Slip Op. 00-97
UNITED STATES COURT OF INTERNATIONAL TRADE
MITSUBISHI HEAVY INDUSTRIES, LTD.,
and
TOKYO KIKAI SEISAKUSHO, LTD., BEFORE: Pogue, Judge
Plaintiffs, Consol. Court No. 96-10-
02292
v.
(Japan)
UNITED STATES,
Defendant,
and
GOSS GRAPHICS, INC.,
Defendant-Intervenor.
[Plaintiff’s motion for reconsideration denied.]
Decided: August 8, 2000
Steptoe & Johnson LLP (Anthony J. LaRocca, Richard O. Cunningham,
Eric C. Emerson, Gregory S. McCue) for Plaintiff Mitsubishi Heavy
Industries, Ltd.; Perkins Coie LLP (Yoshihiro Saito, Mark T.
Wadsen), for Plaintiff Tokyo Kikai Seisakusho, Ltd.
David W. Ogden, Assistant Attorney General, David M. Cohen,
Director, Commercial Litigation Branch, Velta A. Melnbrencis,
Assistant Director, Commercial Litigation Branch, James H. Holl
III, Attorney, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice; Robert J. Heilferty, Senior Attorney, Office
of the Chief Counsel for Import Administration, U.S. Department of
Commerce, for Defendant.
Wiley, Rein & Fielding (Charles Owen Verrill, Jr., Alan H. Price,
John R. Shane, Timothy C. Brightbill) for Defendant-Intervenor.
Consol. Court No. 96-10-02292 Page 2
MEMORANDUM OPINION AND ORDER
Pogue, Judge: Pursuant to USCIT Rule 59, plaintiff Tokyo Kikai
Seisakusho, Ltd. ("TKS") moves this Court to reconsider its
decision in Mitsubishi Heavy Industries, Ltd. v. United States, 24
CIT , 97 F. Supp. 2d 1203 (2000)("Mitsubishi III"), affirming
the U.S. Department of Commerce’s ("Commerce") second remand
determination in connection with its antidumping duty determination
in Large Newspaper Printing Presses and Components Thereof, Whether
Assembled or Unassembled, From Japan, 61 Fed. Reg. 38,139 (Dep’t
Commerce, July 23, 1996)(final determ.)("Japan Final"), amended by,
61 Fed. Reg. 46,621 (Dep’t Commerce, Sept. 4, 1996)(antidumping
duty order and amend. to final determ.).
On June 23, 1998, this Court remanded certain aspects of
Commerce’s determination in Japan Final, including the issue TKS
here asks us to reconsider: Commerce’s "foreign like product"
determination under 19 U.S.C. § 1677(16). See Mitsubishi Heavy
Indus., Ltd. v. United States, 22 CIT , 15 F. Supp. 2d 807
(1998)("Mitsubishi I"). Because Commerce again did not adequately
explain the basis of its foreign like product determination on
remand, we remanded the issue a second time to Commerce for further
explanation or reconsideration. See Mitsubishi Heavy Indus., Ltd.
Consol. Court No. 96-10-02292 Page 3
v. United States, 23 CIT , , 54 F. Supp. 2d 1183, 1197-98
(1999)("Mitsubishi II"). Finally, after reviewing Commerce’s
explanation of its foreign like product determination in its second
remand determination, we affirmed the determination as supported by
substantial evidence. See Mitsubishi III, 24 CIT at , 97 F.
Supp. 2d at 1209.
Now, however, TKS asks this Court to reconsider its decision
in Mitsubishi III. TKS argues that this Court has "misapprehended
[Commerce’s] position regarding the basis for its ‘foreign like
product’ finding[,]" TKS’s Mot. to Alter or Reconsider J. at 6,
and, in doing so, has improperly substituted its own judgment in
place of Commerce’s, see id. at 13.
Motions for Reconsideration
The grant or denial of a motion for reconsideration under
USCIT Rule 59(a) lies within the sound discretion of the court.
See Asociacion Colombiana de Exportadores de Flores v. United
States, 22 CIT , , 19 F. Supp. 2d 1116, 1118 (1998)(citing
St. Paul Fire & Marine Ins. Co. v. United States, 16 CIT 984, 984,
807 F. Supp. 792, 793 (1992), aff’d, 16 F.3d 420 (Fed. Cir. 1993);
Sharp Elecs. Corp. v. United States, 14 CIT 1, 2, 729 F. Supp.
1354, 1355 (1990)). "The purpose of a rehearing is not to
relitigate the case but, rather, to rectify a fundamental or
Consol. Court No. 96-10-02292 Page 4
significant flaw in the original proceeding." Id. (citing Arthur
J. Humphreys, Inc. v. United States, 15 CIT 427, 427, 771 F. Supp.
1239, 1241 (1991), aff’d and adopted, 973 F.2d 1554 (Fed. Cir.
1992)). "[A] court’s previous decision will not be disturbed
unless it is ‘manifestly inadequate.’" Id. (quoting St. Paul, 16
CIT at 984, 807 F. Supp. at 793).1
Discussion
In Japan Final, Commerce did not explain which of the three
statutory foreign like product definitions2 under 19 U.S.C. §
1
TKS fashions its motion for reconsideration as a "motion to
alter or amend judgment" under USCIT Rule 59(e). Traditionally,
however, this court has entertained motions for reconsideration
as motions made pursuant to USCIT Rule 59(a). See, e.g., NEC
Corp. v. Dep’t of Commerce, 24 CIT , , 86 F. Supp. 2d 1281,
1282 (2000); Asociacion, 22 CIT at , 19 F. Supp. 2d at 1118;
Union Camp Corp. v. United States, 21 CIT 371, 371-72, 963 F.
Supp. 1212, 1212-13 (1997); St. Paul, 16 CIT at 984, 807 F. Supp.
at 793. But see Apple Computer, Inc. v. United States, 14 CIT
719, 720, 749 F. Supp. 1142, 1144 (1990)(treating a motion to
alter or amend judgment under USCIT Rule 59(e) as a motion for
reconsideration). At any rate, this court’s precedent dealing
with USCIT Rule 59(a) sets out the proper test for determining
whether a motion for reconsideration should be granted.
Moreover, the treatment of TKS’s motion as arising under USCIT
Rule 59(a) does not place TKS at any procedural disadvantage.
See Fed. R. App. P. 4(a)(4)(A)(treating the motions to alter or
amend judgment and motions for rehearing under the Fed. R. Civ.
P. as the same for purposes of the deadline for filing an
appeal).
2
The statute defines "foreign like product" as,
[M]erchandise in the first of the following categories
in respect of which a determination . . . can be
Consol. Court No. 96-10-02292 Page 5
1677(16)(1994) it relied upon in classifying large newspaper
printing presses ("LNPPs") sold in Japan as foreign like product;
therefore, we remanded this issue for Commerce’s reconsideration.
See Mitsubishi I, 22 CIT at , 15 F. Supp. 2d at 829. In its
first remand determination of December 21, 1998, Commerce explained
that it had relied upon the definition of foreign like product at
§ 1677(16)(C). See First Remand Determ. at 17. Commerce did not,
satisfactorily made:
(A) The subject merchandise and other merchandise which
is identical in physical characteristics with, and was
produced in the same country by the same person as,
that merchandise.
(B) Merchandise--
(i) produced in the same country and by the same person
as the subject merchandise,
(ii) like that merchandise in component material or
materials and in the purposes for which used, and
(iii) approximately equal in commercial value to that
merchandise.
(C) Merchandise--B
(i) produced in the same country and by the same person
and of the same general class or kind as the
merchandise which is the subject of the investigation,
(ii) like that merchandise in the purposes for which
used, and
(iii) which the administering authority determines may
reasonably be compared with that merchandise.
19 U.S.C. § 1677(16)(1994).
Consol. Court No. 96-10-02292 Page 6
however, explain the factual basis for its determination that the
LNPPs sold in Japan and the United States could "reasonably be
compared" under 19 U.S.C. § 1677(16)(C)(iii). See Mitsubishi II,
23 CIT at , 54 F. Supp. 2d at 1197.
Instead, in its first remand determination, Commerce referred
to its twenty percent "difmer" guideline. Under the difmer
guideline, if the difmer adjustment to normal value, see 19 U.S.C.
§ 1677b(a)(6)(C)(ii), exceeds twenty percent, Commerce will not
make a finding that the home-market product is reasonably
comparable to the exported good, unless it can explain how the
comparison is nevertheless reasonable. See Mitsubishi III, 24 CIT
at , 97 F. Supp. 2d at 1205-06 (citing Policy Bulletin 92.2
(July 29, 1992)). Based on Commerce’s remand discussion, it
appeared to the Court that Commerce had found in its investigation
of Japanese LNPPs that the difmer adjustment exceeded the twenty
percent threshold. See id. at , 97 F. Supp. 2d at 1206.
Therefore, because Commerce’s first remand determination did not
explain the factual basis for its decision that the Japanese and
U.S. LNPPs were nevertheless reasonably comparable, we remanded for
a second time. See id.
In its second remand determination, Commerce clarified that it
did not conduct a difmer analysis. See id. at , 97 F. Supp. 2d
Consol. Court No. 96-10-02292 Page 7
at 1207 (citing Second Remand Determ. at 1). "Because Commerce did
not in fact find that the difmer adjustment exceeded twenty
percent, Commerce did not make a presumptive finding that the
Japanese and U.S. LNPPs were not reasonably comparable." Id. In
addition, Commerce finally explained the factual basis for its
determination that the home-market and U.S. LNPPs could "reasonably
be compared" under § 1677(16)(C)(iii), basing its finding on record
evidence that the home-market and U.S. products shared numerous
detailed product characteristics. See id. at , 97 F. Supp. 2d
at 1208. Because the factual basis for Commerce’s determination
was supported by substantial evidence, this Court sustained
Commerce’s second remand determination. See id. at , 97 F.
Supp. 2d at 1209.
Moving for reconsideration, TKS now argues that the Court
"misapprehended [Commerce’s] position regarding the basis for its
‘foreign like product’ finding." TKS’s Mot. to Alter or Reconsider
J. at 6. According to TKS, Commerce referred to shared physical
characteristics simply as collateral support for the true basis of
its decision. See id. TKS maintains that the true basis for
Commerce’s foreign like product finding was its contention that the
term "may reasonably be compared" under § 1677(16)(C)(iii) should
be flexibly interpreted depending on the statutory context within
Consol. Court No. 96-10-02292 Page 8
which the "foreign like product" definition is being applied. See
id. at 6-7. "Thus," TKS continues, "by asserting that the phrase
‘may reasonably be compared’ should be interpreted flexibly,
[Commerce] is essentially asserting that the term ‘foreign like
product’ has different meanings, depending on the statutory context
to which it is applied." Id. at 7.
Nevertheless, despite TKS’s arguments, we remain convinced
that the evidence of shared product characteristics served as the
primary basis for Commerce’s reasonable comparability finding. In
Mitsubishi II, we made it clear that Commerce needed to explain the
basis for its finding of reasonable comparability. See 23 CIT at
, 54 F. Supp. 2d at 1197-98. It is not accurate, however, to
assert that Commerce based its conclusion that the Japanese and
U.S. LNPPs may reasonably be compared on its argument that the
"reasonably comparable" prong of § 1677(16)(C)(iii) may be flexibly
interpreted. Rather, in arguing that the phrase "may reasonably be
compared" of § 1677(16)(C)(iii) should be construed within the
statutory context to which it is being applied, Commerce was merely
explaining its legal interpretation of the term. Commerce’s legal
interpretation, however, did not answer whether the Japanese and
U.S. LNPPs were reasonably comparable. Instead, Commerce’s shared-
product-characteristic explanation provided the only factual basis
Consol. Court No. 96-10-02292 Page 9
for its determination. Therefore, we concluded that the basis for
Commerce’s reasonable comparability finding was its reliance on the
evidence of shared product characteristics. See Bowman Transp.
Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 286
(1974)(The Court will "uphold a decision of less than ideal clarity
if the agency’s path may reasonably be discerned.").
We recognize that Commerce dedicated a good portion of its
second remand determination to explaining its flexible construction
of § 1677(16)(C)(iii)’s "may reasonably be compared" requirement.
See Second Remand Determ. at 5-9. Nevertheless, it was apparent
that, in including this discussion, Commerce was responding to our
focus on the difmer adjustment in Mitsubishi II, 23 CIT at , 54
F. Supp. 2d at 1195-98. In its second remand determination,
Commerce was in essence explaining that the twenty percent difmer
guideline was not relevant to the CV profit calculation under 19
U.S.C. § 1677b(e)(2)(A). As we stated in Mitsubishi III, however,
"we recognize[d] that Commerce’s practice [was] to apply the twenty
percent difmer guideline solely to determine whether price-to-price
comparisons [(i.e., normal value to U.S. price)] [were] feasible."
24 CIT at , 97 F. Supp. 2d at 1207.
Nevertheless, under Commerce’s difmer practice, a finding that
the difmer adjustment to normal value exceeds twenty percent is a
Consol. Court No. 96-10-02292 Page 10
presumptive finding that the products may not reasonably be
compared under § 1677(16)(C)(iii). See Policy Bulletin 92.2 (July
29, 1992). Based on Commerce’s discussion of the difmer guideline
in its first remand determination, it appeared that Commerce had
found that the difmer adjustment exceeded the twenty percent
threshold; therefore, it appeared that Commerce had made a
presumptive finding that the Japanese and U.S. LNPPs were not
reasonably comparable. See Mitsubishi III, 24 CIT at , 97 F.
Supp. 2d at 1206. Thus, in Mitsubishi II, we were concerned that,
for the purpose of determining whether it was feasible to compare
the home-market price (normal value) to the U.S. price in
determining the dumping margin, Commerce had found that no foreign
like product existed. Such a finding, then, would have been
inconsistent with Commerce’s calculation of CV profit under §
1677b(e)(2)(A) based on sales of a foreign like product.
As Commerce clarified in its second remand determination,
however, it did not in fact conduct a difmer analysis in its
investigation of Japanese LNPPs. See Second Remand Determ. at 1.
Accordingly, Commerce did not make a finding that no foreign like
product was available, and its decision to base CV profit on sales
of a foreign like product under § 1677b(e)(2)(A) was not
necessarily inconsistent with its decision not to make price-to-
Consol. Court No. 96-10-02292 Page 11
price comparisons.
Thus, in Mitsubishi III, we declined "to decide whether it
[was] permissible to interpret the language ‘may reasonably be
compared’ differently depending on which specific provision of the
antidumping statute is implicated." 24 CIT at , 97 F. Supp. 2d
at 1207. While we expressed concern with such an interpretation of
§ 1677(16)(C)(iii), it was apparent that Commerce had not in fact
applied the reasonable comparability prong inconsistently in its
investigation of Japanese LNPPs. Therefore, the issue was not
directly before us.
TKS further asserts, however, that Commerce’s reference to
shared product characteristics for its finding of reasonable
comparability was limited to the CV profit context. See TKS’s Mot.
to Alter or Reconsider J. at 10. According to TKS, "[i]n any other
statutory context, such as home market viability or price-to-price
comparisons, [Commerce] would provide a different rationale for its
foreign like product finding . . . ." Id. Because "[t]he Court
has not stated whether [Commerce’s] determination is appropriate
within the limited context of calculating CV profit[,]" TKS
continues, "the Court has determined that shared physical
characteristics support a foreign like product finding in all
statutory contexts[,]" thereby misconstruing Commerce’s position.
Consol. Court No. 96-10-02292 Page 12
Id. at 11. "As a result," TKS concludes, "the Court should
reconsider its judgment and instead decide whether [Commerce’s]
flexible interpretation of ‘foreign like product’ depending on the
statutory context is" permissible, because that issue is squarely
before the Court. Id.
TKS bases its argument--that Commerce’s reference to shared
product characteristics for its finding of reasonable comparability
was limited to the CV profit context--on an isolated sentence from
Commerce’s second remand determination:
Finally, for purposes of calculating CV profit, we
determine that TKS’s home market LNPP may reasonably be
compared to its sales of LNPP in the United States based
on evidence that LNPP in both markets share detailed
product characteristics, even if the custom-made
combination of precise specifications makes price-to-
price comparisons impracticable.
Second Remand Determ. at 2 (emphasis added).
It is clear to the Court, however, that, in this case, the
shared product characteristics formed the basis of Commerce’s
foreign like product determination in all statutory contexts.
Commerce never asserted that a foreign like product of Japanese
LNPPs only existed in the context of the CV profit calculation.
Rather, Commerce determined that a foreign like product existed
regardless of statutory context. See Japan Final at 38,146-147.
For example, in declining to compare normal value to the U.S. price
Consol. Court No. 96-10-02292 Page 13
in calculating the dumping margin, Commerce stated, "The fact that
it was not practicable to compare specific models of LNPP is not
the same as saying that home market LNPP may not reasonably be
compared with the subject merchandise (LNPP)." First Remand
Determ. at 17. Thus, Commerce never found that Japanese and U.S.
LNPPs were reasonably comparable under § 1677(16)(C)(iii) in some
statutory contexts but not others. Because there was no indication
that Commerce had applied the reasonable comparability prong
inconsistently in this case, we appropriately declined to decide
whether Commerce’s flexible interpretation of "may reasonably be
compared" was permissible.
Having reviewed TKS’s arguments, we conclude that we did not
misapprehend Commerce’s position with regard to its foreign like
product determination. Accordingly, we did not substitute our own
judgment for that of Commerce’s foreign like product determination
in Mitsubishi III. TKS’s motion for reconsideration is denied. An
order will be entered accordingly.
Donald C. Pogue
Judge
Dated: August 8, 2000
New York, New York