Mitsubishi Heavy Industries, Ltd. v. United States

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