Mitsubishi Heavy Industries, Ltd. v. U.S.

• Decision Date: 08 August 2000
• Docket Number: Court No. 96-10-02292.,Slip. Op. 00-97.
• Citation: 112 F.Supp.2d 1170
• Parties: MITSUBISHI HEAVY INDUSTRIES, LTD., and Tokyo Kikai Seisakusho, Ltd., Plaintiffs, v. UNITED STATES, Defendant, and Goss Graphics, Inc., Defendant-Intervenor.
• Court: U.S. Court of International Trade

112 F.Supp.2d 1170

MITSUBISHI HEAVY INDUSTRIES, LTD., and Tokyo Kikai Seisakusho, Ltd., Plaintiffs, v. UNITED STATES, Defendant and Goss Graphics, Inc., Defendant-Intervenor.

Slip. Op. 00-97.

Court No. 96-10-02292.

United States Court of International Trade.

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.

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 Industries, Inc. 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. 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 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. § 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, 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 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 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 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, 95 S.Ct. 438, 42 L.Ed.2d 447 (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.

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