Lasko Metal Prods., Inc. v. United States, 43 F.3d 1442 (Fed. Cir. 1994). · Go Syfert
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Lasko Metal Prods., Inc. v. United States, 43 F.3d 1442 (Fed. Cir. 1994). Cases Citing This Book View Copy Cite
Quick Summary

The Department of Commerce may determine the value of factors of production by combining surrogate country values with actual market-based costs paid by a nonmarket economy manufacturer.

When determining the foreign market value of merchandise from a nonmarket economy country, the question arises whether the Department of Commerce must use only surrogate values for all factors of production or may combine surrogate values with actual costs paid by the manufacturer. In an investigation of electric fans from China, the agency used surrogate values for factory overhead but used the actual international market prices paid by manufacturers for certain supplies. Because the statute requires the agency to use the best available information to determine the value of factors of production, and because the statute does not prohibit mixing methodologies, the agency's use of both surrogate and actual costs is a permissible construction of the law.

287 citation events (235 in the last 25 years) across 3 distinct courts.
Strongest positive: Changshan Peer Bearing Co. v. United States, 953 F. Supp. 2d 1354 (Ct. Intl. Trade 2014)
Treatment trajectory · 1995 → 2026 · click a year to view as-of
1995 2010 2026
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Cited for
At page 1446 Determining constructed value using best available information43 citing cases“simply does not say- anywhere - that the factors of production must be ascertained in a single fashion.”3 citing courts quote it
  • Changshan Peer Bearing Co. v. United States, 953 F. Supp. 2d 1354 (Ct. Intl. Trade 2014).published 3 cites
    See Lasko, 43 F.3d at 1443 (“[I]t is Commerce’s duty to determine margins as accurately as possi *1360 ble, and to use the best information available to it in doing so.”).
  • Home Meridian Int'l, Inc. v. United States, 922 F. Supp. 2d 1366 (Ct. Intl. Trade 2013).published 3 cites
    (In this case, the best available information on what the supplies used by the Chinese manufacturers would cost in a market economy country was the price charged for those supplies on the international market.)
  • Zhejiang Native Produce & Animal By-Prods. Imp. & Exp. Corp. v. United States, 27 Ct. Int'l Trade 1827 (Ct. Intl. Trade 2003).published 6 cites
    Except as provided in [19 U.S.C. § 1677b(c)(2) 12 ], the valuation of the factors of production shall be based on the best available information regarding the values of such factors in a market economy country or coun *1833 tries considere…
  • Golden Dragon Precise Copper Tube Grp., Inc. v. United States, 2016 CIT 73 (Ct. Intl. Trade 2016).published
    Cir. 2010), though “the selection of the best available information must be consistent with the overall purpose of the antidumping statute, which is to determine margins as accurately as possible.” Changshan Peer Bearing Co. v. United Stat…
  • Baoding Mantong Fine Chemistry Co. v. United States, 113 F. Supp. 3d 1332 (Ct. Intl. Trade 2015).published
    Yangzhou Bestpak Gifts & Crafts Co., Ltd. v. United States, 716 F.3d 1370, 1379 (Fed.Cir.2013) ’ (“Bestpak ”) (“An overriding purpose of Commerce’s administration of antidumping laws is to calculate dumping margins as accurately as possibl…
  • Zhaoqing Tifo New Fibre Co. v. United States, 60 F. Supp. 3d 1328 (Ct. Intl. Trade 2015).published
    "An overriding purpose of Commerce's administration of antidumping laws is to calculate dumping margins as accurately as possible.” Yangzhou Bestpak Gifts & Crafts Co. v. United States, 716 F.3d 1370, 1379 (Fed.Cir.2013) (citing Rhone Poul…
  • Elkay Mfg. Co. v. United States, 34 F. Supp. 3d 1369 (Ct. Intl. Trade 2014).published
    “determine margins ‘as accurately as *1376 possible”
  • Jinan Yipin Corp. v. United States, 971 F. Supp. 2d 1296 (Ct. Intl. Trade 2014).published
    In exercising its discretion, Commerce is constrained by the purpose of the antidumping statute, which is “to determine antidumping margins, ‘as accurately as possible.’.” See Shakeproof, 268 F.3d at 1382 (quoting Lasko Metal Products, Inc…
  • Stanley Works (Langfang) Fastening Sys. Co. v. United States, 964 F. Supp. 2d 1311 (Ct. Intl. Trade 2013).published
    In exercising its discretion, Commerce is constrained by the purpose of the antidumping statute, which is “to determine antidumping margins ‘as accurately as possible.’ ” See Shakeproof, 268 F.3d at 1382 (quoting Lasko Metal Products, Inc.…
  • Taian Ziyang Food Co. v. United States, 918 F. Supp. 2d 1345 (Ct. Intl. Trade 2013).
    In exercising its discretion, Commerce is constrained by the purpose of the antidumping statute, which is “to determine antidumping margins ‘as accurately as possible.’ ” See Shakeproof, 268 F.3d at 1382 (quoting Lasko Metal Products, Inc.…
Show 33 more citing cases
  • Gold East Paper (Jiangsu) Co. v. United States, 918 F. Supp. 2d 1317 (Ct. Intl. Trade 2013).published
    Shakeproof, 268 F.3d at 1382 , quoting Lasko Metal Products, Inc. v. United States, 43 F.3d 1442, 1446 (Fed.Cir.1994).
  • Home Meridian Int'l, Inc. v. United States, 865 F. Supp. 2d 1311 (Ct. Intl. Trade 2012).published 2 cites
    “sets forth procedures in an effort to determine margins ‘as accurately as possible”
  • Yantai Xinke Steel Structure Co. v. United States, 2012 CIT 95 (Ct. Intl. Trade 2012).published
    “as accurately as possible”
  • Jinan Yipin Corp. v. United States, 800 F. Supp. 2d 1226 (Ct. Intl. Trade 2011).published
    In exercising its discretion, Commerce is constrained by the purpose of the antidumping statute, which is “to determine antidumping margins ‘as accurately as possible.’ ” See Shakeproof 268 F.3d at 1382 (quoting Lasko Metal Products, Inc.…
  • Jinxiang Hejia Co. v. United States, 2011 CIT 112 (Ct. Intl. Trade 2011).published
    Cir. 2001) (quoting Lasko Metal Prods., Inc., 43 F.3d at 1446), and to calculate a surrogate value that is “as representative of the situation in the [nonmarket economy] country as is feasible . . . ,” Nat’l Ford Chem.
  • Taian Ziyang Food Co. v. United States, 783 F. Supp. 2d 1292 (Ct. Intl. Trade 2011).published
    In exercising its discretion, Commerce is constrained by the purpose of the antidumping statute, which is “to determine antidumping margins ‘as accurately as possible.’ ” See Shakeproof, 268 F.3d at 1382 (quoting Lasko Metal Products, Inc.…
  • Jining Yongjia Trade Co. v. United States, 34 Ct. Int'l Trade 1510 (Ct. Intl. Trade 2010).published
    The Court affirmed the use of this “mix and match” methodology, stating that, “[i]n this case, the best available information on what the supplies used by the Chinese manufacturers would cost in a market economy was the price charged for t…
  • Zhengzhou Harmoni Spice Co. v. United States, 617 F. Supp. 2d 1281 (Ct. Intl. Trade 2009).published 2 cites
    (policies adopted by Commerce are reasonable when they enhance accuracy, fairness, and predictability)
  • Allied Pac. Food (Dalian) Co. v. United States, 587 F. Supp. 2d 1330 (Ct. Intl. Trade 2008).published 5 cites
    See Micron Tech., Inc. v. United States, 117 F.3d 1386 , 1394-95 (Fed.Cir.1997); Lasko, 43 F.3d at 1446.
  • Zhejiang Mach. Imp. & Exp. Corp. v. United States, 473 F. Supp. 2d 1365 (Ct. Intl. Trade 2007).published 2 cites
    As Lasko emphasized, Commerce’s overarching duty under the antidumping statute is “to determine margins as accurately as possible, and to use the best information available to it in doing so.” Lasko, 43 F.3d at 1443.
  • Allied Pac. Food (Dalian) Co. v. United States, 435 F. Supp. 2d 1295 (Ct. Intl. Trade 2006).published 2 cites
    As the United States Court of Appeals for the Federal Circuit has explained in Lasko Metal Products, Inc., 43 F.3d at 1446, actual prices paid for inputs on the international market are more accurate and indicative of actual input cost tha…
  • Goldlink Indus. Co. v. United States, 431 F. Supp. 2d 1323 (Ct. Intl. Trade 2006).published 10 cites
    See 19 U.S.C. § 1677b(c); Lasko Metal, 43 F.3d at 1443 (duty to determine margins as accurately as possible).
  • Luoyang Bearing Corp. v. United States, 347 F. Supp. 2d 1326 (Ct. Intl. Trade 2004).published 8 cites
    Upon Agency R. (“Commerce’s Mem.”) at 46 (citing Shakeproof Assembly Components, Div. of Ill. Tool Works, Inc. v. United States (“Shakeproof III”), 268 F.3d 1376, 1378 (Fed.Cir.2001)). 6 Commerce responds to CMC and ZMC’s argument regardin…
  • Crawfish Processors All. v. United States, 343 F. Supp. 2d 1242 (Ct. Intl. Trade 2004).published 3 cites
    The Court of Appeals for the Federal Circuit (“CAFC”) has reasoned that “there is much in the statute [19 U.S.C. § 1677b(c)(l) and (4) ] that supports the notion that it is Commerce’s duty to determine margins as accurately as possible, an…
  • Fuyao Glass Indus. Grp. Co. v. United States, 27 Ct. Int'l Trade 1892 (Ct. Intl. Trade 2003).published 3 cites
    (noting that the statute “simply does not say — anywhere—that the factors of production must be ascertained in a single fashion.)
  • Peer Bearing Co.-Changshan v. United States, 298 F. Supp. 2d 1328 (Ct. Intl. Trade 2003).published 4 cites
    Furthermore, in Lasko, the CAFC recognized that the purpose of the statute “is to prevent dumping, an activity defined in terms of the marketplace.” 43 F.3d at 1446.
  • Hontex Enter., Inc. v. United States, 248 F. Supp. 2d 1323 (Ct. Intl. Trade 2003).published 2 cites
    Pariser, eds. 1978)).) Therefore, because Commerce enjoys considerable discretion in valuing factors of production in NME investigations, Lasko, 43 F.3d at 1446, its use of the wet-to-dry conversion factor submitted by DefendanL-Intervenor…
  • China Nat'l Mach. Imp. & Exp. Corp. v. United States, 264 F. Supp. 2d 1229 (Ct. Intl. Trade 2003).published 5 cites
    Under the antidumping duty statute, “Commerce’s duty [is] to determine margins as accurately as possible, and to use the best information available to it in doing so.” Lasko, 43 F.3d at 1443; Allied-Signal Aerospace Co. v. United States, 9…
  • Luoyang Bearing Factory v. United States, 240 F. Supp. 2d 1268 (Ct. Intl. Trade 2002).published 18 cites
    Contrary to Luoyang’s argument that both Olympia 1999, 23 CIT at 83, 36 F.Supp.2d at 417 , and Olympia 1998, 22 CIT 387 , 7 F.Supp.2d 997 , require Commerce to review PRC trading company import prices and to determine whether that data con…
  • Timken Co. v. United States, 201 F. Supp. 2d 1316 (Ct. Intl. Trade 2002).published 8 cites
    See Def.’s Mem. at 33-39. *1333 First, with respect to Commerce’s decision to value material costs for certain steel inputs by using the prices paid by a PRC trading company to market-economy suppliers, Commerce, relying on Lasko argues th…
  • Shakeproof Assembly Components v. United States, 268 F.3d 1376 (Fed. Cir. 2001).published 4 cites
    Lasko, 43 F.3d at 1446; see also Nation Ford, 166 F.3d at 1378 n. 5 (“The statute does not preclude consideration of pricing or costs beyond the surrogate country if necessary.”).
  • Timken Co. v. United States, 166 F. Supp. 2d 608 (Ct. Intl. Trade 2001).published 2 cites
    Peer Bearing’s Resp. at 8 (quoting Anti-dumping MANUAL 65, emphasis in quotation); accord Timken Co. v. United States, 23 CIT -, -, 59 F.Supp.2d 1371, 1376 (1999) (stating that “‘[t]he statute does not require Commerce to follow any single…
  • Shakeproof Assembly Components Div. of Illinois Tool Works, Inc. v. United States, 102 F. Supp. 2d 486 (Ct. Intl. Trade 2000).published
    The Act sets forth procedures in an effort to determine margins ‘as accurately as possible.’ ” Lasko Metal Products, Inc. v. United States, 43 F.3d 1442, 1446 (Fed.Cir.1994) (quoting Rhone Poulenc, Inc. v. United States, 899 F.2d 1185, 119…
  • Timken Co. v. United States, 59 F. Supp. 2d 1371 (Ct. Intl. Trade 1999).published 17 cites
    Indeed, “[t]he statute does not require Commerce to follow any single approach in evaluating data.” Olympia Indus., Inc. v. United States, 21 CIT-,-, Slip Op. 97-44, at 11, 1997 WL 181529 (Apr. 10, 1997) (citing Lasko, 43 F.3d at 1446).
  • Nation Ford Chem. Co. v. United States, 21 Ct. Int'l Trade 1371 (Ct. Intl. Trade 1997).published
    “The Act simply does not say— anywhere — that the factors of production must be ascertained in a single fashion”
  • Writing Instrument Mfrs. Ass'n v. U.S. Dep't of Com., 21 Ct. Int'l Trade 1185 (Ct. Intl. Trade 1997).published 3 cites
    Cir. (T)_,_, 43 F.3d 1442, 1446 (1994) (citation omitted).
  • Olympia Indus., Inc. v. United States, 21 Ct. Int'l Trade 364 (Ct. Intl. Trade 1997).published
    Cir. (T) _, _, 43 F.3d 1442, 1446 (1994); Proposed Rulemaking, 61 Fed.
  • Carbon Activated Tianjin Co. v. United States, No. 23-2135 (Fed. Cir. May 9, 2025).unpublished
    (noting that § 1677b “simply does not say—anywhere—that the factors of production must be ascertained in a single fashion)
  • Peer Bearing Co. v. United States, 182 F. Supp. 2d 1285 (Ct. Intl. Trade 2001).published
  • Nation Ford Chem. Co. v. United States, 166 F.3d 1373 (Fed. Cir. 1999).published
  • Dorbest Ltd. v. United States, 462 F. Supp. 2d 1262 (Ct. Intl. Trade 2006).published
  • Corus Eng'g Steels Ltd. v. United States, 27 Ct. Int'l Trade 1286 (Ct. Intl. Trade 2003).published
  • Globe Metallurgical, Inc. v. United States, 350 F. Supp. 2d 1148 (Ct. Intl. Trade 2004).published
At page 1443 Commerce duty to determine anti-dumpings margins accurately19 citing cases[I]t is Commerce’s duty to determine margins as accurately as possi *1360 ble, and to use the best information available to it in doing so.5 citing courts put it this way
  • Changshan Peer Bearing Co. v. United States, 953 F. Supp. 2d 1354 (Ct. Intl. Trade 2014).published 3 cites
    ([I]t is Commerce’s duty to determine margins as accurately as possi *1360 ble, and to use the best information available to it in doing so.)
  • Inner Mong. Jianlong Biochemical Co. v. United States, 337 F. Supp. 3d 1329 (Ct. Intl. Trade 2018).published
    Cir. 2001) ; see also Lasko Metal Prods., Inc. v. United States , 43 F.3d 1442 , 1443 (Fed.
  • An Giang Fisheries Imp. & Exp. Jt. Stock Co. v. United States, 317 F. Supp. 3d 1304 (Ct. Intl. Trade 2018).published
    See Shakeproof Assembly Components, Div. of Illinois Tool Works, Inc. v. United States , 268 F.3d 1376 , 1382 (2001) ; see also Lasko Metal Prods., Inc. v. United States , 43 F.3d 1442 , 1443 (Fed.
  • Vinh Hoan Corp. v. United States, 317 F. Supp. 3d 1295 (Ct. Intl. Trade 2018).published
    See Shakeproof Assembly Components, Div. of Illinois Tool Works, Inc. v. United States , 268 F.3d 1376 , 1382 (2001) ; see also Lasko Metal Prods., Inc. v. United States , 43 F.3d 1442 , 1443 (Fed.
  • Zhejiang Mach. Imp. & Exp. Corp. v. United States, 473 F. Supp. 2d 1365 (Ct. Intl. Trade 2007).published 2 cites
    “to determine margins as accurately as possible, and to use the best information available to it in doing so”
  • Goldlink Indus. Co. v. United States, 431 F. Supp. 2d 1323 (Ct. Intl. Trade 2006).published 10 cites
    (duty to determine margins as accurately as possible)
  • Luoyang Bearing Corp. v. United States, 347 F. Supp. 2d 1326 (Ct. Intl. Trade 2004).published 8 cites
    Upon Agency R. (“Commerce’s Mem.”) at 46 (citing Shakeproof Assembly Components, Div. of Ill. Tool Works, Inc. v. United States (“Shakeproof III”), 268 F.3d 1376, 1378 (Fed.Cir.2001)). 6 Commerce responds to CMC and ZMC’s argument regardin…
  • Crawfish Processors All. v. United States, 343 F. Supp. 2d 1242 (Ct. Intl. Trade 2004).published 3 cites
    “there is much in the statute [19 U.S.C. § 1677b(c)(l) and (4) ] that supports the notion that it is Commerce’s duty to determine margins as accurately as possible, and to use the best information available to it in doin…”
  • Peer Bearing Co.-Changshan v. United States, 298 F. Supp. 2d 1328 (Ct. Intl. Trade 2003).published 4 cites
    Furthermore, in Lasko, the CAFC recognized that the purpose of the statute “is to prevent dumping, an activity defined in terms of the marketplace.” 43 F.3d at 1446.
  • China Nat'l Mach. Imp. & Exp. Corp. v. United States, 264 F. Supp. 2d 1229 (Ct. Intl. Trade 2003).published 5 cites
    “Commerce’s duty [is] to determine margins as accurately as possible, and to use the best information available to it in doing so”
Show 9 more citing cases
At page 1445 Determining foreign market value for nonmarket economy goods11 citing cases[I]f [Commerce] cannot determine [NV] pursuant to the general provisions of [19 U.S.C.] § 1677b(a), then [Commerce] must use the [FOP] methodology to estimate [NV] for the merchandise in question” (emphasis in original)2 citing courts put it this way
  • Home Meridian Int'l, Inc. v. United States, 922 F. Supp. 2d 1366 (Ct. Intl. Trade 2013).published 3 cites
    Lasko I, 810 F.Supp. at 317-18 ; see also Lasko II, 43 F.3d at 1446 (“In this case, the best available information on what the supplies used by the Chinese manufacturers would cost in a market economy country was the price charged for thos…
  • Zhejiang Native Produce & Animal By-Prods. Imp. & Exp. Corp. v. United States, 27 Ct. Int'l Trade 1827 (Ct. Intl. Trade 2003).published 6 cites
    “simply put, if the ita cannot determine fmv pursuant to the general provisions of 1677b(a), then the ita must use the factors of production methodology to estimate fmv for the merchandise in question.”
  • Allied Pac. Food (Dalian) Co. v. United States, 435 F. Supp. 2d 1295 (Ct. Intl. Trade 2006).published 2 cites
    As the United States Court of Appeals for the Federal Circuit has explained in Lasko Metal Products, Inc., 43 F.3d at 1446, actual prices paid for inputs on the international market are more accurate and indicative of actual input cost tha…
  • Luoyang Bearing Corp. v. United States, 347 F. Supp. 2d 1326 (Ct. Intl. Trade 2004).published 8 cites
    (affirming Commerce’s valuation of a factor of production by use of surrogate country and actual cost values)
  • Luoyang Bearing Factory v. United States, 240 F. Supp. 2d 1268 (Ct. Intl. Trade 2002).published 18 cites
    Contrary to Luoyang’s argument that both Olympia 1999, 23 CIT at 83, 36 F.Supp.2d at 417 , and Olympia 1998, 22 CIT 387 , 7 F.Supp.2d 997 , require Commerce to review PRC trading company import prices and to determine whether that data con…
  • Timken Co. v. United States, 201 F. Supp. 2d 1316 (Ct. Intl. Trade 2002).published 8 cites
    See Def.’s Mem. at 33-39. *1333 First, with respect to Commerce’s decision to value material costs for certain steel inputs by using the prices paid by a PRC trading company to market-economy suppliers, Commerce, relying on Lasko argues th…
  • Shakeproof Assembly Components v. United States, 268 F.3d 1376 (Fed. Cir. 2001).published 4 cites
    Lasko, 43 F.3d at 1446; see also Nation Ford, 166 F.3d at 1378 n. 5 (“The statute does not preclude consideration of pricing or costs beyond the surrogate country if necessary.”).
  • Timken Co. v. United States, 59 F. Supp. 2d 1371 (Ct. Intl. Trade 1999).published 17 cites
    Indeed, “[t]he statute does not require Commerce to follow any single approach in evaluating data.” Olympia Indus., Inc. v. United States, 21 CIT-,-, Slip Op. 97-44, at 11, 1997 WL 181529 (Apr. 10, 1997) (citing Lasko, 43 F.3d at 1446).
  • Magnesium Corp. of Am. v. United States, 166 F.3d 1364 (Fed. Cir. 1999).published 8 cites
    But the costs approved in Lasko were based on "the amount the Chinese manufacturers [under examination] had actually paid on the international market for the supplies they used." Id. at 1445 (emphasis added).
  • Magnesuim Corp. of Am. v. United States, 20 Ct. Int'l Trade 1092 (Ct. Intl. Trade 1996).published
    Lasko Metal Products, Inc. v. United States, 43 F.3d 1442, 1445-46 (Fed.
Show 1 more citing case
At page 1442 “to determine margins as accurately as possible, and to use the best information available to it in doing so.”3 citing cases17 citing courts quote it
  • Inner Mong. Jianlong Biochemical Co. v. United States, 337 F. Supp. 3d 1329 (Ct. Intl. Trade 2018).published
    ([T]here is much in the statute that supports the notion that it is Commerce's duty to determine margins as accurately as possible, and to use the best information available to it in doing so.)
  • An Giang Fisheries Imp. & Exp. Jt. Stock Co. v. United States, 317 F. Supp. 3d 1304 (Ct. Intl. Trade 2018).published
    ([T]here is much in the statute that supports the notion that it is Commerce's duty to determine margins as accurately as possible, and to use the best information available to it in doing so.)
  • Vinh Hoan Corp. v. United States, 317 F. Supp. 3d 1295 (Ct. Intl. Trade 2018).published
    ([T]here is much in the statute that supports the notion that it is Commerce's duty to determine margins as accurately as possible, and to use the best information available to it in doing so.)
Other citing cases6 with no pin cite or quoted language on record
Retrieving the full opinion text from the archive…
LASKO METAL PRODUCTS, INC.
v.
The UNITED STATES, Durable Electrical Metal Factory, Ltd., Paragon Industries, Holmes Products Corporation and Esteem Industries, Ltd., WUXI Fan Factory, Shell Electric Mfg. (China) Co., Ltd., SMC Electric Mfg. Co., and SMC Marketing Corporation, and Wing Tat Electric Mfg. Co., Ltd., Wing Tat Electric Mfg. (Int'l) Co., Ltd. and China Miles Corporation, Polaray Industrial and Paragon Industries, Inc.
No. 93-1242.
Docket on CourtListener (RECAP)
Court of Appeals for the Federal Circuit.
Dec 29, 1994.
Published opinion
43 F.3d 1442
1994 WL 718653
1994 U.S. App. LEXIS 36561
Lawrence J. Bogard, McKenna & Cuneo, Washington, DC, argued for plaintiff-appellant. With him on the brief was Peter Buck Feller., Jeffrey M. Telep, Atty., Commercial Litigation Branch, Dept, of Justice, Washington, DC, argued for defendant-appellee, the U.S. With him on the brief were Stuart E. Schif-fer, Acting Asst. Atty. Gen. and David M. Cohen, Director; Alicia D. Greenidge, U.S. Dept, of Commerce. Also on the brief were Stephen J. Powell, Chief Counsel for Import Admin, and Berniece A. Browne, Attorney-Advisor, Office of the Chief Counsel for Import Admin., U.S. Dept, of Commerce, of counsel., Arthur J. LaFave, III, Dickstein, Shapiro & Morin, Washington, DC, argued for defendants-appellees, Durable Elec. Metal Factory, Ltd., Paragon Industries, Holmes Products Corp. and Esteem Industries, Ltd. With him on the brief was Douglas N. Jacobson., John H. Korns, Pettit & Martin, of Washington, DC, for defendants-appellees, Shell Elec. Mfg. (China) Co., Ltd., SMC Elec. Mfg. Co., and SMC Marketing Corp., James Taylor, Jr., Stroock & Stroock & Lavan, Washington, DC, for defendants-ap-pellees, Wing Tat Elec. Mfg. Co., Ltd., Wing Tat Elec. Mfg. (Int’l) Co., Ltd., China Miles Corp. and Polaray Industrial Corp.; Pana-giotis C. Bayz and Matthew H. McCarthy, of counsel., William J. Clinton, Wilkie, Farr & Gallagher, Washington, DC, for WUXI Fan Factory.
Michel, Plager, Smith.
Cited by 15 opinions  |  Published
2 passages pin-cited by 4 cases
Citer courts: Court of International Trade (4)
PLAGER, Circuit Judge.

This is a dumping case. The appeal in this case challenges the way in which the Department of Commerce (Commerce) calculates the foreign market value (FMV) in making its determination of a dumping margin when dealing with a nonmarket economy country (NME). The question posed is whether the governing statute requires Commerce to ignore the best evidence on costs that is available to it — costs actually paid by the manufacturer in the NME — and instead use only surrogate numbers when it employs a “factors of production” calculation. Appellant Lasko Metal Products (Lasko) argues that Congress, whether it meant to or not, has required exactly that. The Government and the industry members who would be adversely affected argue that there are more than enough words in the statute to permit Commerce to employ the methodology it uses, either because the statute specifically grants Commerce that flexibility or because the statute is silent on the point and Commerce’s reading is a permissible one.

The statute that Congress has written establishing the policy and procedures governing antidumping and countervailing duties is a detañed and complex one. As we shall explain, we cannot find in the statute any precise prohibition on the use of Commerce’s methodology, and there is much in the statute that supports the notion that it is Commerce’s duty to determine margins as accurately as possible, and to use the best information avaüable to it in doing so. Accordingly, we affirm the judgment of the Court of International Trade in Lasko Metal Products v. United States, 810 F.Supp. 314 (Ct.Int’l Trade 1992), upholding a determination by the Department of Commerce, International Trade Administration (ITA), of the fair value of certain fans imported from China.

BACKGROUND

Lasko is a United States manufacturer of ceiling and oscillating fans. On October 31, 1990, Lasko petitioned the ITA and the United States International Trade Commission (ITC), alleging that certain Chinese manufacturers of electric ceiling and oseülating fans were dumping their merchandise on the United States market, and that the domestic industry was thereby materially injured. In response to Lasko’s petition, the ITC on December 27, 1990, issued a preliminary affirmative injury determination. Certain Electric Fans From the People’s Republic of China, 55 Fed.Reg. 53,203 (USITC 1990).

The ITA for its part undertook an investigation to determine if there were sales at less than fair value. Oscillating Fans and Ceiling Fans from the People’s Republic of China, 55 Fed.Reg. 49,320 (Dep’t Comm. 1990). The ITA sent a questionnaire to numerous Chinese manufacturers. After receiving the responses the ITA issued a preliminary determination of sales at less than fair value. Oscillating Fans and Ceiling Fans From the People’s Republic of China, 56 Fed.Reg. 25,664 (Dep’t Comm.1991). In its preliminary determination, the ITA concluded that China was a NME.[1] The ITA[*1444] therefore calculated pursuant to statute FMV for ceiling and oscillating fans manufactured in China by estimating the value of the factors of production. Because the actual costs of certain factors of production in China were not known, the ITA used the cost of elements of production in a surrogate country (Pakistan), in addition to certain known costs of production, which were the prices the Chinese manufacturers paid for manufacturing supplies on the international market.

After the initial determination, responses were verified, briefs were submitted, hearings were held, and comment was received. Effective October 22, 1991, the ITA entered a final determination that Chinese fans were being sold in the United States at slightly less than fair value. Oscillating Fans and Ceiling Fans From the People’s Republic of China, 56 Fed.Reg. 55,271 (Dep’t Comm. 1991). Since the fans were sold at only slightly less than fair value, the ITA preliminarily found correspondingly low antidump-ing duty margins.

On December 2, 1991, the ITC notified the ITA of its final determination that the dumping of fans materially injured United States industry. Certain Electric Fans From the People’s Republic of China, 56 Fed.Reg. 64,-642 (USITC 1991). The ITA then issued, effective December 9, 1991, Antidumping Duty Orders and Amendments to Final Determinations of Sales at Less than Fair Value: Oscillating Fans and Ceiling Fans From the People’s Republic of China, 56 Fed.Reg. 64,240 (Dep’t Comm.1991).

Thereafter Lasko sued in the Court of International Trade both the ITA and the Chinese manufacturers, claiming that the combination of surrogate costs and actual costs used by the ITA to calculate FMV was illegal under the express terms of the Act,[2] and that, as a result, the antidumping duties imposed on the fans from China were too low. The ITA responded that its methodology was well within the discretion granted to it by the Act. The Court of International Trade decided in favor of the ITA and the Chinese manufacturers. Lasko Metal Products, 810 F.Supp. 314. Lasko appeals that decision to this court.

DISCUSSION

Lasko contends that the Act explicitly sets forth a hierarchy of methodologies through which FMV is to be determined. If the ITA cannot calculate FMV using the primary method, the ITA must resort to the secondary one, and if that is unworkable, recourse is had to the third, and so forth. Lasko contends that the plain language of the Act requires strict segregation of the methodologies for determining FMV.

Appellees are of the view that the Act does not speak to the question presented by this case, and therefore it vests considerable discretion in the ITA. Appellees urge deference to the ITA’s determination under Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), which stated that “if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based upon a permissible construction of the statute.” Id. at 843, 104 S.Ct. at 2782 (footnote omitted).

Lasko’s answer to appellees is that Chevron specifically excludes this case from the rule urged by them:

When a court reviews an agency’s construction of the statute which it administers, it is confronted with two questions. First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.

Id. at 842-43, 104 S.Ct. at 2781-82 (footnote omitted). Lasko argues that the statute[*1445] speaks directly to the question, and the intent of Congress is unmistakable.

The answer to the question posed lies then in the language of the Act. In general, the Act provides that the FMV of imported merchandise is the price at which it is sold in the principal markets of the country from which it is exported (the home market), or if there is no home market, the price at which it is sold to countries other than the United States (third party markets). 19 U.S.C. § 1677b(a)(l) (1988). Under certain circumstances a third method for determining FMV, called “constructed value,” may be employed. 19 U.S.C. § 1677b(a)(2) (1988).

However, if the merchandise under investigation is exported from a NME, a special provision, 19 U.S.C. § 1677b(c) (1988), applies; that provision applies here since the determination that China is a NME is not challenged. Section 1677b(e) states:

(c) Nonmarket economy countries.
(1) In general
If—
(A) the merchandise under investigation is exported from a nonmarket economy country, and
(B) the administering authority finds that available information does not permit the foreign market value of the merchandise to be determined under subsection (a) of this section,
the administering authority shall determine the foreign market value of the merchandise on the basis of the value of the factors of'production utilized in producing the merchandise and to which shall be added an amount for general expenses and profit plus the cost of containers, coverings, and other expenses, as required by subsection (e) of this section. Except as provided in paragraph (2), the valuation of the factors of production shall be based on the best available information regarding the values of such factors in a market economy country or countries considered to be appropriate by the administering authority. (Emphasis supplied.)

Simply put, if the ITA cannot determine FMV pursuant to the general provisions of § 1677b(a), then the ITA must use the factors of production methodology to estimate FMV for the merchandise in question. Paragraph 4 of § 1677b(c) further provides that the ITA “shall utilize, to the extent possible, the prices or costs of factors of production in one or more market economy countries that are at a level of economic development comparable to that of the non-market economy country, and significant producers of comparable merchandise.”

The ITA found that available information did not permit FMV to be determined under subsection (a). Pursuant to § 1677b(c)(l), then, the ITA applied the challenged version of the factors of production methodology to determine FMV. The ITA figured certain factors of production, for example the cost of factory overhead, on the basis of the factor’s cost in a surrogate country, Pakistan. As noted, § 1677b(c)(4) specifically authorizes the ITA to use surrogate countries to estimate the value of the factors of production.

But with regard to other factors of production, for example supplies required for the manufacture of the fans, the ITA took the cost to be the amount the Chinese manufacturers actually paid on the international market for the supplies they used. The issue presented by this case is whether or not the Act permits the ITA to determine the factors of production using both surrogate country values and actual cost values.

Lasko argues that the Act expressly prohibits mixing methodologies for calculating FMV. Lasko insists that the text of ¶ (e)(1) emphasized above requires that if FMV cannot be calculated according to one of the “normal” methods set forth in § 1677b(a), i.e., on the basis of home market sales prices, third country sales prices, or constructed value, then FMV must be calculated on the basis of surrogate values obtained from a market economy. According to Lasko, the text of the Act is clear: Congress has required ITA to determine FMV in a NME solely on the basis of surrogate factors of production.

On the contrary, t (e)(1) provides that in determining FMV in a NME, the ITA shall take into account the various factors set out[*1446] in § 1677b(e). Subsection (e) relates to the determination of constructed value of imported merchandise for purposes of § 1677b(a), and includes factors such as the cost of materials and labor, ¶ (e)(1)(A); general expenses and profit, ¶ (e)(1)(B); and shipping preparation, ¶ (e)(1)(C). The Act simply does not say — anywhere—that the factors of production must be ascertained in a single fashion. The Act requires the ITA determination to be based on the “best available information regarding the values of such factors in a market economy country or countries considered to be appropriate by the administering authority.” 19 U.S.C. § 1677b(c)(l). In this case, the best available information on what the supplies used by the Chinese manufacturers would cost in a market economy country was the price charged for those supplies on the international market. See Allied-Signal Aerospace Co. v. United States, 996 F.2d 1185, 1191 (Fed.Cir.1993) (statutory purpose “is to facilitate the determination of dumping margins as accurately as possible ...”).

As the Court of International Trade correctly observed, although Lasko’s “alternative interpretation of the statute requiring that ITA abandon all actual prices once it is forced to resort to surrogate country values might have been possible, ... such an interpretation would conflict with the overall statutory purpose.” Lasko Metal Products, 810 F.Supp. at 317-18. The purpose of the Act is to prevent dumping, an activity defined in terms of the marketplace. The Act sets forth procedures in an effort to determine margins “as accurately as possible.” Rhone Poulenc, Inc. v. United States, 899 F.2d 1185, 1191 (Fed.Cir.1990). “Where we can determine that a NME producer’s input prices are market determined, accuracy, fairness, and predictability are enhanced by using those prices. Therefore, using surrogate values when market-based values are available would, in fact, be contrary to the intent of the law.” Oscillating Fans and Ceiling Fans from the People’s Republic of China, 56 Fed.Reg. 55271, 55275 (Dep’t Comm.1991) (final determination).

In situations in which a statute does not compel a single understanding, the Supreme Court and this court have held that “our duty is not to weigh the wisdom of, or to resolve any struggle between, competing views of the public interest, but rather to respect legitimate policy choices made by the agency in interpreting and applying the statute.” Suramerica de Aleaciones Laminar das, C.A. v. United States, 966 F.2d 660, 665 (Fed.Cir.1992).[3] The Court of International Trade held that the ITA’s methodology for determining the FMV of the fans from China was reasonable and consistent with the agency’s statutory authority. We see no error in this determination.

AFFIRMED.

1

It is unquestioned that, whatever changes may have occurred over- the last few years, China is not a market economy. Oscillating Fans and Ceiling Fans From the People's Republic of China, [*1444] 56 Fed.Reg. 25,664, 25,667 (Dep’t Comm.1991) (detailing ITA findings' of Chinese producers' costs that were not market-based).

2

Section 773 of the Tariff Act of 1930, as amended by, inter alia, the Omnibus Trade and Competitiveness Act of 1988, Pub.L. No. 100-418, § 1316(a), 102 Stat. 1186, 1189 (1988), codified as amended at 19 U.S.C. § 1677b(c) (1988).

3

Suramerica relied on the Supreme Court’s Chevron analysis. In Suramerica, the issue was whether the agency's official interpretation of its organic legislation was a permissible reading of the statute. The policy underlying the Supreme Court’s grant in Chevron of special deference to agency regulations and similar official agency pronouncements does not extend to every agency action — it would not, for example, extend to ad hoc representations on behalf of the agency, such as litigation arguments. In this case the issue is much like that in Suramerica—an officially mandated agency methodology considered by the agency to be within its statutorily granted discretion.