OPINION AND ORDER
Before the court is plaintiff Sichuan Changhong Electric Co., Ltd.’s (“Changhong” or “plaintiff’) motion for judgment upon the agency record pursuant to US-CIT Rule 56.2. By its motion, Changhong contests the final affirmative material injury determination of the United States International Trade Commission (the “Commission” or “ITC”) in the antidumping duty investigation concerning certain color television receivers (“CTVs”) from the People’s Republic of China (“PRC”). 1 See Certain Color Television Receivers From China, USITC Pub. 3695, Inv. No. 731-TA-1034 (Final) (May 2004), List 2, Doc. 426 (“Final Determination”); Certain Col- or Television Receivers From China, 69 Fed.Reg. 31,405 (ITC June 3, 2004). The court has jurisdiction pursuant to 28 U.S.C. § 1581(c) (2000) and 19 U.S.C. § 1516a (a)(2)(B)® (2000). For the reasons that follow, the court remands the Final Determination.
BACKGROUND
On May 2, 2003, the International Brotherhood of Electrical Workers, the In
Following its preliminary determination, the ITC published a schedule for the final phase of its investigation. Certain Color Television Receivers From China and Malaysia, 69 Fed.Reg. 3601 (ITC Jan. 26, 2004) (“Scheduling Notice”). Issued on January 20, 2004, the Scheduling Notice established a timetable for the remainder of the ITC’s investigation: (1) “The prehearing staff report ... will be placed in the nonpublic record on April 1, 2004”; (2) “The Commission will hold a hearing ... on April 15, 2004.... Requests to appear ... should be filed ... on or before April 7, 2004”; (3) “Each party who is an interested party shall submit a prehearing brief to the Commission____[T]he deadline for filing is April 8, 2004”; (4) “The deadline for filing posthearing briefs is April 22, 2004”; (5) “On May 7, 2004, the Commission will make available to parties all information on which they have not had an opportunity to comment”; (6) “Parties may submit final comments on this information on or before May 11, 2004, but such final comments must not contain new factual information and must otherwise comply with section 207.30 of the Commission’s rules.” Id. at 3601-02.
The Commission conducted its investigation according to the Scheduling Notice. Interested parties submitted questionnaire responses and pre-hearing briefs in March and April 2004. On April 15, 2004, the ITC held a day-long hearing where several parties presented testimony. The arguments made at the hearing prompted a reevaluation of the record information documenting the domestic industry’s financial performance. This reevaluation led the Commission to conclude that it lacked the most recent financial data relating to the domestic industry. On April 21, 2004, Commission staff sent e-mail messages to domestic producers of CTVs whose fiscal years ended on March 31, 2003, asking for updated financial data for calendar year 2003. List 2, Docs. 308, 309, 313, 314. On
On May 6, 2004, the Commission placed on the record a memorandum, which contained a one-page digest of the updated financial information provided by the domestic CTV producers. List 2, Doc. 398. In accordance with the dates in the Scheduling Notice, the updated financial data was released to the parties, including Changhong, on May 7, 2004. Changhong and the other Chinese respondents filed their final comments on the updated financial information on May 11, 2004. List 2, Doc. 407. Pursuant to Commission regulations, the parties’ final comments were not to exceed fifteen pages. 19 C.F.R. § 207.30(b) (2004). Changhong submitted ten pages of comments, of which one and one-quarter pages discussed the updated financial information. List 2, Doc. 407 at 6-7. On May 27, 2004, on the basis of the record developed in the investigation, the ITC determined that “an industry in the United States is materially injured by reason of imports of certain color television receivers from China that are sold in the United States at less than fair value.... ” Final Determination at 3.
STANDARD OF REVIEW
When reviewing a final determination in an antidumping or countervailing duty investigation, “[t]he court shall hold unlawful any determination, finding, or conclusion found ... to be unsupported by substantial evidence on the record, or otherwise not in accordance with law....” 19 U.S.C. § 1516a(b)(l)(B)(i). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Huaiyin Foreign Trade Corp. (30) v. United States,
DISCUSSION
A. Changhong’s Due Process Claim
Changhong argues that the ITC deprived it of a right to “participate meaningfully” in the ITC’s investigation. Pl.’s Conf. Revised Br. Supp. Mot. J. Agency R. (“PL’s Supp. Br.”) at 4. Changhong styles this claim as a due process violation, but it does not challenge the constitutionality of either the antidumping statute or the Commission’s regulations, nor does it contend the ITC failed to comply with its regulations. PL’s Revised Conf. Reply Br. (“PL’s Reply”) at 4 (“Changhong has never claimed that the ITC did not comply with its regulations.”).
In its opening brief, Changhong claims that “[b]ecause [it] was given only four days to review and comment on [the updated financial] information, it had no real opportunity to analyze the information, conduct further research, and develop and submit its own information and arguments in response.” PL’s Supp. Br. at 10 (emphasis omitted). In its reply brief, however, Changhong seems to retreat from this position and argues instead that the “issue is not whether [it] should have been accorded more time to comment on the information, but whether its inability to submit
It is well established that “[t]he fundamental requisite of due process of law is the opportunity to be heard.”
Grannis v. Ordean,
Here, the primary basis for Changhong’s due process claim is that it was denied a meaningful opportunity to participate in the administrative proceeding by having only four days to review and comment on the updated financial information and by not being permitted to submit new factual information. PL’s Supp. Br. at 10. This Court has stated that, at a minimum, the ITC must adhere “to the procedures which Congress has set out in the statutes and [the ITC] has implemented in regulations.”
PPG Indus., Inc. v. United States,
The statutory and regulatory provisions relevant to Changhong’s claim are set forth in 19 U.S.C. § 1677m(g) and 19 C.F.R. § 207.30. Subsection 1677m(g) of the antidumping statute, entitled “Public comment on information,” provides:
Information that is submitted on a timely basis to the administering authority or the Commission during the course of a proceeding under this subtitle shall be subject to comment by other parties to the proceeding within such reasonable time as the administering authority or the Commission shall provide. The administering authority and the Commission, before making a final determination under section 1671d, 1673d, 1675, or 1675b of this title shall cease collecting information and shall provide the parties with a final opportunity to comment on the information obtained by the administering authority or the Commission (as the case may be) upon which the parties have not previously had an opportunity to comment. Comments containing new factual information shall be disregarded.
19 U.S.C. § 1677m(g). The regulation that implements this provision expands upon § 1677m(g)’s instruction to afford the
The parties shall have an opportunity to file comments on any information disclosed to them after they have filed their posthearing brief.... Comments shall only concern such information, and shall not exceed 15 pages of textual material.... A comment may address the accuracy, reliability, or probative value of such information by reference to information elsewhere in the record.... Comments containing new factual information shall be disregarded.
19 C.F.R. § 207.30(b). Like the statute it implements, § 207.30 provides that parties will have an opportunity to comment on previously undisclosed information following the filing of their post-hearing briefs. The statute’s requirement that the Commission disregard new factual information is reiterated in the regulation by its statement that the comments themselves may only address the “accuracy, reliability, or probative value” of information on the record by reference to information already present elsewhere in the record.
There is no dispute that the ITC complied with the relevant statute and regulations. Indeed, as noted above, Changhong concedes as much. Pl.’s Reply at 4. The ITC provided the parties, including Changhong, an opportunity to comment on the updated financial information as provided in the Scheduling Notice. Scheduling Notice, 69 Fed.Reg. at 3602 (“On May 7, 2004, the Commission will make available to parties all information on which they have not had an opportunity to comment. Parties may submit final comments on this information on or before May 11, 2004.... ”). Changhong did, in fact, avail itself of the opportunity and submitted comments on May 11, 2004.
In its initial papers, Changhong expends considerable argument on the amount of time afforded it to comment on the updated financial information. PL’s Supp. Br. at 5, 6-12 (“Changhong was given access to this information only four days before the Commission closed the record ... depriving Changhong of any meaningful opportunity to analyze or rebut this information .... ”). Changhong essentially argues that had it had more time to prepare comments on the updated financial information, it potentially could have found holes in the data and rebutted the usefulness of the information more successfully. Rather than point to the specific information with which it would have found fault, however, plaintiff merely asserts that “[w]ith a reasonable amount of time, Changhong could have at least attempted to develop information addressing” the factual issues allegedly raised by the updated financial information. Id. at 16.
This argument, of course, could be made in nearly any investigation. With more time most parties could improve the quality of their comments. Nonetheless, the Commission complied with the statute and its regulations, which provide for an opportunity to comment while bringing an investigation to an orderly end. In addition, the ITC maintained the schedule it had established from the first, and Changhong did, in fact, submit comments on the new data. Finally, there is no evidence that given more time Changhong would have, in fact, provided more meaningful comments.
Nor can Changhong make a claim of prejudice based on its alleged “inability to submit new factual information.... ” PL’s
For the foregoing reasons, the court finds that the four-day period in which Changhong could submit final comments conformed to its long-established schedule and provided an adequate period for the submission of comments, which Changhong took advantage of. In addition, the statutory and regulatory provisions set forth in 19 U.S.C. § 1677m(g) and 19 C.F.R. § 207.30 are a reasonable means to bring an administrative procedure to closure.
B. Changhong’s Causation Claim
Next, Changhong challenges the ITC’s finding that subject imports caused material injury to the domestic industry. 4 Changhong contends that “[t]he Commission failed to consider other factors that affécted the performance of the U.S. industry, especially the impact of non-subject imports, and so failed in its duty to ensure that injury from other factors was not attributed to the subject imports.” Pl.’s Supp. Br. at 16-17. In particular, it asserts that the ITC failed to “assess ... sufficiently ... whether [non-subject imports from Thailand] ... severed the causal connection between the subject imports and injury.” Pl.’s Reply at 12-13.
To make an affirmative material injury determination, the ITC must find both “(1) present material injury and (2) a finding that the material injury is ‘by reason of the subject imports.”
Gerald Metals, Inc. v. United States,
Here, the ITC did take into account non-subject imports in making its volume, price effects and impact determinations under 19 U.S.C. § 1677(7)(B). See, e.g., Conf. Staff Report at E-6-7 & Tbls. E-12, II — 3, II — 4, IV-2, IV-4, IV-5, V-2, V-4, V-5 & V-6. Nonetheless, as discussed infra in section B(4), the court finds remand appropriate, in light of the Federal Circuit’s holdings in Bratsk and Caribbean Ispat, which were issued after the Final Determination was made. A brief description of the findings made by the Commission will illustrate why this remand is appropriate.
(1) Volume
The ITC concluded that under 19 U.S.C. § 1677(7)(C)(i), “the volume and increase in volume of subject imports, both in absolute terms and relative to consumption in the United States, [were] significant.” Final Determination at 22; 19 U.S.C. § 1677(7)(C)(i). In its volume analysis, the ITC found that between 2001 and 2003 the record evidence showed increases in the total quantity of subject imports, 5 U.S. shipments of subject imports 6 and the share of apparent U.S. consumption represented by U.S. shipments of subject imports. 7 Final Determination at 19-20.
(2) Price Effects
Next, with respect to price effects, the ITC concluded that “there has been significant price underselling by the subject imports and that the effect of such imports has been to depress prices for the domestic like product to a significant degree.” Final Determination at 27; 19 U.S.C. § 1677(7)(C)(ii)(I)-(II). In its price effects analysis, the ITC considered underselling and price depression, as required by § 1677(7)(C)(ii)(I)-(II). It found that the subject imports undersold the domestic like product in 26 out of 28 comparisons. Final Determination at 23 (citing Conf. Staff Report, Tbls. V-2, V-4, V-5 & V-6).
In determining the significance of the observed underselling by subject imports, the ITC considered data showing that non-subject imports from Mexico also frequently undersold the domestic like product. The ITC further noted that “subject imports from China also undersold imports from Mexico in 16 of 23 quarterly comparisons.” Id. The non-subject data collected permitted a comparison of quarterly prices of imports from Mexico and Malaysia, which indicated “[pjrices for subject imports were lower than prices for nonsubject imports from any source in 14 of 28 quarterly observations. Thus, the pricing data ... show that subject imports were frequently the lowest-priced products in the market.” Id. (citing Conf. Staff Report, Tbls. V-2, V-4, V-5 & V-6).
The ITC found that U.S. CTV prices declined during the period of investigation and that “the subject imports, frequently the lowest-priced product in the market, were a significant cause of price declines.” Final Determination at 25. Questionnaire responses submitted by CTV purchasers indicated that price was a “very important” factor in their purchasing decisions.
Id.
at 16 (noting 26 of 30 purchasers indicated price as “very important” factor; citing Conf. Staff Report, Tbl. 11-15). In light of the price competition found to exist among CTVs, the ITC sent questionnaires to domestic producers, importers and purchasers, asking them to attribute the cause of U.S. CTV price declines to imports from specific countries. Conf. Staff Report, Tbls. II — 3 & II-4. “On average, producers attributed 73 percent of this cause of price decline to subject imports, importers 50 percent, and purchasers 56 percent.” Final Determination at 25 (citing Conf. Staff
(3) Impact
Finally, with respect to impact, the ITC “concluded] that the subject imports have had a significant adverse impact on the domestic CTV industry.” Final Determination at 33; 19 U.S.C. § 1677(7)(C)(iii). The ITC considered the factors enumerated in the statute. 8 The ITC found the record evidence showed declines in output related indicators. For example, production, capacity utilization and the domestic industry’s share of U.S. apparent consumption declined in the face of overall increases in capacity and apparent U.S. consumption. Final Determination at 28 (citing Conf. Staff Report, Tbl. III-6). 9
The ITC’s findings with respect to the volume and market penetration of the subject imports, adverse price effects of the subject imports and “the causal linkage between the subject imports and the domestic industry’s declines in output, market share, employment, and operating performance” led to the ITC’s conclusion that the “subject imports have had a significant adverse impact on the domestic CTV industry.” Id. at 33.
(4) Consideration of Nom-Subject Imports
The court finds Changhong’s argument that the ITC did not consider record evidence pertaining to non-subject imports from Thailand, to be without merit. While the Final Determination specifically discussed non-subject imports from Mexico, the staff report contains information about Thai, Korean, Malaysian and other non-subject imports.
10
See, e.g.,
Conf. Staff Report, Tbl. IV-2. It is presumed that the ITC considered all of the evidence placed before it, and here, the ITC clearly considered non-subject imports from a number of countries in reaching its causation determination.
Nat’l Ass’n of Mirror Mfrs. v. United States,
It is apparent that the ITC took the necessary steps to ensure that it did not attribute injury caused by non-subject imports to the subject imports. To the extent Federal Circuit precedent requires the ITC to make “a specific causation determination and in that connection to directly address whether non-subject imports would have replaced the subject imports without any beneficial effect on domestic producers,” however, the court finds remand appropriate.
Bratsk,
CONCLUSION
For the foregoing reasons, the court remands the matter to the ITC. Remand results are due on February 7, 2007, comments are due on March 9, 2007, and replies to such comments are due on March 20, 2007.
Notes
. As a manufacturer and exporter of CTVs subject to the ITC’s final determination, Changhong is an "interested party” within the meaning of 19 U.S.C. § 1677(9)(A) (2000) and is thus entitled to challenge the determination.
. The United States Department of Commerce’s ("Commerce”) investigation was initiated for both Malaysia and the PRC. Certain Color Television Receivers From Malaysia and the PRC, 68 Fed.Reg. 32,013 (ITA May 29, 2003). As a result of the investigation, Commerce determined that imports from Malaysia were not sold at LTFV. Certain Color Television Receivers From Malaysia, 69 Fed. Reg. 20,592 (ITA Apr. 16, 2004). The Commission terminated its investigation with respect to CTVs from Malaysia, effective April 16, 2004. Certain Color Television Receivers From Malaysia, 69 Fed.Reg. 22,093 (ITC Apr. 23, 2004). As such, imports from Malaysia are not the subject of this litigation.
. Changhong relies heavily on the PPG Industries case, where the court remanded the matter to Commerce to reopen and supplement the record with a document Commerce stated it had relied upon in making its determination, but which the parties had neither seen nor commented upon prior to the litigation before this Court. PL’s Supp. Br. at 10-11. On remand, the parties were permitted to review and comment on the omitted document. Here, it is undisputed that the updated financial information relied upon by the ITC was placed on the record and was the subject of comment by the parties. Thus, PPG Industries is of no benefit to Changhong.
. Changhong does not contest the ITC’s volume, price effects and impact determinations, made pursuant to 19 U.S.C. § 1677(7)(C)(i)-(iii), which form the basis of the ITC's materiality finding.
. "[T]he quantity of subject imports increased from 56,000 units in 2001 to 1.3 million units in 2002 and then to 1.8 million units in 2003.” Final Determination at 19 (citing Conf. Staff Report, Tbl. IV-2).
. United States shipments of subject imports increased from [[ ]] units in 2001 to [[ ]] in 2002 and then to [[ ]] in 2003. Final Determination at 19 (citing Conf. Staff Re- ' port, Tbl. IV-3).
. The share of apparent U.S. consumption represented by subject imports increased from [[ ]] percent in 2001 to [[ ]] percent in 2002 and then to [[ ]] percent in 2003. Fi
.Subsection 1677(7)(C)(iii) lists the following economic factors, which the ITC must consider in the context of the business cycle and conditions of competition of the affected industry:
(I) actual and potential decline in output, sales, market share, profits, productivity, return on investments, and utilization of capacity,
(II) factors affecting domestic prices,
(III) actual and potential negative effects on cash flow, inventories, employment, wages, growth, ability to raise capital, and investment,
(IV) actual and potential negative effects on the existing development and production efforts of the domestic industry, including efforts to develop a derivative or more advanced version of the domestic like product, and
(V) in a proceeding under part II of this subtitle, the magnitude of the margin of dumping.
19 U.S.C. § 1677(7)(C)(iii).
. In addition, the ITC expressly addressed the respondents' argument that "declines in the domestic industry's domestic shipments of CTVs were ... offset by increases in the domestic producer's shipments of non-[cathode ray tube] televisions,” finding that the decline in the domestic industry's CTV shipments was many times greater than the increase in domestic producers' U.S. shipments of non-cathode ray tube televisions during the period of investigation. Final Determination at 30 (citing Conf. Staff Report, Tbl. E-13).
. The ITC specifically discussed non-subject imports from Mexico in the Final Determination. It is undisputed that Mexico was the largest source of non-subject imports during the period of investigation. Pl.’s Supp. Br. at 20 & Tbl. 1 at 17; Def.'s Opp’n Mem. at 22. The ITC explained that subject imports were priced lower than not only the domestic like product but also non-subject imports. Final Determination at 23 ("[Sjubject imports from China also undersold imports from Mexico in 16 of 23 quarterly comparisons.”).