Full opinion text
OPINION AND ORDER CARMAN, Judge: This consolidated action concerns five separately filed actions before the Court: Mitsubishi Electric Corp. v. United States, Court Nos. 85-12-01858 and 86-01-00113; NEC Corporation and NEC America, Inc. v. United States, Court No. 86-01-00100; OKI Electric Industry Co., Ltd. v. United States, Court No. 86-01-00099; and Matsushita Communication Industrial Co., Ltd., et al. v. United States, Court No. 86-01-00088. Motorola, Inc. has entered as defendant-intervenor. All of the actions involve appeals from the following administrative proceedings: (1) the final determination of the Department of Commerce, International Trade Administration (ITA) entitled Cellular Mobile Telephones and Subassemblies From Japan; Final Determination of Sales at Less Than Fair Value, 50 Fed.Reg. 45,447 (1985) (hereinafter AD Final Determination); (2) the final determination of the International Trade Commission (ITC) entitled Cellular Mobile Telephones and Sub-assemblies Thereof From Japan, USITC Pub. No. 1786, 50 Fed.Reg. 51,467 (1985); and the ITA’s antidumping duty order entitled Antidumping Duty Order: Cellular Mobile Telephones and Subassemblies From Japan, 50 Fed.Reg. 51,724 (1985). Two common questions of law involved in these consolidated actions concern: (a) Whether the ITA’s final determination of sales at less than fair value, (AD Final Determination, 50 Fed.Reg. 45,447 (1985)), to the extent that it encompassed certain CMT subassemblies and found they were being sold in the United States at less than fair value, was unsupported by substantial evidence on the record, arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law; and (b) Whether the final determination of material injury issued by the ITC (Cellular Mobile Telephones and Subassemblies Thereof From Japan, USITC Pub. No. 1786, 50 Fed.Reg. 51,467 (1985)), to the extent that it held that an industry or industries in the United States were materially injured by reason of imports of CMTs and CMT subassemblies was unsupported by substantial evidence on the record, arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law. See, Joint Motion For Consolidation at 2-3, Mitsubishi Electric Corp. v. United States, Consolidated Court No. 85-12-01858. The Court holds that the determinations by the ITA are supported by substantial evidence on the record and are in accordance with law, but remands the determination of the ITC for further findings in accordance with this decision. FACTS Defendant-intervenor Motorola, Inc. (Motorola) filed an antidumping petition with the ITA and the ITC alleging that Japanese-manufactured cellular mobile telephones (CMTs), mobile transceivers and su-bassemblies imported as “kits” were being sold or likely to be sold at less than fair value (LTFV) in the United States, in contravention of 19 U.S.C. § 1673(1), and that a domestic industry had been materially injured, was threatened with material injury, and establishment of the industry was being materially retarded by imports of the merchandise. The petition, Cellular Mobile Telephones and Subassemblies Thereof From Japan (petition), described the class or kind of merchandise to be covered under the petition as follows: The class or kind of merchandise covered by this petition is all cellular mobile telephones manufactured in Japan, plus all mobile transceivers or kits of components and subassemblies manufactured in Japan for use in final assembly of cellular mobile telephones. This petition also covers cellular mobile telephone transceivers sold alone and collections of cellular mobile telephone subassemblies (“kits”). The inclusion of mobile transceivers and kits in an anti-dumping order is essential to prevent the Japanese manufacturers from avoiding the impact of any final relief issued in this proceeding by simply importing mobile transceivers or kits containing most of the necessary subassemblies or components into the United States for final assembly and testing. Wherever this petition refers to cellular mobile telephones imported from Japan, those products should be understood to include also cellular mobile telephones made primarily using kits or mobile transceivers imported from Japan. Administrative Record, Doc. No. 1 at 10-12, Cellular Mobile Telephones and Subassemblies Thereof From Japan, (Case No. A-558-405) (hereinafter Rec.Doc.). In the petition, Motorola supplied the purported tariff classification of the merchandise to be investigated by the ITA. Plaintiff submitted its request for relief be applied to the merchandise classified as follows: D. Tariff Classification Cellular mobile telephones probably should be imported under tariff classification TSUS 685.2943, which is merely a catch-all or clean-up classification. Transceivers, kits or subassemblies for such telephones probably should be imported under the same TSUS classification or perhaps under TSUS 685.2325, 685.2476, 685.2940. 685.2970, or 685.2976. However, because cellular telephones did not exist when the present tariff classifications were created, and because the breadth and ambiguity of the existing tariff classifications may allow these products to enter without chal lenge under numerous different classifications, it is essential that any relief provided in this proceeding apply not only to imports under specific TSUS numbers, but also generally to any cellular mobile telephones, and to any transceivers, kits or subassemblies for cellular mobile telephones, whatever the tariff classification of such products. Rec.Doc. 1 at 12-13 (emphasis added). The petition also contained an explanation of the extent of Motorola’s intent to include CMT subassemblies within the scope of the ITA investigation. The following sets forth Motorola’s reasoning: Apparently recognizing that their prices are at less than fair value, but nevertheless determined to charge such prices, several Japanese manufacturers have made preliminary plans to circumvent the law by creating the facade of manufacturing cellular mobile telephones in the United States; when in fact that ‘manufacturing’ uses kits (collections of key components) or mobile transceivers (containing roughly 80% of the cellular mobile telephone’s electronics) that are made in Japan. Even if the final assembly of the pieces of an OKI, Matsushita, NEC or Kokusai mobile telephone occurs in the U.S., those telephones are in reality manufactured in Japan, where they are conceived, financed, designed, engineered, and supervised and where their major subassemblies and components are designed and produced. The administration and ownership of the manufacturing effort, and the research, design, development and creation of components is the heart of the industry. To prevent a clear evasion of the antidumping law by the Japanese, it is essential that not only cellular mobile telephones, but also kits and mobile transceivers for cellular mobile telephones be covered by antidump-ing protection. sfc * * * * * ... The inclusion of mobile transceivers and kits in an antidumping order is essential to prevent the Japanese manufacturers from avoiding the impact of any final relief issued in this proceeding by simply importing mobile transceivers or kits containing most of the necessary subassemblies or components into the United States for final assembly and testing. Id. at 6-7, 11. The petition also contained a reference to a citation from an economic journal published in Japan which stated why some Japanese manufacturers of CMTs (specifically OKI, Matsushita, Mitsubishi, and NEC) were deciding to or considering the idea of trying to import subas-sembly pieces of CMTs into the United States to avoid antidumping charges on complete CMTs. See id. at 11 n. 1, App. K, Car Telephone: Sales Battle Intensifies in Europe, U.S., June 29, 1984, Nihon Keizai Shimbun. The petition also set forth allegations that “dumping margins of 50% are common, with some margins as high as 100%.” Id. at 6. Motorola stated in the petition that bargain prices of CMTs would exist at a level of two thousand (2,000) dollars or less while Japanese manufacturers offered CMTs at a level of one thousand (1,000) dollars or less. See id. at 17, 41. Motorola also contended in its petition losses of fifty (50) million dollars in potential revenues had been lost to Japanese sales, see id. at 3, where “the U.S. industry currently supplies less than half of the U.S. market demand for cellular mobile telephones.” Id. at 8. Motorola also explained, under its classification section, its concern that the infancy of the industry would possibly not allow for the proper inclusion of the subject merchandise under established classifications and thus allow these products to be entered into the U.S. while evading the dumping relief sought by the domestic industry. Id. at 12-13. On November 5, 1984, the ITC initiated its preliminary investigation on CMTs and subassemblies from Japan. Cellular Mobile Telephones and Assemblies Thereof From Japan, 49 Fed.Reg. 45,274 (1984). The ITA initiated its antidumping duty investigation on November 26, 1984 pursuant to 19 U.S.C. § 1673a(c)(2), “to determine whether [CMTs] and subassemblies from Japan are being, or are likely to be, sold in the United States at less than fair value.” Cellular Mobile Telephones and Subassemblies from Japan, 49 Fed.Reg. 47,076 (1984). The ITA defined the scope of the investigation as including subassemblies in general, not restricting the scope to subas-semblies sold only in kits or collections. Specifically, the ITA set forth the scope of the investigation would cover subassem-blies as defined as circuit modules and/or any other packaged functional assemblage of electronic components, dedicated for use in cellular mobile telephone transceivers or control units. Examples of such assemblies include audio processing modules, signal processing (logic) modules, RF modules, IF modules, synthesizers, duplexers, and power amplifiers. Rec.Doc. 5 at 4. On December 4, 1984, the ITA issued preliminary questionnaires to nine Japanese companies (Fujitsu, Hitachi, Ltd. of Japan (Hitachi), Japan Radio Corp., Koku-sai Electric Co., Ltd., Matsushita, Mitsubishi, NEC, OKI, and Toshiba), which Motorola had targeted as foreign companies dumping CMTs. Rec.Docs. 18-26. Toshiba reported in its response that it sold a small quantity of kits, and NEC, OKI, and Matsushita reported in their responses sales of subassemblies to the United States. Rec.Docs. 31, 38, 42, 43. Mitsubishi responded that it had sold CMTs only to the United States and Sweden, and had made no sales in the home market between June 1 and November 30, 1984, the period covered by the investigation. It indicated that it had supplied Nippon Telegraph and Telephone Company with sample units of transceivers “for testing purposes”. Rec.Doc. 37 at 2. The ITA decided to investigate six companies which could provide substantial coverage of sales of CMTs and subassemblies: Hitachi, Matsushita, Mitsubishi, OKI, Toshiba and NEC. Rec.Docs. 15, 16, 69, 70. Fujitsu, Matsushita, NEC, and OKI, respondents to the investigation, objected to the ITA’s inclusion of discrete subassem-blies within the scope of the investigation throughout the investigation proceedings. See e.g., Rec.Docs. 35, 41, 43, 189, 300, 303, 307, 308. On December 18, 1984, the ITC determined by a 4 to 1 vote (Commissioner Lei-beler dissenting) that there was a reasonable indication that an industry or industries in the U.S. were materially injured or threatened with material injury by reason of imports of CMTs and subassemblies from Japan allegedly sold in the U.S. at less than fair value, pursuant to 19 U.S.C. § 1673b. Cellular Mobile Telephones And Subassemblies Thereof From Japan (Preliminary Investigation), USITC Pub. No. 1629 (1984), 49 Fed.Reg. 50,316 (1984). Throughout the investigation, Motorola also submitted to the ITA several submissions countering the objections of the six respondent companies concerning discrete subassemblies. On January 15, 1985, Motorola expressed its desire to the ITA to clarify the intent of the petition was to cover sales of discrete subassemblies; and to express it reaffirmed the ITA’s and the ITC’s determinations that “subassemblies are properly part of [the] investigation.” Rec.Doc. 46 at 2. Motorola also emphasized in its submission the “petition by its title specifically covers subassemblies.” Id. at 5. Motorola, in the petition reiterated its concern of including subassemblies within the scope of the investigation to prevent Japanese companies from evading and contravening the antidumping law of the U.S. Motorola expressed its intent not to include “instances in which an independent manufacturer exports a single, simple subassem-bly for sale to an unrelated U.S. manufacturer, [but] ... to indicate ... that the object is imports of the different subassem-blies that considered together make up ‘most of the necessary subassemblies’ for the CMT.” Id. at 3-4, 5-6. Motorola continued that “[w]hether such subassemblies are packaged together or discretely for shipment, they clearly fall within the parameters and intended scope of the petition.” Id. at 6. Motorola also pointed out: The only reason that Motorola included subassemblies in its petition was its well- ■ founded apprehension that failure to do so would permit evasion of an anti-dumping duty order by Japanese producers, who would bring major subas-semblies into the U.S., claiming that they were not cellular mobile telephones, and then would perform the relatively minor final assembly in the United States. * * * * * * ... The dumping of transceivers or of collections of major subassemblies ... for final assembly in the United States does or would result in the same injurious impact on the U.S. industry as dumping of completed cellular mobile telephones. $ 5j{ sfc sfc sf: Motorola does not seek to include in this proceeding minor subassemblies and components ... but rather those major subassemblies that would typically constitute 5% or more of the material cost of the product____ ITC Rec.Doc. 46 at 27-29 (emphasis added). On January 25, 1985, Motorola stated, in submitted comments, its concurrence with the ITA’s determined scope of the investigation, and on February 21, 1985, Motorola suggested slight modification of the ITA’s definition of subassemblies and housing within the scope of the investigation. Rec. Doc. 54 at 12, 83. Motorola’s February 21, 1985 letter also stated: “[t]he petition covers transceivers, control units, and other subassemblies described in the proposed definition above, whether they are imported separately, in sets, or in bulk.” Rec.Doc. 83 at 6. Motorola also pointed out only substantial sales of subassemblies consisted of exports from Japanese manufacturers to their U.S. subsidiaries. The only sales Motorola did not intend to cover, Motorola continued, were isolated sales of single subassemblies “on the open market from ... unrelated manufacturers in Japan”, unless there were additional sales of other subassemblies which together constituted a significant portion of a CMT or transceiver, or each isolated sale consisted of a large subassembly which by itself accounted for a significant portion of a CMT or transceiver. Id. at 7-8. The ITA mailed questionnaires to the six investigated companies in the early part of February, 1985. Rec.Docs. 59-63, 70. The questionnaires requested sales and cost information for the merchandise under review covering a time period of June 1, 1984 through November 30, 1984. The ITA indicated that although the merchandise investigated was the same as initially announced in the notice of initiation, the product description of subassemblies was still under investigation. Concerning the sales information requested, the questionnaires contained what constituted a sale. A sale was defined as follows: Any sale whose date of sale falls within the period of investigation is subject to investigation. For our purposes, the sales are dated from the point in the transaction where the basic terms of the contract are known and the price to be paid is determined. It is not the date on which the actual price is paid, since that ultimate price may have been influenced by events beyond the control of both parties, such as fluctuations in exchange rates. The date of sale is thus the date on which the agreed-upon price is confirmed. The term ‘sale’ also includes leasing arrangements which are entered into during the period of investigation. Rec.Doc. 64 at 39. On February 13, 1985, Commerce sent the respondents a follow-up letter clarifying certain aspects of the questionnaire, including which sales were under investigation and the definition of “date of sale”: This investigation covers any sale whose ‘date of sale’ falls within the period of investigation____ Additionally, as a point of further clarification, please note that the ‘date of sale’ is that point in the transaction where all the terms are finally determined. Any subsequent change, or addition to, the terms of a contract would constitute a new ‘date of sale.’ Thus, even if a contractual agreement was entered into prior to the period of investigation, if any of the terms of that agreement are modified or altered in any way within the period of investigation, we would consider these contract modifications to be ‘sales’ which must be reported. Examples of changes which would alter the date of sale under a typical contract would be: —Prices which are subject to ongoing negotiation; —Volume and terms subject to renegotiation; —Product improvements, feature changes and model changes; —Additional or changed Warranty guarantee or servicing arrangements; Financing arrangements; Delivery terms; Lease/rental programs; Rebate agreements. Rec.Docs. 71-76. Hitachi, Mitsubishi, NEC, OKI and Toshiba submitted responses between March 18 and April 19, 1985. Rec.Docs. 116, 117, 119, 121, 142, 155, 160, 164, 169. Sales or exports of subassemblies were reported by three of the companies. Hitachi indicated it had minor sales of certain spare CMT modules to an unrelated U.S. company for use in a repair and warranty program. Rec.Doc. 277 at 7. NEC responded that it exported subassemblies to a wholly-owned subsidiary in the United States manufacturing CMTs and sold spare kits and accessory kits in the United States. Rec.Docs. 38, 171, 291. Oki indicated it sold subas-semblies to a related manufacturer of CMTs in the United States. Rec.Docs. 119, 182, 310. Mitsubishi indicated sales of CMTs to only the United States and Sweden in its response and subsequent amendments to the response. Rec.Docs. 116,155. The ITA verified the five responses in the several offices of companies in the United States and Japan in April, May and June of 1985. Rec.Docs. 188, 257, 263, 267, 288-289, 295, 322. An analyst at the ITA discovered, during the verification proceedings, that Mitsubishi had made sales of CMT transceivers in the home market during the period of investigation which sales it had failed to report. The analyst also ascertained that Mitsubishi had qualified as a supplier of CMTs for Nippon Telephone and Telegraph Company (NTT) during the period of investigation. Rec.Doc. 257 at 23. The analyst verified Mitsubishi had shipped test samples of transceivers to NTT’s subsidiary in August and September of 1984, as it had reported in its preliminary questionnaire response. Mitsubishi received compensation for the samples in November 1984. Id. at 25. The analyst from the ITA also discovered other sales of transceivers to NTT’s subsidiary in Japan. He examined three purchase orders dated within the period covered by the investigation and noted the purchase orders contained the date of order, date of delivery, quantity, unit price and total price. Id. at 24-27. Although the analyst from the ITA did not discover any documents in which Mitsubishi had formally accepted the orders, his report indicated Mitsubishi’s headquarters and plant had issued production orders for the same merchandise which was included in the sales in May 1984. The orders showed the beginning and final delivery dates of the merchandise, the total approximate price, estimated cost of sale, the customer, and the total quantity. The date of the customer order was left blank on the forms. Rec.Doc. 257 at 25-26. The analyst noted Mitsubishi officials claimed Mitsubishi issued production orders “at its own risk” based on anticipated sales orders from the NTT subsidiary. Id. at 25. On May 24, 1985, Motorola submitted comments about Matsushita and NEC. It reiterated its stance any determination issued by the ITA from its investigation should include “all [CMTs], transceivers, control units, and subassemblies for CMTs manufactured by [the Japanese manufacturers] and imported into the United States.” Rec.Doc. 202 at 3-4. Motorola also commented on the controversy of the inclusion of the subassemblies. Those observations were as follows: there is often a necessity for flexibility as the Department determines the best and most practicable method of applying the antidumping law to the products identified in the petition. In this case, subassemblies were clearly included in the petition, which was titled “Cellular Mobile Telephones and Subassemblies Thereof from Japan,” and while the investigation may have shown that the packaging of some of those subassem-blies was somewhat different than Motorola’s understanding, subassemblies were clearly a target of the petition and thus are properly within the scope of the investigation. Rec.Doc. 309 at 81. Motorola also responded to a request from Matsushita that replacement parts be excluded from the investigation. Motorola stated “the Department should accede to Matsushita’s request only if it is fully satisfied that ‘repair’ subassemblies are so easily and verifiably distinguishable from ‘production’ subas-semblies that there is no possibility of circumvention of an antidumping duty order.” Rec.Doc. 309 at 92. On June 11, 1985, the ITA published its affirmative preliminary determination “that cellular mobile telephones and subassemblies from Japan [were] being, or were] likely to be,, [sic] sold in the United States at less than fair value.” Cellular Mobile Telephones and Subassemblies From Japan; Preliminary Determination of Sales at Less Than Fair Value, 50 Fed.Reg. 24,554 (1985). The ITA explained the scope of the investigation as follows: The products covered by this investigation are cellular mobile telephones (CMTs), CMT transceivers, CMT control units, and subassemblies dedicated for use in CMTs. CMTs are radio-telephone equipment designed to operate in a cellular radio-telephone system, i.e., a system that permits mobile telephones to communicate with traditional land-line telephones via a base station, and that permits multiple simultaneous use of particular radio frequencies through the division of the system into independent cells, each of which has its own transceiving base station. Each CMT generally consists of (1) a transceiver, i.e., a box of electronic subassemblies which receives and transmits calls; and (2) a control unit, i.e., a handset and cradle resembling a modern telephone, which permits a motor-vehicle driver or passenger to dial, speak, and hear a call. They are designed to use motor vehicle power sources. Cellular transportable telephones, which are designed to use either motor vehicle power sources or, alternatively, portable power sources, are included in this investigation. Subassemblies are any completed or partially completed circuit boards, circuit modules and/or any packaged assemblage of electronic components, the value of which is equal to or greater than five dollars, and which are dedicated for use in CMT transceivers or control units. Examples of such subassemblies are circuit boards and/or modules containing any of the following circuitry or combinations thereof: audio processing, signal processing (logic), RF, IF, synthesizer, duplexer, power supply, power amplification, transmitter, and exciter. Id. at 24,554-55. The ITA also set forth its reasoning concerning the inclusion of subassemblies within the category of products investigated. The ITA stated: [t]he determination to include subassem-blies within the scope of the investigation was based on the need to prevent circumvention of any antidumping order on CMTs through the importation of major CMT subassemblies, and the Department’s broader conclusion that the investigation properly should include subas-semblies. In this regard, Motorola’s petition requested that we include ‘kits of components and subassemblies’ in the investigation. Two of the companies investigated export CMT subassemblies to the United States to related companies which subsequently perform some form of further manufacture or assembly before selling the completed CMTs to unrelated parties. If the investigation were limited to completed CMTs alone, none of these importations would be subject to an antidump-ing order, even if all of the subassem-blies were of Japanese origin and were being sold at less than fair value, and the complete CMT was ‘substantially’ of Japanese origin. Id. at 24,555. The ITA also published its positions on respondents’ arguments the ITA has no authority to include separately imported discrete subassemblies within the scope of the investigation. The ITA responded as follows: First, the Department [ITA] takes the position that CMT subassemblies are the same ‘class or kind’ of merchandise as complete CMTs. This determination is based on a consideration of the following factors: (1) General physical characteristics, (2) the expectations of the ultimate purchaser, (3) the ultimate use of the merchandise in question, and (4) the channels of trade in which the merchandise moves. Since the scope of this investigation only includes those subas-semblies that are ‘dedicated for use’ in complete CMTs, both the ultimate use and the ultimate purchaser of the CMT subassemblies are the same as for the complete CMTs. Thus, the second and the third criteria outlined above are met. Similarly, based on the evidence in the record, the Department determines that CMT subassemblies, as defined in this investigation and complete CMTs move in the same channel of trade. Indeed, this is the very reason the Department feels it necessary to include CMT subas-semblies within the scope of this investigation since otherwise any resulting order could easily be circumvented. With respect to the first criterion, the Department does not think that the fact that CMT subassemblies have, in some respect, different physical characteristics from complete CMTs should be controlling in this instance. As a result, the Department concludes that CMT subas-semblies which are dedicated for use in CMTs are within the same ‘class or kind’ of merchandise as complete CMTs. See, Antidumping Order; Cell Site Transceivers from Japan, 50 FR 307. Second, the Department’s view is that respondents are taking an unduly narrow reading of the petition and that the Department’s definition of scope is simply a clarification of what was set forth in the petition. Petitionerss [sic] definition of kits referred to collections of ‘key’ com-poenents, [sic] which we have taken to mean ‘major’ subassemblies. The whole purpose of including subassemblies in this investigation is to prevent evasion of the antidumping law. It would be illogical to make a distinction between those subassemblies that are shipped discretely in separate containers and those that are shipped together in one box. Limitations as to packaging would simply be an invitation to evade the antidumping law through changes in packaging. Third, whether or not Motorola’s petition explicitly covers discrete subassem-blies is not dispositive, since the Department has an inherent power to establish the parameters of the investigation so as to carry out its mandate to administer the law effectively and in accordance with its intent. See, 19 CFR 353.37(b). Finally, the Department has considered respondents’ (principally Matsushita’s and OKI’s) suggestion that the order be designed so as to exclude importations of subassemblies that are incorporated into CMTs by U.S. facilities that add more than a nominal value. It was proposed, for example, that each respondent be given an opportunity to make an affirmative showing that the value it adds in the United States to imported CMT subas-semblies is so substantial that it ought to be removed from the scope of the order. The Department feels that this approach is not feasible from an administrative standpoint, and that it would result in a discriminatory application of the anti-dumping law. Accordingly, the Department has included CMT subassemblies as defined above within the scope of the investigation. Id. at 24,555-56. The ITC instituted its injury investigation following the ITA’s affirmative preliminary determination. The ITC investigation concerned whether or not a domestic industry was materially injured, threatened with material injury, or the establishment of a domestic industry was materially retarded, by reason of less than fair value imports of CMTs and subassemblies from Japan. During this investigation, the ITC mailed out questionnaires to known domestic producers, known importers of CMTs and su-bassemblies, and purchasers of CMTs in the domestic market. The ITC also sent out investigators to visit the various facilities of those questioned and gathered information. On October 31, 1985, the ITA published its final affirmative determination on the CMTs. AD Final Determination, 50 Fed.Reg. 45,447 (1985). The ITA determined CMTs and subassemblies from Japan were being or were likely to be, sold in the U.S. at less than fair value pursuant to 19 U.S. C. § 1673d(a). The weighted average margin percentage of dumping found for the certain manufacturers/sellers/exporters were as follows: OKI, 9.72; Hitachi, 2.99; Mitsubishi, 87.83; NEC, 95.57; Matsushita, 106.60; and Toshiba, 0.0. Id. at 45,460. The ITA’s published notice reiterated a substantial amount of its reasoning from its preliminary determination notice published in December of 1984. The final determination covered, inter alia, CMT subas-semblies, the definition of which the ITA further clarified as follows: Subassemblies are any completed or partially completed circuit modules, the value of which is equal to or greater than five dollars, and which are dedicated exclusively for use in CMT transceivers or control units. The term ‘dedicated exclusively for use’ only encompasses those subassemblies that are specifically designed for use in CMTs, and could not used [sic], absent alteration, in a non-CMT device. The Department selected the five dollar value for defining the scope since this is a value that it has determined is equivalent to a ‘major’ subassembly. The Department feels that a dollar cut-off point is a more workable standard than a subjective determination such as whether a circuit module is ‘substantially complete.’ Examples of subas-semblies which may fall within this definition are circuit modules containing any of the following circuitry or combinations thereof: audio processing, signal processing (logic), RF, IF, synthesizer, duplexes power supply, power amplification, transmitter, and exciter. The presumption is that CMT subassemblies are covered by the order unless an importer can prove otherwise. An importer will have to file a declaration with the Customs Service to the effect that a particular CMT subassembly is not dedicated exclusively for use in CMTs or that the dollar value is less than $5, if he wishes it to be excluded from the order. Id. at 45,448. The period of the investigation was June 1, through November 30, 1984. Concerning the ITA's method of calculating United States price for OKI’s subas-semblies, the ITA stated in the determination: For OKI, we used exporter’s sales price (ESP) to represent the United States price because the merchandise was sold to unrelated purchasers after importation into the United States. For these sales, we made deductions, where appropriate, for foreign inland freight and handling charges, air or ocean freight, U.S. customs duties, U.S. inland freight and brokerage, indirect selling expenses incurred in the United States and other direct selling expenses incurred in the United States such as credit, advertising reserve, warranties and post-sale warehousing. In calculating the ESP for OKI, we also deducted the value added to the imported units through further manufacture prior to sale in the United States. Id. at 45,450 The ITA, along with its other calculations, calculated the United States price and foreign market value for Matsushita’s subassemblies from information in the petition as the best information available because Matsushita did not respond to the ITA antidumping questionnaires. Mitsubishi submitted comments to the ITA during the proceedings arguing, inter alia, the ITA should not use Mitsubishi home market sales as a basis for foreign market sales because they were inadequately small in relation to its third country sales. Mitsubishi supported its assertion with the following: 1. That MELCO’s [Mitsubishi] shipment of a small quantity of test samples to Nippon Telephone and Telegraph (NTT) were not sales made in the ordinary course of trade; 2. that the informal and unwritten agreement between MELCO and NTT could not constitute a sale; and 3. that NTT’s written purchase orders did not constitute ‘sales’ since MELCO did not ‘confirm’ these purchase order [sic], nor did title to the goods pass at that point, and therefore no sales occurred until MELCO actually delivered the CMTs. MELCO also argues that its home market sales of CMTs were not ‘such or similar’ to its U.S. sales within the meaning of 771(16)(C) of the Act. Id. at 45,451. The ITA responded to these arguments as set forth below: The [ITA] has determined that, based on 3 NTT purchase orders, MELCO [Mitsubishi] made sufficient commercial sales in the home market during the period of investigation so as to constitute a ‘viable’ home market within the meaning of 19 CFR 353.4. In reaching this determination the [ITA] did not have to determine whether the sale of test samples to NTT were sales made in the ordinary course of trade since its finding would be the same regardless. The [ITA] has determined that the date purchase orders were issued by NTT is the appropriate date for determining date of sale. As the [ITA] stated in its questionnaire in this case, ‘sales are dated from the point in the transaction where the basic terms of the contract are known and price to be paid is determined____ The date of sale is thus the date on which the agreed-upon price is confirmed.’ All of these conditions were met when NTT issued purchase orders to MELCO. Under the [ITA’s] definition, there is no requirement that title to the goods pass. Furthermore, the fact MELCO did not ‘confirm’ the purchase orders is irrelevant since it does not appear that there was any requirement or understanding that it would do so. The fact that subsequent shipping and invoicing by MELCO (absent confirmation) was done in accordance with the terms of each purchase order is further indication that these orders were an accurate confirmation of the parties’ understanding. Furthermore, the [ITA] has determined that MELCO’s home market sales of CMT transceivers were ‘such or similar’ to its U.S. CMT sales____ Thus, under the [ITA’s] analysis, MELCO’s home market CMT sales during the period of investigation were in excess of five percent of its third country sale and therefore its home market was ‘viable’ within the meaning of 19 CFR 353.4. Id. The ITA, following the above rationale, excluded from its calculation of U.S. price all Hitachi shipments made during the investigation because requirements contracts entered into by Hitachi were concluded pri- or to the investigation. The ITA explained its reasoning as follows: [The ITA has] carefully examined the terms of Hitachi’s requirements contract and have determined that the date was [sic] executed should be used as the appropriate date of sale for purposes of determining when a U.S. sale was made. This decision is based on three factors. First, the requirements contract was a binding agreement as of the date it was entered into____ Second, by the terms of the contract, the price of the CMT was agreed to irrevocably. Third, while the number of CMTs to be sold was not precisely set at the date the contract was executed, the quantity was established at that time in the sense that the customer agreed to purchase all of the CMTs that it may ‘require’ for a specified period of time. Thus, there is nothing more that the parties to the contract needed to agree to. The actual quantity purchased was to determined [sic] by factors outside their control, such as marked [sic] forces____ Id. at 45,456. On December 17,1985, the ITC published notice it had determined: [o]n the basis of the record developed in the subject investigation, ... [and] pursuant to section 735(b)(1) of the Tariff Act of 1930 (19 U.S.C. 1673(b)(1)) ... industries in the United States are materially injured by reason of imports from Japan of cellular mobile telephones and subassemblies thereof, provided for in items 685.28 and 685.32 of the Tariff Schedules of the United States, which have been found by the Department of Commerce to be sold in the United States at less than fair value (LTFV). Cellular Mobile Telephones and Subassemblies Thereof From Japan, 50 Fed.Reg. 51,467-68 (1985) (footnotes omitted). Vice Chairwoman Liebeler dissented in the determination. In its publication of the determination, the ITC noted the following: We recognize that there are many complexities in this investigation, including the relatively recent commencement of production of CMTs for the U.S. market, the rapid expansion of the U.S. market, the entry of new domestic producers throughout the period of investigation, and the assessment of the impact of imports on these particular industries. Although many of the indicators relevant to the condition of the domestic industries are positive and show improving trends, the domestic industries producing CMTs and subassemblies are showing financial losses and firms in the domestic industry have experienced declining employment or have chosen to cease production of CMTs and subassemblies. We have concluded that the LTFV sales of Japanese CMTs and subassemblies have had a negative impact on the performance of the domestic industry sufficient to find material injury by reason of such imports. Cellular Mobile Telephones and Subassemblies Thereof From Japan, USITC Pub. No. 1786 at 3 (Dec.1985). The ITC also stated in the publication its intended scope of investigation for the subject merchandise, as set forth below in pertinent part: The domestic industry in a title VII investigation consists of the ‘domestic producers as a whole of a like product, or those producers whose collective output of the like product constitutes a major proportion of the total domestic production of that product.’ Section 771(10) defines like product as ‘a product which is like or, in the absence of like, most similar in characteristics and uses with, the article subject to an investiga-tion____’ The imported merchandise which is the subject of this investigation are CMTs and subassemblies of CMTs. * Jfc Sfc 5¡C Sj« * In this investigation there are also imports of CMT subassemblies. These su-bassemblies ‘compartmentalize’ certain functions common to every CMT. The basic functions incorporated into one or more of the major subassemblies include: audio processing, signal processing (logic), frequency transmitting, frequency receiving, frequency comparing (synthesizing), duplexing (enabling sending and receiving at the same time), and power amplifying. We determine that subassemblies dedicated to the performance of each of the essential functions of a complete CMT constitute a separate like product. In addition to the obvious differences in terms of physical characteristics, various subassemblies are not substitutable or interchangeable because each has a specific function in the transceiver or control unit and each firm’s allocation of function between various subassemblies varies. Each of the subassemblies at issue is necessary to the function of the complete unit. These subassemblies, however, represent a prior stage of production, and thus the amount of further processing is extensive. Id. at 3-4, 6-8 (footnotes omitted). The ITC explained its findings with respect to domestic producers, domestic industries and related parties. The explanation is set forth, in pertinent part, as follows: Based upon our analysis of the factors set forth above, we determine that those firms producing transceivers or control units in the United States are domestic producers within the meaning of section 771(4)(A). In addition, we determine that certain Japanese firms that have commenced significant production-related activity in the United States are also domestic producers as of the time when a specific firm commenced those activities in the United States. We note, however, that based on our discussion of related parties that follows, these firms have been excluded from our analysis regarding injury to the domestic industry over the entire period of the investigation. With regard to the Japanese-owned firms that we found to be domestic producers, these firms achieved this status only recently. Thus, these firms have benefited from importation of either su-bassemblies or complete CMTs during the vast majority of the period of investigation. Although these firms represent a sizeable portion of domestic production during the brief time that they have been domestic producers, exclusion of these firms under the related parties provision does not adversely affect the Commission’s analysis of the condition of the domestic industries for the entire period of the investigation. Thus, we have determined to exclude from the domestic industries Japanese firms that have only recently commenced domestic production in the United States. Available data on the condition of these domestic industries exist only at the level of complete CMTs. Thus, we have applied section 771(4)(D) and assessed the condition of these industries in terms of data on complete CMTs. Id. at 9-12 (footnotes omitted). On December 9, 1985, the ITA published its antidumping duty order encompassing CMT subassemblies as defined in the ITA’s determination. 50 Fed.Reg. 51,724 (1985). During December 1985 and January 1986, the various petitioner-plaintiffs filed their individual actions challenging the ITA’s final affirmative determination, its anti-dumping order, and the ITC’s affirmative injury determination. On May 19, 1986, the Court consolidated the various actions for determination. On June 2, 1986, the Court granted Motorola’s motion for defendant-intervenor status. DISCUSSION Plaintiffs bring their actions pursuant to 19 U.S.C. § 1516a(a)(2)(B)(i), and § 1516a(a)(2)(A)(i)(II), and 28 U.S.C. § 1581(c) to challenge the ITA’s final affirmative antidumping duty determination (50 Fed.Reg. 45,447 (1985)), and antidump-ing duty order (50 Fed.Reg. 51,724 (1985)), and the ITC’s final affirmative injury determination (USITC Pub. No. 1786, 50 Fed. Reg. 51,467 (Dec.1985)). Plaintiffs’ challenge to the ITA and ITC determinations can be categorized into major issues under both the ITA and ITC determinations. Concerning the ITA determination, the first category covers the issue whether or not the ITA’s determination to include discrete CMT subassemblies within the scope of its investigation is supported by substantial evidence in the record and otherwise in accordance with law. The second and third categories can be characterized by the issues of whether or not the ITA’s inclusions of discrete CMT subassem-blies within the final affirmative LTFV an-tidumping duty determination and the final antidumping order, respectively, are supported by substantial evidence on the record and are otherwise in accordance with law. The fourth category covers whether or not there was substantial evidence on the record that imported discrete CMT subassemblies were sold at less than fair value, and the fifth category cover» whether or not the ITA’s treatment of the issuance of purchase orders as sales for the calculation of foreign market value for Mitsubishi’s merchandise was supported by substantial evidence on the record and was otherwise in accordance with law. Concerning the challenges to the ITC determination, the first category concerns the issue of whether or not the ITC erred in its analysis of material injury to the United States CMT subassembly industries by invoking the “product lines” provision of 19 U.S.C. § 1677(4)(D) in its investigation, but failing to obtain subassembly specific data. The second category is the issue of whether or not the ITC violated the statutory requirement 19 U.S.C. § 1673 by imposing duties on imports of discrete CMT subassemblies when the ITC allegedly found only injury with respect to imports of major subassemblies. Commerce is given broad discretion to administer the antidumping law. Upon review of an antidumping duty determination, the Court must sustain the ITA’s determination unless it is “unsupported by substantial evidence on the record, or otherwise not in accordance with law.” 19 U.S.C. § 1516a(b)(l)(B) (1982). The substantial evidence test restricts the scope of the Court’s review of the agency record. If the ITA’s interpretation is sufficiently reasonable, it will be sustained and it need not be the only reasonable interpretation. American Lamb Co. v. United States, 785 F.2d 994, 1001 (1986); Atcor, Inc. v. United States, - CIT -, -, 658 F.Supp. 295, 299 (1987). Substantial evidence is recognized as: ‘[M]ore than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ Substantial evidence ‘is something less than the weight of the evidence and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence.’ Matsushita Electric Industrial Co. v. United States, 750 F.2d 927, 933 (1984) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938) and quoting Consolo v. Federal Maritime Comm’n, 383 U.S. 607, 619-20, 86 S.Ct. 1018, 1026, 16 L.Ed.2d 131 (1966) respectively). The imposition of antidumping duties is governed by 19 U.S.C. § 1673 et seq. The general scheme of the antidumping law is set forth in § 1673 in pertinent part as follows: If— (1) the administering authority determines that a class or kind of foreign merchandise is being, or is likely to be, sold in the United States at less than its fair value, and (2) the Commission determines that— (A) an industry in the United States— (i) is materially injured, or (ii) is threatened with material injury, or (B) the establishment of an industry in the United States is materially retarded, by reason of imports of that merchandise or by reason of sales (or the likelihood of sales) of that merchandise for importation, then there shall be imposed upon such merchandise an antidumping duty, in addition to any other duty imposed, in an amount equal to the amount by which the foreign market value exceeds the United States price for the merchandise. 19 U.S.C.A. § 1673 (1985). Relevant to this action, the parties challenge both the ITA’s and the ITC’s determinations. The first issue raised under these challenges concerns the ITA’s determination to include discrete subassemblies within the scope of its investigation initiated upon the filing of Motorola’s petition. The procedure governing the petition stage of an investigation is set forth in 19 U.S.C. § 1673a. The portions of that statute relevant to the instant action are set forth as follows: (b) Initiation by Petition (1) Petition requirements. — An anti-dumping proceeding shall be commenced whenever an interested party ... files a petition with the administering authority, on behalf of an industry, which alleges the elements necessary for the imposition of the duty imposed by section 1673 of this title, and which is accompanied by information reasonably available to the petitioner supporting those allegations. The petition may be amended at such time, and upon such conditions, as the administering authority and the Commission may permit. (2) Simultaneous filing with Commission. — The petitioner shall file a copy of the petition with the Commission on the same day as it is filed with the administering authority. (c) Petition determination Within 20 days after the date on which a petition is filed under subsection (b) of this section, the administering authority shall— (1) determine whether the petition alleges the elements necessary for the imposition of a duty under section 1673 of this title and contains information reasonably available to the petitioner supporting the allegations. (2) if the determination is affirmative, commence an investigation to determine whether the class or kind of merchandise described in the petition is being, or is likely to be, sold in the United States at less than its fair value, and provide for the publication of notice of the determination in the Federal Register, and (3) if the determination is negative, dismiss the petition, terminate the proceeding, notify the petitioner in writing of the reasons for the determination, and provide for the publication of notice of the determination in the Federal Register. 19 U.S.C. § 1673a(b), (c) (1985). Plaintiffs argue the ITA, without authority, expanded the scope of the investigation initiated by Motorola entitled “In the Matter of Cellular Mobile Telephones and Su-bassemblies Thereof From Japan.” Specifically, plaintiffs claim the petition described only complete CMTs, CMT transceivers, and kits of major CMT subassemblies for use in final assembly of CMTs; the ITA exceeded its authority under 19 U.S.C. § 1673a(c)(2) by broadening the scope of the investigation beyond that “class or kind of merchandise described in the petition” by including the discrete subassemblies. Also challenged by plaintiffs is the determination by the ITA that the petition contained sufficient evidence of dumped sales to include the discrete CMT subassemblies. Defendant, supported by Motorola, contends the petition, on its face, clearly contained the petitioner’s intent to include discrete CMT subassemblies within the scope of the investigation and was supported by subsequent amendments from Motorola during the investigation. Defendant further argues the discrete CMT subassemblies are “the same class or kind” of merchandise described in the petition, and evidence submitted in the petition provides adequate evidence to include discrete CMT subassemblies in the investigation. It is clear from the record Motorola intended to include discrete CMT subassem-blies within the scope of the investigation. Although the precise language does not set forth “discrete” CMT subassemblies, the Court finds the evidence present that indicates Motorola intended discrete subassem-blies to be covered in the petition as the same class or kind of merchandise to be investigated for purposes of the antidump-ing investigation. Accordingly, the ITA’s determination was substantiated by evidence on the record and was in accordance with law. This Court has sustained the ITA’s treatment of related subassemblies as within the class or kind of merchandise described in a petition that lacked specificity as to those subassemblies when there exists no adequate information in regard to those related subassemblies to enable the preparation of the petition to be more specific. Kokusai Electric Co. Ltd. v. United States, - CIT -, -, 632 F.Supp. 23, 27 (1986). The Court has also recognized: [the] distinction] between the authority of the Customs Service to classify according to tariff classifications (19 U.S.C. § 1500) and the power of the agencies administering the antidumping law to determine a class or kind of merchandise. The determinations under the anti-dumping law may properly result in the creation of classes which do not correspond to classifications found in the tariff schedules or may define or modify a known classification in a manner not contemplated or desired by the Customs Service. Within the context of an antidumping proceeding the administering agency, at the proper time, can define the class in its terms. Royal Business Machines v. United States, 1 CIT 80, 87 n. 18, 507 F.Supp. 1007, 1014 n. 18 (1980), aff'd, 69 CCPA 61, 669 F.2d 692 (1982) (emphasis added). At the time of the filing of the petition, the CMT industry was very young. The petitioner’s explanation of its concern for dumping was couched in the context of a quickly developing new industry where precise technical language and available knowledge to describe the industry practices and tactical maneuvering of importing was scant or unavailable. Rec.Doc. 1 at 8. The term “kits of subassemblies” reflected this lack of knowledge where it apparently was not anticipated that other forms of importation of subassemblies could be performed. The Federal Communications Commission had announced only recently in 1982 the approval of CMTs for operation. Id. at 1-2. The petition stated the “class or kind of merchandise” to be covered by the petition was to include “all ... subas-semblies manufactured in Japan for use in final assembly of cellular mobile telephones.” Id. at 10. Motorola explicitly stated its concern and purpose in filing the petition was as follows: This petition also covers cellular mobile telephone transceivers sold alone and collections of cellular mobile telephone subassemblies (“kits”). The inclusion of mobile transceivers and kits in an anti-dumping order is essential to prevent the Japanese manufacturers from avoiding the impact of any final relief issued in this proceeding by simply importing mobile transceivers or kits containing most of the necessary subassem-blies or components into the United States for final assembly and testing. Wherever this Petition refers to cellular mobile telephones imported from Japan, those products should be understood to include also cellular mobile telephones made primarily using kits or mobile transceivers imported from Japan. Id. at 11-12 (emphasis added). Motorola buttressed this concern by referring to the plans of Japanese manufacturers “to circumvent the law by creating the facade of manufacturing [CMTs] in the United States; when in fact that ‘manufacturing’ uses kits ... that are made in Japan.” Id. at 6. Motorola also, in its petition, cited to an article describing tactical ploys the Japanese industry had used or planned to use in reaction to fear of a dumping charge by the U.S. Further concern was expressed in the petition by reference to alleged substantial margins of dumping from 50 to 100 per centum, and potential lost revenues of fifty million dollars. Motorola appeared to attempt to clarify the petition by subsequent submission to ITA during the investigation, as set forth in 19 U.S.C. § 1673a(b)(l). Although the petition appeared clear in its intent, these further submissions only reinforce the fact that discrete CMT subassemblies were within the scope of the investigation. Motorola repeatedly affirmed the ITA’s determination that the scope of investigation included subassemblies defined as follows: circuit modules and/or any other packaged functional assemblage of electronic components, dedicated for use in cellular mobile telephone transceivers or control units. Examples of such assemblies include audio processing modules, signal processing (logic) modules, RF modules, IF modules, synthesizers, duplexers, and power amplifiers. Rec.Doc. 5 at 4. This list of items included the discrete CMT subassemblies upon which this action rests. Motorola stated explicitly: “Whether such subassemblies are packaged together or discretely for shipment, they clearly fall within the parameters and intended scope of the petition.” Rec.Doc. 46 at 6. The petition also gave notice and a clear indication to respondents the nature of petitioner’s concern and the class or kind of merchandise upon which petitioner was requesting an investigation. Also important to note is Motorola’s classification explanation in its petition of those goods to be covered by the petition that could be identified in the Tariff Schedules as well as new products created beyond expectation of the tariff schedules including, “generally ... any kits ...or subassemblies for [CMTs], whatever the tariff classification.” Rec.Doc. 1 at 13 (emphasis added). Where the intent and purpose of the petitioner is clearly evinced in the petition, undergirded by a reasonably adequate description and classification of the goods to be investigated, and where recent technological advances render known and established classifications and descriptions inadequate to cover the intended merchandise of which the complaint is made, it is not unreasonable or contrary to law for the ITA to enlarge the scope of the investigation to account for these factors and to sufficiently provide coverage of merchandise intended to be covered in the petition. This is certainly no less true when the petitioner, within the statutory provisions of 19 U.S.C. § 1673a(b)(l) and upon allowance by the administering other agency, submits amendments and clarifying statements to the agency during the investigation concurring with the agency’s determination. The ITA has been vested with authority to administer the antidumping laws in accordance with the legislative intent. To this end, the ITA has a certain amount of discretion to expand the language of a petition to encompass the literal intent of the petition, not to the exclusion of other factors, but certainly, with the purpose in mind of preventing the intentional evasion or circumvention of the antidumping duty law. The ITA was not acting contrary to law or in a conflicting manner with substantial evidence on the record in looking to the express language and intent of the petition as expressed by petitioner. The petition sets forth the type of injury experienced by a broad definition of the merchandise suspected of causing the injury. Whether actually entered assembled, partially assembled, unassembled but together, unassembled but partially together, or totally separated, merchandise may not always be described in precise terms in a petition. It is the expressed intent, supported by substantial evidence on the record which emphasizes that intent, that counts as a substantial indication of what is encompassed within the scope of the investigation. See Diversified Products Corp. v. United States, 6 CIT 155, 159, 572 F.Supp. 883, 887 (1983) (“[T]his court implicitly recognized that the ITA has the authority not only to define the scope of an antidumping duty investigation but also to clarify the statement of its scope____”) The ITA has the authority to define and/or clarify what constitutes the subject merchandise to be investigated as set forth in the petition containing the intent of petitioner expressed in as specific and definite terms, descriptions, and language as reasonably expected of petitioner, taking into consideration such factors as the newness of the industry, the lack of available information due to such infancy, the shroud of secrecy a foreign industry might hang over its methods of importation, and the known tactics of foreign industries attempting to avoid a countervailing duty order. This scope of investigation may be clarified by the ITA dependen