be required on the subject imports in the amount of the estimated preliminary dumping margins, which ranged from 0 to 4.6 percent ad valorem. Id.

Following Commerce's affirmative preliminary determination, the Commission instituted a final material injury investigation on March 27, 1991. High-Information Content Flat Panel Displays and Subassemblies Thereof From Japan, 56 Fed.Reg. 12,741 (1991) (final antidumping investigation).

Commerce issued a final affirmative determination on July 16, 1991. High Information Content Flat Panel Displays and Display Glass Therefor From Japan, 56 Fed.Reg. 32,376 (1991) (final determination). In its determination, Commerce found that the imported HIC FPDs covered by the petition constituted four separate classes or kinds of merchandise: active-matrix liquid crystal displays ("AMLCD") FPDs; passive-matrix liquid crystal displays ("PMLCD") FPDs; gas plasma FPDs; and electro-luminescent ("EL") FPDs.

After an investigation of each of the four classes of merchandise, Commerce determined that no petitioner produced PMLCD FPDs. High Information Content Flat Panel Displays and Display Glass Therefor From Japan, 56 Fed.Reg. 32,376 (1991). Commerce then evaluated whether petitioners had standing to file a petition with respect to this class of merchandise. Id. In its standing determination, Commerce did not follow the Commission's preliminary finding that there was one like product for the subject imported merchandise, namely all HIC FPDs, but instead reexamined the factors generally considered by the Commission for "like product" determinations. Commerce found four distinct like products: domestic AMLCD FPDs; domestic PMLCD FPDs; domestic gas plasma FPDs; and domestic EL FPDs. Id. Since no petitioner produced the like product for imported PMLCD FPDs — domestic passive-matrix LCD FPDs — Commerce determined that the petitioners were not interested parties and did not have standing with respect to an investigation of PMLCD FPDs. Therefore, Commerce dismissed that part of the petition involving passive-matrix LCD FPDs. Id.

In its investigation of gas plasma FPDs, Commerce determined that such merchandise was not, and was not likely to be sold in the United States at less than fair value, and dismissed the investigation concerning such imported merchandise. High Information Content Flat Panel Displays and Display Glass Therefor From Japan, 56 Fed.Reg. 32,376 (1991).

In its investigation of AMLCD FPDs and EL FPDs, Commerce determined that each was being sold or was likely to be sold in the United States at less than fair value, as provided in section 735(a) of the Tariff Act of 1930, as amended (19 U.S.C. § 1673d(a)). High Information Content Flat Panel Displays and Display Glass Therefor From Japan, 56 Fed.Reg. 32,376 (1991). Commerce determined a weighted average margin of 62.67 percent for all imports of AMLCD FPDs, and 7.02 percent for all imports of EL FPDs. Id.

The majority of the Commission published its final affirmative determination in the Federal Register on September 5, 1991. High-Information Content Flat Panel Displays and Subassemblies Thereof From Japan, 56 Fed.Reg. 43,937 (1991); also published at Certain High-Information Content Flat Panel Displays and Display Glass Therefor From Japan, USITC Pub. 2413, Inv. No. 731-TA-469 (Aug.1991). The Commission broadened Commerce's domestic like product finding and determined that there was one like product for AMLCD FPDs and EL FPDs viewed together, namely all domestic HIC FPDs and the display glass therefor. Id. The Commission then determined that the domestic producers of HIC FPDs and display glass therefor were materially injured by reason of cumulated imports of AMLCD FPDs and EL FPDs from Japan. Id.

On September 4, 1991, Commerce published antidumping duty orders on imports of AMLCD FPDs and EL FPDs and display glass thereof from Japan. High Information Content Flat Panel Displays and Display Glass Therefor from Japan, 56 Fed.Reg. 43,741 (1991).

Thereafter, this action was commenced. Advanced Display challenged several aspects of Commerce's less than fair value determination, while the remaining plaintiffs challenged both Commerce's and the Commission's determinations. In connection with the Commission's injury determination, the remaining plaintiffs argued that the Commission failed to conduct separate injury investigations regarding sales at less than fair value of AMLCD FPDs and EL FPDs individually. These plaintiffs also asserted that the Commission incorrectly broadened its determination of the domestic industry to include producers of all HIC FPDs.

Plaintiffs also contended that the Commission's determination of like product corresponding to the imported articles, and its material injury finding were not supported by substantial evidence. Because the court remands the case to the Commission based upon the Commission's preliminary...