275 F.3d 1056 (Fed. Cir. 2001), 01-1017, Mitsubishi Heavy Industries v. United States

Docket Nº:01-1017
Citation:275 F.3d 1056
Party Name:Mitsubishi Heavy Industries v. United States
Case Date:December 28, 2001
Court:United States Courts of Appeals, Court of Appeals for the Federal Circuit

Page 1056

275 F.3d 1056 (Fed. Cir. 2001)



TOKYO KIKAI SEISAKUSHO, LTD., Plaintiff-Appellant,


UNITED STATES, Defendant-Appellee,


GOSS GRAPHICS SYSTEMS, INC., Defendant-Appellee.

United States Court of Appeals, Federal Circuit

December 28, 2001

United States Court of Appeals, for the Federal Circuit 01-1017

Appealed from: United States Court of International Trade, Judge Donald C. Pogue

Page 1057

Yoshihiro Saito, Perkins Coie LLP, of Washington, DC, argued for plaintiff-appellant Tokyo Kikai Seisakusho, Ltd. With him on the brief were Mark T. Wasden, and Alyssa Chumnanvech.

James H. Holl, III, Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, of Washington, DC, argued for defendant-appellee United States. With him on the brief were Stuart E. Schiffer, Acting Assistant Attorney General; David M. Cohen, Director; and Velta A. Melnbrencis, Assistant Director. Of counsel on the brief were John D. McInerney, Acting Chief Counsel; Berniece A. Browne, Senior Counsel; and Robert J. Heilferty, Senior Attorney, Office of Chief Counsel for Import Administration, Department of Commerce, of Washington, DC.

Page 1058

Charles Owen Verrill, Jr., Wiley, Rein & Fielding, of Washington, DC, for defendant-appellee Goss Graphic Systems, Inc. With him on the brief were Alan H. Price, and Timothy C. Brightbill.

Before MAYER, Chief Judge, NEWMAN and CLEVENGER, Circuit Judges.

CLEVENGER, Circuit Judge.

In the latest chapter in this long-running battle over the United States Department of Commerce's assessment of antidumping duties against Mitsubishi Heavy Industries ("MHI") and Tokyo Kikai Seisakusho ("TKS") for their United States sales of large newspaper printing presses ("LNPPs"), TKS appeals from the final judgment of the Court of International Trade affirming the dumping determination. On appeal, TKS contests the Department of Commerce's determination that Japanese market LNPPs are a foreign like product under 19 U.S.C. § 1677b(e)(2)(A). Because we conclude that the Department of Commerce's determination was supported by substantial evidence, and because TKS's allegations regarding the agency's statutory construction are not properly before us, we affirm.



This case involves large newspaper printing presses exported to the United States from Japan. Although all LNPPs have similar design and function, individual LNPPs are custom-made per the customer's specification. The companies provide their customers with a menu of various components that can be built into the machine, and the customer decides what components to order. As a result, individual orders for LNPPs can vary to a greater or lesser extent, depending on what components the customer chooses. Because Japanese and United States newspapers have somewhat different characteristics in terms of size, use of color, etc., the LNPPs used to produce them also have somewhat different components. Thus, every contract for sale of an LNPP contains different terms-including price terms-because the LNPPs themselves have different components from contract to contract.

Upon a petition by Rockwell Graphics Systems, Inc., a U.S. competitor now known as Goss Graphics Systems, Inc. ("Goss"), the Department of Commerce ("Commerce") launched an antidumping investigation of two manufacturers, MHI and TKS. In due course, Commerce issued its final antidumping determination finding sales at less than fair value and announcing a dumping margin of 56.28 percent for TKS, the appellant here. Large Newspaper Printing Presses and Components Thereof, Whether Assembled or Unassembled, From Japan, 61 Fed. Reg. 38,139 (Dep't Commerce, July 23, 1996) ("Japan Final"), amended by 61 Fed. Reg. 46,621 (Dep't Commerce, Sept. 4, 1996) (antidumping duty order and amendment to final determination). In Japan Final, Commerce used constructed value ("CV") to calculate the dumping margin, see Japan Final, 61 Fed. Reg. at 38,140, and it used home market (i.e., Japanese) LNPPs as the foreign like product in its determination of profit, which is one component of CV, see 19 U.S.C. § 1677b(e)(2) (1994), despite having earlier found that direct price-to-price comparisons with home market LNPPs were impracticable as a basis for normal value-a finding that led to its original decision to use CV as a basis for

Page 1059

normal value.1 See Japan Final, 61 Fed. Reg. at 38,146.

TKS and MHI appealed numerous aspects of Commerce's determination in Japan Final, including its foreign like product determination. See Mitsubishi Heavy Indus., Ltd. v. United States, 15 F.Supp.2d 807, 810, 828 (Ct. Int'l Trade 1988) (Mitsubishi I). TKS, in particular, argued that Commerce's reliance upon 19 U.S.C. § 1677b(e)(2)(A) to calculate profit was inappropriate because "the findings that led Commerce to rely on CV rather than home-market sales in calculating normal value constitute[d] evidence that no foreign like product exist[ed] in the home market." Mitsubishi I, 15 F.Supp.2d at 828-29. The profit calculation under § 1677b(e)(2)(A) relies upon sales of "a foreign like product." 19 U.S.C. § 1677b(e)(2)(A) (1994). Because Commerce did not describe adequately its profit calculation so as to permit judicial review, the Court of International Trade remanded the case to Commerce to explain upon which of the three statutory definitions of foreign like product it relied to make its profit calculation. Mitsubishi I, 15 F.Supp.2d at 829. In its remand determination, Commerce explained that it had relied upon the definition of foreign like product in 19 U.S.C. § 1677(16)(C), which requires, inter alia, that the foreign like product be merchandise that "the administering authority determines may reasonably be compared with" the exported merchandise subject to the investigation. 19 U.S.C. § 1677(16)(C)(iii) (1994).

TKS and MHI appealed the remand determination, and the Court of International Trade remanded again, this time because Commerce failed to explain the factual basis for its determination that the LNPPs sold in Japan and the United States could "reasonably be compared" as required by 19 U.S.C. § 1677(16)(C)(iii). Mitsubishi Heavy Indus., Ltd. v. United States, 54 F.Supp.2d 1183, 1197 (Ct. Int'l Trade 1999) (Mitsubishi II). The Court of International Trade was troubled because in its first remand determination, Commerce made statements that made it appear that it had previously conducted a difmer analysis2 and concluded that the home market and export LNPPs could not reasonably be compared. See id. at 1197. In its second remand determination, Commerce clarified that it had not conducted a difmer analysis. Second Remand Determination at 2-3. In addition, Commerce explained the factual basis for its finding that the home-market LNPPs could "reasonably be compared" with their United States counterparts, which included the common use to which the products are put (i.e., printing

Page 1060

newspapers) and TKS's and MHI's responses to detailed questionnaires showing that the Japanese and United States LNPPs share the same set of detailed press characteristics. Id. at 11-12.

Based on Commerce's explanation of the factual basis underlying its comparability determination, the Court of International Trade affirmed the dumping determination. Mitsubishi Heavy Indus., Ltd. v. United States, 97 F.Supp.2d 1203, 1209 (Ct. Int'l Trade 2000) (Mitsubishi III). The court denied TKS's motion for reconsideration, Mitsubishi Heavy Indus., Ltd. v. United States, 112 F.Supp.2d 1170, 1175 (Ct. Int'l Trade 2000) (Mitsubishi IV), and this appeal by TKS followed. We exercise jurisdiction over this appeal from a final decision of the United States Court of International Trade pursuant to 28 U.S.C. § 1295(a)(5).



We review a decision of the Court of International Trade evaluating an antidumping determination by Commerce by reapplying the statutory standard of review that the Court of International Trade applied in reviewing the administrative record. Micron Tech., Inc. v. United States, 117 F.3d 1386, 1393 (Fed. Cir. 1997). We will uphold Commerce'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)(1)(B)(i) (1994); see Micron Tech., 117 F.3d at 1393.

On appeal, TKS primarily argues that Commerce's determination that home and United States market LNPPs may reasonably be compared is not supported by substantial evidence. We note that in pursuing this argument, TKS has chosen a course with a high barrier to reversal. The Supreme Court has defined substantial evidence as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. NLRB, 340 U.S. 474, 477 (1951) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). The conclusion reached by Commerce need not be the only one possible from the record, for "[e]ven if it is possible to draw two inconsistent conclusions from evidence in the record, such a possibility does not prevent Commerce's determination from being supported by substantial evidence." Am. Silicon Techs. v. United States, 261 F.3d 1371, 1376 (Fed. Cir. 2001); see also Consolo v. Fed. Maritime Comm'n, 383 U.S. 607, 620 (1966). After reviewing the record, we conclude that substantial evidence supports Commerce's determination that home-market LNPPs are a foreign like product.

In its second remand decision, Commerce clarified the evidence underlying its decision to use home-market LNPPs as the foreign like product, explaining 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...

To continue reading