Fujitsu v. United States

Slip Op. 99-11

United States Court of International Trade

FUJITSU LIMITED AND FUJITSU
AMERICA, INC.,
Plaintiffs,

v.
Before: Pogue, Judge
UNITED STATES,
Court No. 97-11-02021
Defendant,

and

CRAY RESEARCH, INC.,

Defendant-Intervenor.

[Final determination on domestic like product and standing
affirmed.]

Decided: January 27, 1999

Akin, Gump, Strauss, Hauer & Feld, L.L.P. (Warren E. Connelly and
James E. Mendenhall) for Plaintiffs.

Frank W. Hunger, Assistant Attorney General; David M. Cohen,
Director, Commercial Litigation Branch, Civil Division, Department
of Justice (Lucius B. Lau), Patrick V. Gallagher, Jr., Attorney,
Office of the Chief Counsel for Import Administration, U.S.
Department of Commerce, of Counsel, for Defendant.

Wilmer, Cutler & Pickering (John D. Greenwald, Ronald I. Meltzer,
Amber Cottle, and Juan Millan for Defendant-Intervenor.

OPINION

POGUE, Judge: Plaintiffs, Fujitsu Limited and Fujitsu

America, Inc. ("Fujitsu") move for judgment on the agency record

pursuant to U.S. CIT Rule 56.2 challenging the United States

Department of Commerce’s ("Commerce") "domestic like product"

determination and Commerce’s decision not to initiate a standing
Consol. Court No. 97-11-02021 Page 2

inquiry in its investigation of vector supercomputers from Japan.

See Initiation of Antidumping Duty Investigation: Vector

Supercomputers from Japan, 61 Fed. Reg. 43,527 (Dep’t. Commerce

Aug. 23, 1996)("Initiation Notice"). Plaintiffs contend that

Commerce’s domestic like product determination was erroneous, and

therefore, its finding of domestic industry support for an

antidumping investigation was fatally flawed.

Background

On July 29, 1996, domestic producer Cray Research, Inc.

("Cray") petitioned Commerce to investigate sales at less than fair

value of vector supercomputers, defined as "any computer with a

vector hardware unit as an integral part of any of its central

processing unit boards" from Japan. Antidumping Petition from Cray

Research, Inc., P.R. Doc. 1 at 8 (Jul. 29, 1996)("Petition")

(emphasis provided). Alleging differences between vector and non-

vector supercomputers in their performance, architecture,

production, and application, Cray limited the scope of its petition

to vector supercomputers. See id. at 8-15. Cray also defined the

"domestic like product" as vector supercomputers. See id. at 15.

Fujitsu challenged the petition, arguing that the domestic

like product of the investigation must include numerous other

supercomputers that are "like, or in the absence of like, most

similar in characteristics and uses" to vector supercomputers. See

August 14, 1996 Letter from Fujitsu, P.R. Doc. No. 9 at 1 (citing
Consol. Court No. 97-11-02021 Page 3

19 U.S.C. §1677(10)(1994)). Fujitsu claimed that vector and non-

vector supercomputers compete directly and share the same channels

of distribution and end use. See id. at 5-18. In addition,

Fujitsu maintained that customers perceive vector and non-vector

supercomputers as interchangeable, and that both vector and non-

vector supercomputers are similar in price and have common

manufacturing facilities. See id. at 18-23. Accordingly, Fujitsu

asked Commerce to poll the domestic producers of both vector and

non-vector supercomputers in determining whether industry support

exists for the investigation pursuant to 19 U.S.C. § 1673a(c)(1)(B)

& (c)(4)(D). See id. at 24-25. Cray submitted rebuttal comments

to Fujitsu’s arguments on August 16, 1996, see August 16, 1996

Letter from Cray, P.R. Doc. No. 10, and Fujitsu responded with a

second submission on August 19, 1996. See August 19, 1996 Letter

from Fujitsu, P.R. Doc. No. 12.

Commerce gave notice of the initiation of its investigation on

August 23, 1996, defining the scope to include "all vector

supercomputers[.] . . . A vector supercomputer is any computer

with a vector hardware unit as an integral part of its central

processing unit [’CPU’] boards." Initiation Notice at 43,528. The

scope definition in the Initiation Notice was based on the

petition. See id. Commerce concluded that the vector unit in the

CPU "identifies both the Japanese vector supercomputers that the

petitioner would have subject to the antidumping investigation and

the domestically-produced products that would define the domestic
Consol. Court No. 97-11-02021 Page 4

industry." Id. at 43,528-529.

Having decided to define the domestic like product as vector

supercomputers, Commerce addressed Fujitsu’s argument, explaining:

When properly analyzed, the evidence of record
demonstrates that there are clear dividing lines between
the characteristics and uses of the vector supercomputers
subject to investigation and the various other types of
supercomputers. Significantly, the vector supercomputer
has a different computer architecture than the non-vector
computer technologies and, consequently, it processes
information differently. The close physical proximity of
the vector hardware to the computer’s central processing
boards and high memory bandwidth (with limited
parallelism) contribute to the high speeds with which
vector supercomputers process information. These
differences give vector supercomputers different
performance characteristics than non-vector
supercomputers. For example, vector supercomputers are
more efficient dealing with linear and matrix algebra
equations than are non-vector supercomputers. Given the
states of the different supercomputer technologies today,
there are computer modeling applications where only the
vector supercomputers are used. For example, only vector
supercomputer bids met the technical requirements (which
involved weather forecasting and climate modeling
applications) in the University Corporation for
Atmospheric Research ("UCAR") procurement from which this
petition derives the export price.

Id. at 43,529.

Defining the domestic like product as vector supercomputers,

Commerce determined that there was industry support for the

petition because the petitioner, the only domestic producer of

vector supercomputers, accounted for more than fifty percent of the

total domestic production of vector supercomputers. See id. Thus,

Commerce proceeded with its investigation, ultimately determining

that Japanese vector supercomputers were being sold in the United
Consol. Court No. 97-11-02021 Page 5

States at less than fair value. See Notice of Final Determination

of Sales at Less Than Fair Value: Vector Supercomputers From Japan,

62 Fed. Reg. 45,623-624 (Dep’t Commerce Aug. 28, 1997).

Standard of Review

In reviewing a final determination, the Court must decide

whether Commerce’s determination is in accordance with law and

whether Commerce’s conclusions are supported by substantial

evidence on the record. Section 516A(b)(1)(B)(i) of the Tariff Act

of 1930, as amended, 19 U.S.C. § 1516a(b)(1)(B)(i)(1994).

Discussion

I. Scope and Industry Support

An antidumping investigation may be commenced in one of two

ways: 1) Commerce may self-initiate an investigation, see 19 U.S.C.

§ 1673a(a); 19 C.F.R. § 353.11 (1996); or 2) an interested party

may file a petition alleging the elements necessary for imposition

of an antidumping duty. See 19 U.S.C. § 1673a(b); 19 C.F.R. §

353.12 (1996). To initiate an investigation in response to a

petition, Commerce must "determine whether the petition alleges the

elements necessary for the imposition of a duty" and "determine if

the petition has been filed by or on behalf of the industry[,]"

i.e., whether the domestic industry supports the investigation. 19

U.S.C. § 1673a(c)(1)(A).

Before the Uruguay Round Agreements Act ("URAA") took effect,
Consol. Court No. 97-11-02021 Page 6

Commerce could presume industry support unless a petition was

actively opposed. See, e.g., NTN Bearing Corp. v. United States,

15 CIT 75, 79, 757 F. Supp. 1426, 1429 (1991), aff’d, 972 F.2d 1355

(Fed. Cir. 1992). Now, Commerce may not operate on the basis of

the presumption, but rather must establish that:

(i) the domestic producers or workers who support the
petition account for at least 25 percent of the total
production of the domestic like product, and

(ii) the domestic producers or workers who support the
petition account for more than 50 percent of the
production of the domestic like product produced by that
portion of the industry expressing support for or
opposition to the petition.

19 U.S.C. §1673a(c)(4)(A)(emphasis provided). This determination

must be concluded within twenty days of the filing of the

petition.1 19 U.S.C. § 1673a(c)(1)(A).

Nineteen U.S.C. § 1677(4)(A) defines "industry" as the

"producers as a whole of a domestic like product[.]" Therefore,

based on the language of 19 U.S.C. § 1673a(c)(4)(A), Commerce must

define the domestic like product in order to determine whether the

industry making the products included in the scope of the Petition

support the initiation of an investigation.

1
The URAA also provides that "[a]fter [Commerce] makes a
determination with respect to initiating an investigation, the
determination regarding industry support shall not be
reconsidered." 19 U.S.C. § 1673a(c)(4)(E). Prior to the URAA,
parties could challenge Commerce’s industry support determination
late in the investigation. See Tianjin Mach. Import & Export Corp.
v. United States, 16 CIT 931, 944, 806 F. Supp. 1008, 1021 (1992).
Consol. Court No. 97-11-02021 Page 7

II. Commerce’s Domestic Like Product Determination

Commerce based its initial definition of domestic like product

on Cray’s petition, according to its usual practice. See

Initiation Notice at 43,528. Commerce explained,

[Nineteen U.S.C. § 1677(10)] defines domestic like
product as "a product that is like, or in the absence of
like, most similar in characteristics and uses with, the
article subject to an investigation under this title."
Thus, the reference point from which the like product
analysis begins is "the article subject to an
investigation," i.e., the class or kind of merchandise to
be investigated, which normally will be the scope as
defined in the petition.

Id. See also Kern-Liebers USA, Inc. v. United States, 19 CIT 393,

396, 881 F. Supp. 618, 621 (1995)("[T]he agency generally exercises

[its] 'broad discretion to define and clarify the scope of an

antidumping investigation in a manner which reflects the intent of

the petition.'") (quoting Minebea Co., Ltd. v. United States, 16

CIT 20, 22, 782 F. Supp. 117, 120 (1992), aff'd on other grounds,

984 F.2d 1178 (Fed. Cir. 1993)). Commerce determined that "there

are clear dividing lines between the characteristics and uses of

the vector supercomputers subject to investigation and the various

other types of supercomputers." Initiation Notice at 43,529

(emphasis added). Therefore, Commerce concluded that the domestic

like product is limited to vector supercomputers.2 See id.

2
Having identified the domestic like product, Commerce did not
have to extend its investigation to identify a product "most
similar in characteristics and uses" to vector supercomputers. See
19 U.S.C. § 1677(10).
Consol. Court No. 97-11-02021 Page 8

Commerce based its standing determination on this definition. See

id.

Plaintiffs argue that Commerce’s determination is not

supported by substantial evidence. See Pl.’s Mem. in Supp. of Mot.

J. on the Agency R. at 22. Plaintiffs claim that "[t]he domestic

like product . . . must be defined based on the entire range of

characteristics and uses of the imported product, not just those

which Cray identified in its petition." Id. at 24.

Plaintiffs maintain that Commerce traditionally uses the

International Trade Commission ("Commission") test to define the

domestic like product. See id. at 23 (citing High Information

Content Flat Panel Displays and Display Glass Therefor from Japan,

56 Fed. Reg. 32,376, 32,381 (Dep’t Commerce July 16, 1991)(final

determination); Certain Textile Mill Products and Apparel From Sri

Lanka; Cotton Inspectors’ Gloves, 50 Fed. Reg. 9,826, 9,827 (Dep’t

Commerce Mar. 12, 1985)(final countervailing duty determination).3

Factors that the Commission typically considers in defining

domestic like product include (1) physical characteristics and

uses, (2) interchangeability of products, (3) channels of

distribution, (4) customer and producer perceptions of the

products, (5) the use of common manufacturing facilities and

personnel, and (6) price. See id. at n.42. Plaintiffs ask this

3
Although these are pre-URAA determinations, the "domestic
like product" definition has not been altered as a result of the
URAA. Therefore, the URAA does not mandate a change in Commerce’s
defining of the domestic like product.
Consol. Court No. 97-11-02021 Page 9

Court to utilize an adverse inference to establish that the

Commission factors not discussed by Commerce would not support its

like product determination. See id. at 23-24. Using the "entire

range" of the Commission factors, Plaintiffs claim, the like

product would include non-vector supercomputers. See id. at 24.

The Court finds that even if it accepts the Plaintiffs’

argument, there is substantial evidence in the record to support

Commerce’s finding.4 When examining Commerce’s factual

determinations, the Court must determine whether the record as a

whole contains "such relevant evidence as a reasonable mind might

accept as adequate to support [Commerce’s] conclusion."

Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938);

Universal Camera Corp. v. NLRB, 340 U.S. 474, 477 (1951)(quoted in

Matsushita Elec. Indus. Co. v. United States, 750 F.2d 927, 933

4
Moreover, the Court notes that in reviewing the Commission’s
like product findings for the purpose of investigating injury to
the domestic industry, it is not the province of the courts to
change the priority of the relevant like product factors or to
reweigh or judge the credibility of conflicting evidence. See
Iwatsu Elec. Co. v. United States, 15 CIT 44, 47, 758 F. Supp.
1506, 1509 (1991). "It is within the Commission’s discretion to
make reasonable interpretations of the evidence and to determine
the overall significance of any particular factor or piece of
evidence." Maine Potato Council v. United States, 9 CIT 293, 300,
613 F. Supp. 1237, 1244 (1985). Therefore, by analogy, for the
purpose of standing, it is within Commerce’s discretion to weigh
the priority of the relevant like product factors and determine
each factor’s significance. Cf. NTN Bearing Corp., 15 CIT at 80,
757 F. Supp. at 1430. Here, Commerce appropriately focused its
inquiry on characteristics and uses because the statute defines
domestic like product as a product that is like or "most similar in
characteristics and uses with" the subject merchandise. See Def.’s
Mem. in Opp’n to Pl.’s Mot. for J. on the Agency R. at 31 (citing
19 U.S.C. §1677(10)).
Consol. Court No. 97-11-02021 Page 10

(Fed. Cir. 1984)). For the purposes of Commerce’s like product

inquiry, the record consisted of Cray’s petition, Fujitsu’s two

August submissions, which included over 450 pages of articles

analyzing supercomputer systems, and Cray’s rebuttal comments.5

A. Characteristics

1. Physical Characteristics

With regard to physical characteristics, Commerce noted that

vector supercomputers have a different computer architecture than

non-vector supercomputers. See Initiation Notice at 43,529.

Substantial evidence supports this conclusion.

First, the Court notes that Fujitsu does not dispute that

vector hardware being integral to any of the computer’s CPU boards

is a characteristic limited to vector supercomputers. See Pl.’s

Mem. in Supp. of Mot. J. on the Agency R. at 27. In its Initiation

Notice, Commerce indicated that this was the key characteristic

identifying the domestic like product. See Initiation Notice at

43,528-529.

5
The Plaintiffs assert that Commerce failed to consider their
arguments or adequately review the voluminous documentary evidence
they submitted. See Pl.’s Mem. in Supp. of Mot. J. on the Agency
R. at 3, 21-22. Plaintiffs’ argument is unfounded, however,
because Commerce summarized Plaintiffs’ arguments in its Initiation
Notice. See Initiation Notice at 43,528. Moreover, absent some
showing to the contrary, Commerce is entitled to the presumption
that it considered the record evidence as a whole. Cf. Nat’l
Ass’n of Mirror Mfrs. v. United States, 12 CIT 771, 779, 696 F.
Supp. 642, 648 (1988)(holding that "the Commission is presumed to
have considered all of the evidence in the record.").
Consol. Court No. 97-11-02021 Page 11

Second, numerous reports included in Plaintiffs’ August 14,

1996 submission characterized vector supercomputer architecture as

particular to vector supercomputers. The Smaby Group report, for

example, not only characterized vector supercomputer architecture

as distinct, but listed Cray as its only domestic producer: "The

parallel/vector6 architecture is the most popular for high-end

scientific computing. . . . Machines in this class are today

manufactured by Cray Research (the overwhelmingly dominant vendor),

Fujitsu, NEC, Hitachi, and Cray Computer." August 14, 1996 Letter

from Fujitsu, P.R. Doc. 9, Exhibit 7 (Smaby Group, GLOBAL

COMPETITIVENESS OF JAPANESE SUPERCOMPUTERS at 8).

The International Data Corporation ("IDC") report stated, "We

expect the classical vector market to remain the central

computational platform throughout the rest of the decade, but with

decreasing demand outside of the installed base." Id., Exhibit 10

(IDC, HIGH PERFORMANCE SYSTEMS: 1995-1999 FORECAST SUMMARY at 5).

Finally, Larry Smarr, Director of the National Center for

Supercomputing Applications ("NCSA") testified before the House

Science Committee Basic Research Subcommittee that, "NCSA has

6
Smaby Group defined "parallel/vector" architecture as a
design combining several processors in a single system, but
including vector processors as an integral component. See August
14, 1996 Letter from Fujitsu, P.R. Doc. no. 9, Exhibit 7 (Smaby
Group, GLOBAL COMPETITIVENESS OF JAPANESE SUPERCOMPUTERS at 2). Therefore,
parallel/vector architecture falls within Commerce’s definition of
vector supercomputers, i.e., a "computer with a vector hardware
unit as an integral part of its central processing unit boards."
Initiation Notice at 43,528.
Consol. Court No. 97-11-02021 Page 12

worked with users to develop and migrate application codes through

three distinct phases of supercomputer architectures: shared memory

vector processors; massively parallel processors; and scalable

memory RISC processors." Id., Exhibit 3 (Hearings Regarding the

National Science Foundation Before the Subcommittee on Basic
Research of the House Committee on Science (Mar. 19,

1996)(statement of Larry L. Smarr, Director of NCSA at 2).

2. Performance Characteristics

The record also contains substantial evidence supporting

Commerce’s finding that vector supercomputers possess different

performance characteristics than non-vector supercomputers. See

Initiation Notice at 43,529. Again, numerous articles attached to

Plaintiff’s August 14, 1996 submission characterized vector

supercomputers as having different performance characteristics,

including the following passage from the Smaby Group report:

For the last twenty years, enterprise-level
supercomputers from all manufacturers have employed
vector processing to achieve very high calculation rates.
A conventional, or "scalar," processor gains speed by
reducing the time it takes to complete each instruction
in series. The vector processor (or pipeline) benefits
from the predictability of array operations. Memory
accesses and individual calculation steps are overlapped
for each element in the array, allowing each successive
calculation to be initiated very rapidly. This results
in much higher aggregate processing rates for
applications which make effective use of vectors.

August 14, 1996 Letter from Fujitsu, P.R. Doc No. 9, Exhibit 7

(Smaby Group, GLOBAL COMPETITIVENESS OF JAPANESE SUPERCOMPUTERS at 2).
Consol. Court No. 97-11-02021 Page 13

Bill Buzbee, the director of NCAR’s Scientific Computing

Division, compared the processing speeds of massively parallel

processors ("MPPs") and vector supercomputers as follows: "To

overcome the software disadvantage [of MPP systems], a 1,000-node

MPP machine would have to work at 40 GFLOPS [(billion floating

point operations per second)] four to eight times faster than

currently to make it as attractive as a 20-GFLOPS shared-memory

[vector] supercomputer of comparable price[.]" Id., Exhibit 12

(Gary H. Anthes, Research Lab Sizes Up Slew of Supercomputers,

COMPUTERWORLD, Aug. 1, 1994).

Finally, a September 8, 1995 excerpt from Science

distinguished vector processing from non-vector computer processing

as follows: "the vector computer derives its power from expensive,

custom-built processors that perform calculations simultaneously on

long strings of numbers--vectors--instead of adding, subtracting,

multiplying, and dividing numbers two at a time." Id., at Exhibit

12 (Robert Pool, Off-the-Shelf Chips Conquer the Heights of
Computing, SCIENCE, Sept. 8, 1995).
B. Uses

Finally, the record contains substantial evidence supporting

Commerce’s conclusion that certain applications are chiefly

performed by vector supercomputers. See Initiation Notice at

43,529. Numerous articles attached to Plaintiffs’ submissions to

Commerce corroborate Commerce’s finding. Although many of

Plaintiffs’ articles do indicate that vector supercomputers face
Consol. Court No. 97-11-02021 Page 14

increasing competition from non-vector supercomputers, they also

demonstrate that certain applications still demand vector

supercomputers alone.

For example, while noting the increasing competition vector

supercomputers face from parallel processing computers, a January

1996 article from BYTE cautioned,

But don’t abandon vector processing just yet. In certain
situations, a vector-processing system delivers better
performance than a parallel-processing system, especially
when dealing with complex simulations involving huge data
arrays. That’s because the average memory-access times
can be shorter with vector processing, even with a large
memory space. In contrast, a parallel-processing system
with lots of memory might have to wait quite a while for
data to move from one part of the system to another[.]

August 14, 1996 Letter from Fujitsu, P.R. Doc. 9, Exhibit 12 (Tom

Thompson, The World’s Fastest Computers, BYTE, January 1996).

Moreover, in Fujitsu’s August 19, 1996 letter, the Plaintiffs

note Cray’s intention to create a hybrid computer (incorporating

each of the three main architectures--MPP, symmetric

multiprocessors ("SMP"), and vector) as indication that there were

not clear dividing lines between the three. See August 19, 1996

Letter from Fujitsu, P.R. Doc. No. 12, at 4. To the contrary,

Robert Ewald, president of Cray, explained that the company

intended to create a hybrid supercomputer based on their

recognition that each architecture performs certain applications

better than the others. See August 14, Letter from Fujitsu, P.R.

Doc. No. 9, Exhibit 12 (Richard McCormack, Cray Research to Merge

Vector, SMP and MPP into One Architecture, HIGH PERFORMANCE COMPUTING
Consol. Court No. 97-11-02021 Page 15

AND COMMUNICATIONS WEEK, Feb. 9, 1995). In the article, Ewald

explained,

We have all three [architectures] because of our belief
that different applications would run best on all three
and we always believed it would be a transitory thing. .
. . In concept, if you looked at the parallel world today
as it exists, there are some large problems that really
will parallelize well. There are some that run best in
the vector world and there are smaller applications that
run best in the SMP world.

Id.

Finally, only bids that included vector supercomputers met the

technical requirements for weather modeling in the UCAR procurement

from which Commerce derived the export price. See Initiation

Notice at 43,529; see also Petition at Annex A (May 20, 1996 UCAR

Press Release).7

C. Other Considerations

Naturally, the process of determining whether one product is

7
Plaintiffs claim that "Cray purposefully failed to inform
[Commerce] that [Cray’s] initial and final bids to UCAR included
both vector and non-vector machines[,]" and asked the Court to take
judicial notice of this fact. Pl.’s Mem. in Supp. of Mot. J. on
the Agency R. at 19-20. That Cray may have included both vector
and non-vector supercomputers in its bid, however, is not material.
First, vector supercomputers are typically designed to include
scalar processors to enable them to handle computations with non-
vectorized data. See August 14, 1996 Letter from Fujitsu, P.R.
Doc. No. 9, Exhibit 7 (Smaby Group, GLOBAL COMPETITIVENESS OF JAPANESE
SUPERCOMPUTERS at 2). Moreover, what is material is that, although
UCAR considered both vector and non-vector supercomputers, the only
three bids UCAR deemed competitive featured vector systems. See
Pl.’s Mem. in Supp. of Mot. J. on the Agency R., Exhibit A (In the
Matter of Vector Supercomputers from Japan, hearing before the
International Trade Commission, Inv. No. 731-TA-750(F), Aug. 27,
1997).
Consol. Court No. 97-11-02021 Page 16

"like" another entails some line drawing. For purposes of

standing, Congress afforded Commerce the discretion to draw the

line. See 19 U.S.C. § 1673a(c)(1)(A)(ii); see also NTN Bearing

Corp., 15 CIT at 80, 757 F. Supp. at 1430 ("It is the function of

[Commerce] to determine standing[.]").8 Where, as here, Commerce’s

determination is supported by substantial evidence, the Court will

affirm.

Moreover, the Court notes the limited time frame within which

Commerce must make its determination. As noted, the statute

requires that Commerce determine whether "the petition has been

filed by or on behalf of the industry" within twenty days of its

filing. See 19 U.S.C. § 1673a(c)(1)(A). The Statement of

Administrative Action also indicates Congress’s intention under the

URAA to "streamline" the process of determining industry support

for a petition to resolve the matter "conclusively at the outset of

a proceeding[.]" See Statement of Administrative Action, H.R. Doc.

No. 103-316, 103d Cong., 2d Sess. (1994) at 861-62.9 Therefore, in

8
Although NTN Bearing was decided before the enactment of the
URAA, the statutory definition of "domestic like product" has not
changed. Therefore, the decision still has precedential value.
9
The Statement of Administrative Action represents "an
authoritative expression by the Administration concerning its views
regarding the interpretation and application of the Uruguay Round
agreements . . . ." H.R. Doc. No. 103-316, 103d Cong., 2d Sess. at
656 (1994). "[I]t is the expectation of the Congress that future
Administrations will observe and apply the interpretations and
commitments set out in this Statement." Id. (quoted in Delverde,
SrL v. United States, 21 CIT , , 989 F. Supp. 218, 229-30
n.18 (1997)).
Consol. Court No. 97-11-02021 Page 17

reviewing the standing determination, the Court is mindful of

Commerce’s statutory mandate to make an expedited finding. See

Matson Navigation Co., Inc. v. Federal Maritime Comm’n, 959 F.2d

1039, 1043 (D.C. Cir. 1992)(holding that, because Congress

"mandated strict time limits on the [Federal Maritime] Commission’s

decisionmaking process for general rate increases[,]" the agency

was entitled "to an extra portion of deference in the review of its

rate orders."); cf. Mitsubishi Heavy Industries, Ltd. v. United

States, 21 CIT , , 986 F. Supp. 1428, 1432 (1997)("Given the

time limits imposed on Commerce’s initiation decision . . . , the

Court finds that the procedures Commerce followed constituted a

reasonable application of the statute and therefore, that the scope

definition upon which it based its industry support determination

was in accordance with law.").

Here, Cray filed its petition on July 29, 1996. See

Initiation Notice at 43,528. The SAA provides that where,

[A] petition provides sufficient evidence that domestic
producers or workers accounting for more than fifty
percent of total domestic production of the domestic like
product expressly support the petition, Commerce will
determine, on the basis of evidence contained in the
petition, that the petition is filed ’by or on behalf of
the domestic industry.’

SAA at 862. Therefore, Congress specifically gave Commerce the

authority to make its standing determination on the basis of the

evidence contained in the petition alone. Interested parties,

however, may submit comments on the issue of industry support
Consol. Court No. 97-11-02021 Page 18

pursuant to 19 U.S.C. § 1673a(c)(4)(E). Here, Plaintiffs submitted

their initial comments on August 16, 1996--sixteen days after the

filing date--and additional comments on August 19, 1996--twenty-one

days after the filing date. See Initiation Notice at 43,528.

The Court recognizes that the "strict time frames within which

to work may require an agency to make its decision on a record more

slender than desired and may render acceptable an unusually terse

explanation of reasoning." Matson Navigation, 959 F.2d at 1043.

Here, Commerce had the full twenty days to review the petition and

was able to determine that the petition demonstrated sufficient

industry support on its face. Commerce then had a mere four days,

at most, to review Plaintiffs’ comments, yet Commerce did consider

them, finding that they were insufficient to warrant a different

conclusion. See Initiation Notice at 43,528-529.

That Fujitsu "can point to evidence of record which detracts

from . . . [Commerce’s] decision and can hypothesize a reasonable

basis for a contrary determination is neither surprising nor

persuasive."10 Matsushita Elec. Indus. Co. v. United States, 3

Fed. Cir. (T) 44, 54, 750 F.2d 927, 936 (1984). The Court must

determine whether the record contains "such relevant evidence as a

reasonable mind might accept as adequate to support [Commerce’s]

10
We emphasize that Fujitsu, the respondent to the underlying
investigation, alone has expressed opposition to the petition. The
Court notes that not a single domestic producer of supercomputers
has expressed opposition to the petition. Cf. Mitsubishi, 21 CIT
at , 986 F. Supp. at 1432.
conclusion." Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229

(1938). The possibility of drawing two inconsistent conclusions

from the evidence does not prevent [Commerce’s] finding from being

supported by substantial evidence. See Consolo v. Federal Maritime

Comm’n, 383 U.S. 607, 620 (1966)(citations omitted); see also

Shieldalloy Metallurgical Corp. v. United States, 21 CIT ,

, 975 F. Supp. 361, 364 (1997)("It is not the Court’s role . .

. to reweigh the evidence; rather the Court insures that Commerce’s

determinations are supported by substantial evidence.").

Conclusion

Commerce's domestic like product determination is supported by

substantial evidence and is in accordance with law. Therefore,

Commerce’s determination of industry support for the petition is

sustained, and this case is dismissed. Judgment will be entered

accordingly.

Donald C. Pogue, Judge

Dated: January 27, 1999
New York, New York