LG Semicon Co. v. United States

Slip Op. 99-144
UNITED STATES COURT OF INTERNATIONAL TRADE
BEFORE: RICHARD W. GOLDBERG, JUDGE
LG SEMICON CO., LTD., and
LG SEMICON AMERICA, INC.,
Plaintiffs,
PUBLIC VERSION
v.
Court No. 98-10-03076
UNITED STATES,
Defendant,
and
MICRON TECHNOLOGY, INC.,
Defendant-Intervenor.
Dated: December 30, 1999
Kaye, Scholer, Fierman, Hays,& Handler, LLP (Michael P. House and
Raymond Paretzky) for plaintiffs LG Semicon Co., Ltd. and LG
Semicon America, Inc.
David W. Ogden, Acting Assistant Attorney General; David M.
Cohen, Director, Commercial Litigation Branch, Civil Division,
United States Department of Justice; Kenneth S. Kessler,
Attorney, Commercial Litigation Branch, Civil Division, United
States Department of Justice; Office of the Chief Counsel for
Import Administration, United States Department of Commerce
(Patrick V. Gallagher, Jr.), of counsel, for defendant.
Hale and Dorr, LLP (Gilbert B. Kaplan, Michael D. Esch, Paul W.
Jameson, and Cris R. Revaz) for defendant-intervenor Micron
Technology, Inc.
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OPINION
GOLDBERG, Judge: In this action, the Court reviews the United
States Department of Commerce’s (“Commerce”) Dynamic Random
Access Memory Semiconductors of One Megabit or Above From the
Republic of Korea: Final Results of Antidumping Duty
Administrative Review, Partial Rescission of Administrative
Review and Notice of Determination Not to Revoke Order, 63 Fed.
Reg. 50,867 (Sept. 23, 1998), as amended, 63 Fed. Reg. 56,906(Oct. 23, 1998)(“Final Results”). Plaintiffs LG Semicon Co.,
Ltd. and LG Semicon America, Inc. (collectively “LG Semicon”)
complain that in the Final Results Commerce applied a “knew or
should have known” standard to determine that third country sales
should be treated as U.S. sales for purposes of calculating a
dumping margin. According to plaintiffs, the proper test should
be actual knowledge. Plaintiffs also argue that regardless of
the standard applied, Commerce’s determination is not supported
by substantial evidence.
The Court exercises jurisdiction to review this motion for
judgment upon the agency record pursuant to 28 U.S.C. §
1581(c)(1994). The Court sustains Commerce’s Final Results.
Court No. 98-10-03076 Page 3
I.
BACKGROUND
On April 22, 1992, Micron Technology, Inc. (“Micron”), the
defendant-intervenor in the instant action, filed an antidumping
petition alleging that Dynamic Random Access Memory
Semiconductors (“DRAMs”) imported from Korea were being sold in
the United States at less than fair market value. After an
investigation, Commerce published, on May 10, 1993, an
antidumping duty order covering such imports. Antidumping Duty
Order and Amended Final Determination: Dynamic Random Access
Memory Semiconductors of One Megabit and Above from the Republic
of Korea, 58 Fed. Reg. 27,520 (May 10, 1993).
In response to requests from both domestic and foreign
producers, Commerce initiated the fourth antidumping duty
administrative review of the order on July 19, 1997. Initiation
of Antidumping and Countervailing Duty Administration Reviews and
Request for Revocation in Part, 62 Fed. Reg. 33,394 (July 19,
1997). The review covered the period May 1, 1996, through April
30, 1997. Id. On March 3, 1998, Commerce published its
preliminary results of the fourth review. Dynamic Random Access
Memory Semiconductors of one Megabit or Above From the Republic
of Korea; Preliminary Results of Antidumping Duty Administrative
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Review and Notice of Intent not to Revoke Order, 63 Fed. Reg.
11,411 (Mar. 9, 1998)(“Preliminary Results”).
In the Preliminary Results, Commerce “determined that a
number of sales LG [Semicon] had reported as being to a third
country were actually sales to the United States.” Id. at
11,412. As a result, Commerce used “both the reported and the
unreported sales to the United States” to calculate LG Semicon’s
dumping margin. Id. LG Semicon challenged the Preliminary
Results. It claimed it had no knowledge that its third country
sales, which consisted of DRAMs sold to a foreign business, would
be exported to the United States. See App. to Pls. LG Semicon
Co., Ltd. and LG Semicon America, Inc.’s Reply Br. in Supp. of
Pls.’ Mot. for J. upon the Agency R. (“Pls.’ App.”), at
Confidential Record (“C.R.”) 1935 (Case Br. of LG Semicon Co.,
Ltd. and LG Semicon America, Inc. (Apr. 28, 1998), 26-27).
Nonetheless, Commerce maintained in the Final Results that
“a number of sales that LG reported as third-country sales were
actually [unreported] sales to the United States.” 63 Fed. Reg.
at 50,868. It determined “that at the time LG made these sales
it knew, or should have known, that the DRAMs were destined for
consumption in the United States.” Id. Thus, in calculating LG
Semicon’s dumping margin of 9.28%, Commerce included LG Semicon’s
Court No. 98-10-03076 Page 5
sales to the foreign business. See id.
II.
STANDARD OF REVIEW
Commerce’s Final Results will be sustained if they are
supported by substantial evidence on the record and are otherwise
in accordance with the law. See 19 U.S.C. § 1516a(b)(1)(B)
(1994).
To determine whether Commerce’s interpretation of a statute
is in accordance with law, the Court applies the two-prong test
set forth in Chevron U.S.A., Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837 (1984). Chevron first directs the
Court to determine “whether Congress has directly spoken to the
precise question at issue.” Id. at 842. The Court first looks
to the statute’s text to ascertain “Congress’s purpose and
intent.” Timex V.I., Inc. v. United States, ___ Fed. Cir. (T)
__, __, 157 F.3d 879, 881 (1998) (citing Chevron, 467 U.S. at842-43 & n.9). If the plain language of the statute is not
dispositive, the Court will then consider the statute’s
structure, canons of statutory interpretation, and legislative
history. See id. at 882 (citing Dunn v. Commodity Futures
Trading Comm’n, 519 U.S. 465, 470-80 (1997)); Chevron 467 U.S.
at 859-63; Oshkosh Truck Corp. v. United States, 123 F.3d 1477,
Court No. 98-10-03076 Page 6
1481 (Fed. Cir. 1997)). If Congress’s intent is unambiguous, the
Court must give it effect. See id.If the statute is either silent or ambiguous on the question
at issue, however, “the question for the court is whether the
agency’s answer is based on a permissible construction of the
statute.” Chevron, 467 U.S. at 843 (footnote omitted). Thus,
the second prong of the Chevron test directs the Court to
consider the reasonableness of Commerce’s interpretation. See
id.With respect to Commerce’s factual findings, the Court will
uphold the agency if its findings are supported by substantial
evidence. “Substantial evidence is something more than a ‘mere
scintilla,’ and must be enough reasonably to support a
conclusion.” Ceramica Regiomontana, S.A. v. United States, 10
CIT 399, 405, 636 F. Supp. 961, 966 (1986) (citations omitted),
aff’d, 5 Fed. Cir. (T) 77, 810 F.2d 1137 (1987). In applying
this standard, courts must sustain Commerce’s factual
determinations so long as they are reasonable and supported by
the record as a whole, even if there is some evidence that
detracts from the agency’s conclusions. See Atlantic Sugar, Ltd.
v. United States, 2 Fed. Cir. (T) 130, 137, 744 F.2d 1556, 1563
(1984).
Court No. 98-10-03076 Page 7
III.
DISCUSSION
In the discussion below, the Court first examines whether
Commerce’s application of the “knew or should have known”
standard is in accordance with the law. The Court then considers
whether Commerce’s finding that LG Semicon “knew or should have
known” the DRAMs sold to the foreign business were destined for
the United States is supported by substantial evidence. The
Court finds in the affirmative on both questions.
A. Commerce’s Application of the “Knew or Should Have Known”
Standard is Consistent with Legislative Intent and Prior
Practice.
LG Semicon asserts that Commerce incorrectly classified the
DRAMs sold to the foreign business as “unreported U.S. sales” and
thus incorrectly included such sales in LG Semicon’s dumping
margin. See Br. of Pls. LG Semicon Co., Ltd. and LG Semicon
America, Inc. in Supp. of Pls.’ Mot. for J. Upon the Agency R.
(“Pls.’ Br.”), at 2. Specifically, LG Semicon challenges
Commerce’s finding that LG Semicon “knew or should have known”
the ultimate destination of the DRAMs. See id. LG Semicon claims
that the U.S. antidumping statute, legislative history, holdings
of this court, and Commerce’s own administrative decisions do not
Court No. 98-10-03076 Page 8
support Commerce’s application of the “knew or should have known”
standard. Id. The Court does not agree.
Under the U.S. antidumping statute, dumping margins are
determined by comparing export price to normal value. See 19
U.S.C. §§ 1675(a)(2), 1677a(a), 1677f-1(c)(1994).
The term “export price” means the price at
which the subject merchandise is first sold
(or agreed to be sold) before the date of
exportation [to the U.S.] by the producer or
exporter of the subject merchandise outside of
the United States to an unaffiliated purchaser
in the United States or to an unaffiliated
purchaser for exportation to the United
States.
19 U.S.C. § 1677a(a)(emphasis added). Thus, according to the
plain language of the statute, Commerce must base export price
not only on sales of the subject merchandise to unaffiliated
purchasers in the United States, but also on sales to
unaffiliated purchasers outside of the United States “for
exportation to the United States.” Id. Congress did not,
however, instruct Commerce how to determine if merchandise has
been sold “for exportation to the United States” in the text of
the statute itself.
LG Semicon contends that Congress’s intent on this matter is
evident from legislative history and that Commerce’s application
of the “knew or should have known” standard is contrary to such
Court No. 98-10-03076 Page 9
intent. See Pls.’ Br., at 16. Commerce and Micron argue that
Commerce’s standard comports with legislative intent. See Def.’s
Mem. in Opp’n to Pls.’ Mot. for J. Upon the Agency R. (“Def.’s
Br.”), at 18-19; Br. of Def.-Intervenor Micron Technology, Inc.
in Opp’n to Pls.’ Mot. for J. on the Agency R., (“Def.-
Intervenor’s Br.”), at 10-11. The Court agrees.
Commerce’s “knew or should have known standard” is plainly
consistent with Congressional intent. The definition of “purchase
price”1 in the Statement of Administrative Action (“SAA”)
accompanying the Trade Agreements Act of 1979, “makes clear that
if the producer knew or had reason to know the goods were for
sale to an unrelated U.S. buyer...the producer’s sales price will
be used as ‘purchase price’ to be compared with that producer’s
foreign market value.” H.R. Doc. No. 96-153, at 411
(1979)(emphasis added). And the SSA was expressly approved by
Congress. See 19 U.S.C. § 2503(a) (1994) (“Congress approves the
1
The terminology originally used was “purchase price.”
Congress later changed the term to “export price.” See 19 U.S.C.
§ 1677a(a). Congress made clear, however, that the two terms are
coextensive. See The Uruguay Round Agreement Act, Statement of
Administrative Action, H.R. Doc. 103-316, at 822-23 (1994)
(“Notwithstanding the change in terminology, no change is
intended in the circumstances under which export price (formerly
‘purchase price’) versus construed export price (formerly
‘exporters sales price’) are used.”).
Court No. 98-10-03076 Page 10
trade agreements...submitted to the Congress on June 19, 1979,
and the statements of administrative action proposed to implement
such trade agreements submitted to the Congress on that date.”).
LG Semicon also argues that Commerce’s “knew or should have
known” standard is impermissible because it is contrary to
Commerce’s prior consistent practice. See, e.g., M.M. & P.
Maritime Advancement, Training, Educ. & Safety Program v.
Department of Commerce, 2 Fed. Cir. (T) 36, 43-44, 729 F.2d 748,
755 (1984) (Commerce is obligated to follow a consistent practice
unless it supplies adequate explanation). LG Semicon maintains
that Commerce’s consistent practice has been to apply an actual
knowledge standard when evaluating whether third-party sales were
“for” exportation to the United States. Pls.’ Br., at 16-25. The
Court disagrees with this contention.
In its briefs, LG Semicon identifies several determinations
and cases that contain poorly crafted passages and language
choices which tend to cloud the standard utilized by Commerce.
See, e.g., INA Walzlager Schaeffler KG v. United States, 21 CIT
__, 957 F. Supp. 251 (1997); Tapered Roller Bearings and Parts
Thereof, Finished and Unfinished, From the People’s Republic of
China; Final Results of Antidumping Duty Administrative Reviews,
61 Fed. Reg. 65,527, 65,539 (Dec. 13, 1996). An examination of
Court No. 98-10-03076 Page 11
these determinations and cases, however, together with other
Commerce determinations and judicial opinions, demonstrates that
Commerce’s application of the “knew or should have known”
standard is consistent with the prior practice of the agency.2
First, Commerce has consistently applied the “knew or should
have known” standard in prior determinations. For example, in
Certain Pasta from Italy: Termination of New Shipper Antidumping
Administrative Review, 62 Fed. Reg. 66,602 (Dec. 19, 1997),
2
For example, LG Semicon cites NSK Ltd. v. United States,
21 CIT__, 969 F. Supp. 34 (1997), for the proposition that
Commerce utilizes a “knowledge” test which evaluates only actual
knowledge. LG Semicon bases this contention, in part, on the
legislative history cited by NSK which states that “if a producer
knew that the merchandise was intended for sale to an unrelated
purchaser in the United States..., the producer’s sale prices to
an unrelated middleman will be used as the purchase price.” 969
F.Supp., at 60 (citing S.Rep. No. 96-249, at 94 (1979), reprinted
in U.S.C.C.A.N. 381, 480 (emphasis added).
But the NSK court also cited, in the same string citation no
less, H.R. No. 96-153, at 411, which states that, “[t]he
definition makes clear that if the producer knew or had reason to
know the goods were for sale to an unrelated U.S. buyer,...the
producer’s sales price will be used as ‘purchase price’.”
(emphasis added).
Likewise, LG Semicon is misled by the INA decision. See 957
F. Supp. at 263. Unfortunately, INA is susceptible to
misinterpretation due to its somewhat nebulous distinction
between Section 1677a(b) and Section 1677b(a). See id. LG
Semicon contends that INA makes a distinction based on the
statutory provisions’ different requirements for actual and
imputed knowledge. See Pls.’ Br., at 20-21. The distinction INA
actually makes between the two statutory provisions, however, is
one between general and specific knowledge. See INA, 957 F.
Supp., at 263-65 & n.3.
Court No. 98-10-03076 Page 12
Commerce concluded that the sales of a pasta product in the
United States should have been assigned to the pasta’s Italian
producer, not the unaffiliated U.S. trading company. See id. at
66,602-03. Commerce stated that “certain proprietary information
on the record concerning the nature of the relationship between
the parties involved in this review demonstrate that the producer
knew or had reason to know that the pasta it sold...was destined
for the United States.” Id. (emphasis added); accord Television
Receivers, Monochrome and Color, From Japan; Final Results of
Antidumping Duty Administrative Review, 58 Fed. Reg. 11,211,
11,216 (Feb. 24, 1993); Natural Bristle Paint Brushes and Brush
Heads From the People’s Republic of China; Final Results of
Antidumping Duty Administrative Review, 55 Fed. Reg. 42,599,
42,599-61 (Oct. 22, 1990).
Moreover, Commerce’s use of the “knew or should have known”
standard was recognized and upheld by this court and the Federal
Circuit in Yue Pak, Ltd. v. United States, 20 CIT 495 (1996),
aff’d, No. 96-1398, 1997 WL 130319 (Fed. Cir. Mar. 21,
1997)(unpublished). In reviewing Commerce’s practice this court
found that
Commerce interprets the phrase “for
exportation to the United States” to mean that
the reseller or manufacturer from whom the
Court No. 98-10-03076 Page 13
merchandise was purchased knew or should have
known at the time of the sale that the
merchandise was being exported to the United
States.
Yue Pak, 20 CIT at 498 (emphasis added)3. Further, the court
sustained Commerce’s determination because the evidence was
“adequate to support Commerce’s conclusion that Plaintiff’s
suppliers knew or should have known of the U.S. destination of
the merchandise.” See id. at 503 (emphasis added).
In conclusion, Commerce’s application of the “knew or should
have known” standard is in conformance with legislative history,
is a consistent practice of the agency, and has been previously
sustained by this court. Thus, the Court finds Commerce’s Final
Results to be in accordance with the law.
3
The Court acknowledges that the Yue Pak Court cites two
cases that do not seem to explicitly support this proposition.
See Yue Pak, 20 CIT 498 (citing Sandvik AB v. U.S., 13 CIT 738,
721 F. Supp. 1322, aff’d, 904 F.2d 46 (Fed. Cir. 1990); Peer
Bearing Co. v. U.S., 16 CIT 799, 803-804, 800 F. Supp. 959, 964
(1992)); Pls.’ Br., at 24. Nonetheless, the Court defers to the
Yue Pak court’s decision, and the Federal Circuit’s affirmation
thereof, and finds that the cases cited at least tangentially
support the proposition. See id. This deference is especially
appropriate in light of numerous other Commerce determinations
that consistently apply the “knew or should have known” standard.
Court No. 98-10-03076 Page 14
B. Commerce’s Determination that LG Semicon Knew or Should Have
Known That DRAMs it Sold to the Foreign Business Were
Destined for Export to the United States is Supported by
Substantial Evidence.
LG Semicon next argues that Commerce’s determination is not
supported by substantial evidence under either the “actual
knowledge” standard urged by LG Semicon or the “knew or should
have known” standard used by Commerce. See Pls.’ Br., at 25-43.
The administrative record as a whole, however, supports
Commerce’s finding that LG Semicon knew or should have known the
DRAMs sold to the foreign business were destined for export to
the United States. Commerce determined that LG Semicon knew or
should have known its DRAMs were destined for export to the
United States for a number of reasons. See Def.’s Br., at 24-37.
The Court will address the most compelling reasons here. First,
the volume of DRAMs LG Semicon sold to the foreign business was
disproportionate to the foreign business’ production capacity and
the corresponding market capacity. Second, the foreign business
bears the indices of a maquiladora, a common mechanism for
exportation of goods from Mexico to the United States. And
finally, LG Semicon monitored the U.S. DRAMs market closely and
would have been aware of sales of its product in the United
States by an external source.
Court No. 98-10-03076 Page 15
The strongest evidence on the record is the volume of sales
LG Semicon made to the foreign business during the period of
review (“POR”) in comparison to the size of the foreign business’
operations and the relevant non-U.S. market. See 63 Fed. Reg. at
50,876-77; Pls.’ App., at CR 2023 (Mem. of 09/08/98 from John
Conniff to Holly Kuga (“Unreported Sales Mem.")). This evidence
supports Commerce’s conclusion that given the number of DRAMs it
sold to the foreign business, LG Semicon knew or should have
known that the foreign business could not process those DRAMs;
and that neither the Mexican nor Latin American market could
absorb the DRAMs.
The sales statistics as evidence is persuasive. LG Semicon
sold a large number of DRAMs to the foreign business during the
POR. See App. to Def.-Intervenor Micron Technology, Inc.’s Br.
in Opp’n to Pls.’ Mot. for J. on the Agency R. (“Def.-
Intervenor’s App.”), at CR 1902 (Letter of 04/22/99 from Michael
Kaplan, et al. to LaRussa, (“LaRussa Letter”), 15). Put in
perspective, LG Semicon’s sales of DRAMs to the foreign business
during the POR were nearly three times LG Semicon’s aggregate
sales in the United States -- the largest market for DRAMs in the
world -- during the same period. See id. Significantly, in a
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short span of time, the foreign business became the world’s
largest customer of LG Semicon’s American operation. See Id.
And, LG Semicon was allegedly only one of the many companies that
supplied DRAMs to the foreign business. See Pls.’ App., at CR
1860 (Mem. of 01/14/98 from Brian C. Smith and Rebecca Woodings
to Louis Apple, 6.).
The sales statistics are particularly significant because of
the size and limited production capabilities of the foreign
business. By LG Semicon’s own account, the foreign business
utilized few production lines with few production workers. See
Def.-Intervenor’s App., at CR 1853 (Letter of 03/24/98 from Kaye,
Scholer, Fierman, Hayes & Handler LLP to the Secretary of
Commerce (“Kaye, Scholer Letter of 03/24/98"), App. 1, Decl. of
Robert Simon, LG Sales Dir. for the Southwestern Area (“Simon
Decl.”), ¶ 4).
Moreover, the relevant foreign markets that might have been
able to absorb the DRAMs LG Semicon sold to the foreign business
were limited. See Unreported Sales Mem., 6. The Mexican market
for integrated circuits, of which only a portion is attributed to
DRAMs, is approximately $200 million a year. See id. The entire
Latin American market for integrated circuits is $400 million.
Court No. 98-10-03076 Page 17
See id. Because LG Semicon’s sales to the foreign business were
substantial, those sales alone accounted for a large part of both
the Mexican and Latin American markets for integrated circuits.
In short, LG Semicon sold a disporportionate number of DRAMs
to a limited assembly facility within a limited market. This
evidence reasonably supports Commerce’s conclusion that LG
Semicon knew or should have known that the DRAMs it sold to the
foreign business most likely could not be processed by that
entity or absorbed by the Mexican or Latin American markets, and
instead were destined for export to the United States. This
conclusion is especially sound when LG Semicon’s self-proclaimed
“intimate knowledge” of the foreign business and DRAM market is
taken into account. See Simon Decl., ¶ 4; Kaye, Scholer Letter
of 03/24/98, at App. 2, Decl. of Daniel Lee, Gen. Manager of
Sales for LG Semicon America, Inc. (“Lee Declaration”), ¶ 3-7;
Def.’s App. for Def.’s Mem. in Opp’n to Pls.’ Mot. for J. upon
the Agency R. (“Def.’s App.”), at Ex. 2 (Mem. of 07/17/98 from
Tom Futtner & John Conniff to Holly Kuga(“Commerce Mem. of
07/17/98"), 3).
As additional support for its determination, Commerce
asserts that the foreign business is a maquiladora. See Def.’s
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Br., at 29-30. A maquiladora is defined in the administrative
record as “a Mexican corporation operating under a special
customs regime which allows the corporation to temporarily import
into Mexico duty-free, raw material, equipment, machinery,
replacement parts, and other items needed for the assembly or
manufacture of finished goods for subsequent export.” See
LaRussa Letter, Attach. 3, NAFTA FAQs About Maquiladoras. In
Commerce’s view, the foreign business’ status as a maquiladora
should have alerted LG Semicon to the likelihood that its DRAMs
would be exported to the United States. See Def’s. Br., at 29-
30. As evidence that the foreign business is a maquiladora,
Commerce cites the facility’s proximity to the U.S. border,4 its
assembly of electronics (an industry that dominates maquiladora
trade),5 and the numerous importation documents which identify the
4
The record contains information demonstrating that in
1996, 80% of goods exported by maquiladoras were exported to the
United States. See LaRussa Letter, Attach. 5, Camila Castellanos,
Maquiladora Industry Spurs Development, Novedas Editores, S.A. de
C.V.
5
See LaRussa Letter, Attach. 5, Maquiladoras-Recent Trends
and Growth (“The largest concentration of maquiladoras is in
electronics, textiles, and autoparts and accessories.”).
Court No. 98-10-03076 Page 19
foreign business as a maquiladora.6
Notably, LG Semicon does not deny that the foreign business
is a maquiladora, but instead claims that even if the facility is
a maquiladora, this does not establish that the DRAMs sold to the
foreign business were destined to be exported to the United
States. See Pls.’ Br., at 36-37. It is true that the foreign
business’ probable status as a maquiladora is not dispositive to
this inquiry. It does, however, lend further support to
Commerce’s finding that LG Semicon knew or should have known the
DRAMs it sold to the foreign business would be exported to the
United States. Specifically, Commerce could reasonably infer
from the foreign business’ probable maquiladora status, together
with the other evidence, that LG Semicon knew or should have
known the foreign business could not use all the DRAMs it bought
from LG Semicon to manufacture a domestically marketable product.
Commerce could also infer that LG Semicon knew or should have
known that the surplus DRAMs would likely be exported to the
6
See Kaye, Scholer Letter of 03/24/98, Attach. 5, decl. of
Chris Chun, Ex. A. Exhibit A contains seventy-six customs
documents listing the exporter as LG Semicon and the importer as
the foreign business. See id. Each document classifies the
foreign business as operating as a maquiladora. See id.
Court No. 98-10-03076 Page 20
United States through the foreign business’ existing maquiladora
mechanism.
Lastly, there is substantial evidence supporting Commerce’s
assertion that LG Semicon knew or should have known of the
importation of the DRAMs it sold to the foreign business because
LG Semicon would have been alerted to the presence of substantial
numbers of new LG Semicon DRAMs in the U.S. market. See Def’s.
Br., at 36; Def.-Intervenor.’s Br., at 43-44. LG Semicon’s
direct sales to the U.S. market during the POR were minimal. See
LaRussa Letter, 15. The administrative record demonstrates that
a substantial number of LG Semicon’s DRAMs were exported by the
foreign business to the United States. See Unreported Sales
Mem., 2. Importantly, the value of documented exports, alone,
was approximately equal to the value of DRAMs sold by LG Semicon
in the United States during the POR. See LaRussa Letter, 15.
Moreover, there is no evidence that the LG Semicon DRAMs exported
by the foreign business were entered into the United States as
components of other products. Given these facts, as well as the
sworn affidavits from Micron and LG Semicon employees attesting
to substantial knowledge of the daily fluctuations of the U.S.
Court No. 98-10-03076 Page 21
DRAMs market,7 it is unlikely that LG Semicon was not aware that a
substantial number of new LG Semicon DRAMs were placed on the
U.S. market. Together with other supporting evidence, this
reasonably supports Commerce’s conclusion that LG Semicon knew or
should have known that its continuing sales to the foreign
business were being exported to the United States.
In summary, the Court finds substantial evidence to sustain
Commerce’s Final Results. Together, the volume of DRAMs LG
Semicon sold to the foreign business compared to the foreign
business’ production capacity and corresponding market capacity,
the foreign business’ probable status as a maquiladora, and LG
Semicon’s awareness of the U.S. DRAMs market, support Commerce’s
determination.
7
See Simon Decl.; LaRussa Letter, Ex. 4, aff. of Joseph
D’Esopo, ¶ 2.
Court No. 98-10-03076 Page 22
IV.
CONCLUSION
For all of the foregoing reasons, the Court sustains
Commerce’s Final Results. A separate order will be entered
accordingly.
___________________
Richard W. Goldberg
JUDGE
Date: December 30, 1999
New York, New York