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Pages 1--32 from USTIC Slip Opinion 99-46
Page 1 2
MITSUBISHI HEAVY INDUSTRIES, LTD.
and
TOKYO KIKAI SEISAKUSHO, LTD.,
Plaintiffs,
v.
UNITED STATES,
Defendant,
and
GOSS GRAPHICS, INC.,
Defendant-Intervenor.

Slip Op. 99-46
UNITED STATES COURT OF INTERNATIONAL TRADE

BEFORE: POGUE, JUDGE

Consol. Court No. 96-10-02292
(Japan)

[Final results of Commerce's redetermination sustained in part and remanded in part.]
Decided: May 26, 1999
Steptoe & Johnson LLP (Anthony J. LaRocca , Richard O. Cunningham, Eric C. Emerson, Gregory S. McClure) for Plaintiff Mitsubishi Heavy
Industries, Ltd.; Perkins Coie LLP (Yoshihiro Saito, Mark T. Wasden) , for Plaintiff Tokyo Kikai Seisakusho, Ltd.

David W. Ogden, Acting Assistant Attorney General, Civil Division, U. S. Department of Justice; David M. Cohen, Director, Commercial
Litigation Branch, Civil Division, U. S. Department of Justice; Randi Rimerman Serota, 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 Defendants.
Wiley, Rein & Fielding (Charles Owen Verrill, Jr., Alan H. Price, John R. Shane, Leslie Johnson Pujo) for Defendant-Intervenor.
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1 In that proceeding, Plaintiffs Mitsubishi Heavy Industries,
Ltd. (" MHI") and Tokyo Kikai Seisakusho, Ltd. (" TKS"), respondents in the underlying investigation, and Plaintiff Goss

Graphic Systems, Inc. (" Goss"), petitioner in the underlying investigation, filed separate motions challenging various aspects
of Commerce's determination. The motions were consolidated. Moreover, the antidumping investigation of large newspaper
printing presses (" LNPPs") from Japan was conducted simultaneously with Commerce's investigation of sales of LNPPs
from Germany. Issues common to both investigations were discussed in Large Newspaper Printing Presses and Components
Thereof, Whether Assembled or Unassembled, From Germany, 61 Fed. Reg. 38,166 (Dep't Commerce, July 23, 1996)( final
determ.)(" Germany Final").

OPINION
POGUE, Judge:
On June 23, 1998, this Court remanded certain
aspects of the U. S. Department of Commerce's (" Commerce")
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"), as amended by Large Newspaper Printing Presses and
Components Thereof, Whether Assembled or Unassembled, From Japan,
61 Fed. Reg. 46,621 (Dep't Commerce, Sept. 4, 1996)( antidumping
duty order and amend. to final determ.). See Mitsubishi Heavy
Industries, Ltd. v. United States, 22 CIT , 15 F. Supp. 2d 807
(1998)(" Mitsubishi"). 1
Specifically, the Court directed Commerce: 1) to correct its
error in allocating Plaintiffs' indirect selling costs incurred in
Japan; 2) to explain its decision to adjust normal value for
imputed credit expenses; 3) to reevaluate its decision to treat
certain suppliers of MHI's as affiliated parties; 4) to reconsider
its decision not to treat a trading company and MHI as affiliated
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2 Commerce calculates an antidumping duty by comparing an
imported product's price in the United States to its normal value (" NV")( i. e., the price of comparable merchandise in the exporting

country). The dumping margin is the amount by which the normal value exceeds the U. S. price. See 19 U. S. C. 1673( 1994).
The United States price is calculated as either the "export price" (" EP") or the "constructed export price" (" CEP"). See 19
U. S. C. 1677a. Typically, Commerce uses EP when the foreign exporter sells directly to an unrelated U. S. purchaser. See 19
U. S. C. 1677a( a). Commerce uses CEP when the foreign exporter sells through a related party in the United States. See 19
U. S. C. 1677a( b). NV is the price of the merchandise in the producer's home
market or its export price to countries other than the United States. See 19 U. S. C. 1677b( a)( 1). Where Commerce cannot
compute the home-market price, Commerce may base NV on a constructed value (" CV"), see 19 U. S. C. 1677b( a)( 4), which is

parties; and 5) to reconsider its decision to treat LNPPs sold in
the home market as foreign like product. See id. at , 15 F.
Supp. 2d at 834.
The Commission issued its final remand determination (" Remand
Determ.") on December 21, 1998.

Standard of Review
The Court will uphold a Commerce determination in an
antidumping investigation unless it is "unsupported by substantial
evidence on the record, or otherwise not in accordance with law[.]"
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. Plaintiffs' Indirect Selling Expenses Incurred in Japan
In the underlying proceeding, Commerce determined the U. S.
price based on constructed export price (" CEP"). 2 The CEP
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calculated pursuant to 1677b( e).
3 "Indirect selling expenses are selling expenses that the
seller would incur regardless of whether particular sales were made but that reasonably may be attributed, in whole or in part,

to such sales (e. g., salesperson's salaries)." Antidumping Manual, Ch. 8 at 44.

4 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 . . . ." SAA at 656. "[ 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)).

provision requires Commerce to reduce the price at which the
subject merchandise is first sold to an unaffiliated customer in
the United States by the amount of selling expenses "incurred by or
for the account of the producer or exporter, or the affiliated
seller in the United States, in selling the subject merchandise .
. . ." 19 U. S. C. 1677a( d)( 1)( 1994). Indirect selling expenses
are a component of selling expenses. 3 See 19 U. S. C.
1677a( d)( 1)( D)( requiring Commerce to deduct from CEP any selling
expenses not deducted as commissions, direct selling expenses, or
selling expenses that the seller pays on behalf of the purchaser).
The statute limits CEP deductions to "expenses . . . associated
with economic activities occurring in the United States."
Statement of Administrative Action, H. R. Doc. No. 103-316, 103 rd
Cong., 2 nd Sess. (1994), reprinted in URUGUAY ROUND AGREEMENTS ACT,
LEGISLATIVE HISTORY, Vol. VI, at 823 (" SAA"). 4 This Court has held
that "[ e] xpenses incurred outside of the United States could still
be 'associated with' economic activities occurring in the United
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States." Mitsubishi, 22 CIT at , 15 F. Supp. 2d at 818.
Therefore, in the present matter, Commerce properly decided to
deduct indirect selling expenses incurred by the Plaintiffs in
their home market of Japan associated with their exports of LNPPs
to the United States. See id.
Based on the information reported by the Plaintiffs at
verification, however, Commerce was "unable . . . to quantify the
portion of the [Plaintiffs'] total indirect selling expenses
[incurred in Japan that] were associated with the U. S. sales."
Germany Final at 38,174. Therefore, Commerce derived a methodology
to accomplish the deduction as non-adverse facts available. See
id. Commerce multiplied the total indirect expenses incurred in
Japan by the ratio of all other CEP deductions made under 19 U. S. C.
1677a( d)( 1) to the contract price net of the total indirect
selling expenses incurred in Japan. See id.
Commerce subsequently concluded, however, that in applying
this methodology, Commerce inadvertently overstated the amount of
indirect selling expenses to be deducted from CEP. Specifically,
Commerce explained that the pool of indirect selling expenses
incurred in the home market and allocated to MHI's U. S. sales
included "various office and planning expenses . . . [that were]
not the type of expenses that ordinarily would be associated with
United States economic activity." Response Court's Apr. 21, 1998
Ord. Regarding Treatment Indirect Selling Expenses at 2. Because
Commerce's determination was based on a factual error, this Court
remanded the matter to Commerce to evaluate whether its allocation
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methodology either understated or overstated MHI's indirect selling
expenses and to correct the error. See Mitsubishi, 22 CIT at ,
15 F. Supp. 2d at 819.
On remand, Commerce "concluded that the ratio should [have
been] applied to a smaller pool of indirect selling expenses
incurred in Japan than [had been] used in the Final Determination."
Remand Determ. at 3. Specifically, Commerce removed the following
types of expenses incurred in Japan from the indirect selling
expense pool: salaries and related expenses, office expenses,
planning expenses, consumable stationary expenses, book and
printing expenses, insurance, employee education, and department,
section, and other charges. See id. Commerce concluded, "In the
absence of record evidence to the contrary, it would be unduly
punitive to presume that such expenses were incurred on the sale to
the unaffiliated customer in the United States." Id.
The SAA states that "[ CEP] is now calculated to be, as closely
as possible, a price corresponding to an export price between non-affiliated
exporters and importers." SAA at 823. MHI now argues
that Commerce's methodology is "arbitrary" because it does not
ensure that "indirect selling expenses consistent with an EP
transaction [will] not be deducted." Cmts. of Pl. MHI on Remand
Determ. at 3-4. MHI maintains that, while Commerce's methodology
may properly allocate a portion of the indirect selling expenses
incurred in Japan to the economic activities occurring in the
United States, "the objective of the allocation is to identify only
those expenses that are inconsistent with an EP transaction." Id.
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at 4. Because Commerce did not explain how its methodology
fulfilled this objective, MHI argues, its methodology should be
rejected. See id.
Regarding this matter, however, the Court has already held
that "[ 19 U. S. C. 1677a( d)( 1)] does not require . . . Commerce
[to] examine every potential CEP deduction to determine whether the
activity generating the expense would be inconsistent with an EP
transaction." Mitsubishi, 22 CIT at , 15 F. Supp. 2d at 818.
Under the statute, Commerce has the authority to deduct indirect
selling expenses that are associated with the sales of exports in
the United States from CEP, whether incurred in the United States
or the home market. See id.
Here, as noted, Commerce was able to confirm that certain of
the home-market indirect selling expenses were associated with U. S.
activity, but was unable to quantify the exact portion of such
expenses attributable to U. S. sales based on the information
reported. See Germany Final at 38,174. Therefore, as non-adverse
facts available, Commerce multiplied the total indirect selling
expenses incurred in Japan by the ratio of all other CEP deductions
made under 19 U. S. C. 1677a( d)( 1) to the contract price net of the
total indirect selling expenses incurred in Japan. See id.
Because it was reasonable, under the circumstances here, for
Commerce to assume that the percentage of the home-market indirect
selling expenses associated with U. S. economic activity would
correspond with the remaining 19 U. S. C. 1677a( d)( 1) CEP
deductions' percent share of the contract price, Commerce's
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methodology was in accordance with law.
In addition, both MHI and Goss argue that Commerce's
calculation of home-market indirect selling expenses was unreasoned
because the agency failed to articulate a standard for determining
which expenses should have been included in the pool of home-market
indirect selling expenses to which the ratio was applied. See
Cmts. of Pl. MHI on Remand Determ. at 4; Rebuttal of Goss to Cmts.
of MHI at 4.
The Court disagrees. Commerce reasonably interpreted the
statute as requiring it to deduct from CEP indirect selling
expenses that were associated with economic activities occurring in
the United States. See Mitsubishi, 22 CIT at , 15 F. Supp. 2d at
818; see also SAA at 823 ("[ CEP] will be calculated by reducing the
price of the first sale to an unaffiliated customer in the United
States by the amount of the [statutory] expenses . . . associated
with economic activities occurring in the United
States[.]")( emphasis added).
Therefore, the standard Commerce applied was self-evident:
Commerce excluded from the pool of indirect selling expenses
incurred in Japan those expenses that were not generally associated
with the sales of LNPP exports in the United States (i. e.,
salaries, office expenses, planning expenses, consumable stationary
expenses, book and printing expenses, insurance, employee
education, etc.). See Remand Determ. at 3.
In this regard, Commerce had to "'reason its way to a decision
without pretending that that decision reflected some degree of
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5 In our original decision, this Court also directed Commerce
to respond to TKS's argument that Commerce overstated its indirect selling expenses in the same way it overstated MHI's.

See Mitsubishi, 22 CIT at , 15 F. Supp. 2d at 819. Accordingly, Commerce reviewed the matter and determined that CEP
should not be reduced by the amount of TKS's indirect selling expenses incurred in Japan because Commerce found no record
evidence of indirect expenses based on U. S. economic activity for TKS. See Remand Determ. at 4 (citing TKS Home Market
Verification Report (Conf. Doc. 191)( May 14, 1996) at 16). Moreover, TKS agrees with Commerce's determination on remand not
to reduce CEP by the amount of indirect selling expenses incurred

rational perfection . . . .'" Mitsubishi, 22 CIT at , 15 F.
Supp. 2d at 831 (quoting Fishermen's Dock Co-op., Inc. v. Brown, 75
F. 3d 164, 173 (4 th Cir. 1996)). "'Where the agency's line-drawing
does not appear irrational and the [plaintiff] has not shown that
the consequences of the line-drawing are in any respect dire . . .
[the court] will leave that line-drawing to the agency's
discretion. '" Id. (quoting Leather Indus. of America, Inc. v.
E. P. A., 40 F. 3d 392, 409 (D. C. Cir. 1994)). In its remand
determination, Commerce stated, "In the absence of record evidence
to the contrary, it would be unduly punitive to presume that
[certain expenses]" were associated with economic activities
occurring in the United States. Remand Determ. at 3. Therefore,
based on the evidence before it, Commerce's decision on remand to
exclude certain expenses from the pool of home-market indirect
selling expenses was a permissible exercise of its discretion to
draw the lines in this case.
Because Commerce's methodology was in accordance with law, the
Court sustains Commerce's remand calculation of MHI's indirect
selling expenses incurred in Japan. 5
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in Japan. See Cmts. of TKS on Remand Determ. at 14. Because, based on the record, Commerce reasonably concluded that TKS
incurred no home-market indirect selling expenses associated with U. S. economic activity, the Court sustains Commerce's decision on
remand not to reduce CEP by the amount of such expenses.
6 According to the statute, a NV that is based on CV is
subject to the same adjustments as NV based on home-market or third-country sales. 19 U. S. C. 1677b( a)( 8). Commerce

describes the imputed credit adjustment as a circumstance of sale adjustment. See Germany Final at 38,187. The circumstance of
sale adjustment for imputed credit expenses adjusts for differences in the payment terms extended to customers in the
U. S. and home markets. See Engineered Process Gas Turbo-Compressor Systems From Japan, 62 Fed. Reg. 24,394, 24,407 (Dep't
Commerce, May 5, 1997)( final determ.). This Court has held that Commerce's decision to treat the imputed credit expense as a
circumstance of sale was reasonable. See Mitsubishi, 22 CIT at , 15 F. Supp. 2d at 821.

II. Home-Market Imputed Credit Expenses
The imputed credit expense represents the producer's
opportunity cost of extending credit to its customers. By allowing
the purchaser to make payment after the shipment date, the producer
forgoes the opportunity to earn interest on an immediate payment.
Thus, the imputed credit expense reflects the loss attributable to
the time value of money. Commerce's usual imputed credit
calculation is based only on the cost of financing receivables
between shipment date and payment date. See Mitsubishi, 22 CIT at
, 15 F. Supp. 2d at 820. In its final determination, Commerce
deducted the credit expenses imputed to U. S. sales from CEP and
deducted the credit expenses imputed to home-market sales from CV.
See Japan Final at 38,147. Commerce made the deduction from CV as
a circumstance of sale adjustment. See Remand Determ. at 5; see
also 19 U. S. C. 1677b( a)( 6)( C)( iii)( 1994). 6
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The statute requires Commerce to include in CV the actual
amounts of selling, general, and administrative (" SG& A") expenses
incurred by the producer in the home market. See 19 U. S. C.
1677b( e)( 2)( A)( 1994). Imputed credit expenses are not actual
expenses, but rather opportunity costs. Therefore, prior to making
the circumstance of sale adjustment, Commerce did not include
imputed credit expenses in the CV calculation for the final
determination. See Japan Final at 38,148.
Because Commerce did not add imputed credit expenses to CV in
the first place, Goss argued that Commerce should not have deducted
an amount for home-market imputed credit expense from CV as a
circumstance of sale. See Mitsubishi, 22 CIT at , 15 F. Supp. 2d
at 823. In rebuttal, Commerce explained that the current statute
also requires actual profit to be added to CV. See id. at , 15
F. Supp. 2d at 824; see also 19 U. S. C. 1677b( e)( 2)( A). When
actual profit is used, Commerce argued, imputed credit is reflected
in the profit amount included in CV. See Mitsubishi, 22 CIT at
; 15 F. Supp. 2d at 824. The Court, however, could not sustain
Commerce's argument because it was a post hoc rationalization
advanced by agency counsel. See id. (citing Motor Vehicle Mfrs.
Ass'n of U. S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U. S. 29,
50 (1983)). Therefore, the Court remanded the matter for Commerce
to explain its decision on the record. See id.
On remand, Commerce explained that, "[ b] y using the
respondent's actual sales revenue and costs to compute CV profit,
the CV reflect[ ed] a NV unadjusted for imputed credit." See Remand
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Determ. at 6-7. Therefore, Commerce contended, using an actual
amount of profit did not preclude the imputed interest expense
adjustment even though NV was based on CV. See id. at 7 (citing
SAA at 831 (" New section [19 U. S. C. 1677b( a)( 8)] ensures
continuation of the ability to make appropriate adjustments to
constructed value when [constructed value] serves as the basis for
normal value.")).
Moreover, Commerce stated that this methodology was consistent
with its current practice. See id. (citing Engineered Process Gas
Turbo-Compressor Systems From Japan, 62 Fed. Reg. 24,394, 24,408
(Dep't Commerce, May 5, 1997)( final determ.)( explaining that, while
Commerce "would not add an amount for imputed credit expenses in
the calculation of CV pursuant to [19 U. S. C. 1677b( e)( 2)( A)],
such expenses are reflected in the calculation of CV profit and
interest expense"); Antifriction Bearings (Other Than Tapered
Roller Bearings) and Parts Thereof From France, 62 Fed. Reg. 2,081,
2,119-20 (Dep't Commerce, Jan. 15, 1997)( final results of admin.
review)).
Therefore, the issue before the Court is whether it was
permissible for Commerce to assume that the actual home-market
profit component of CV reflected the opportunity cost of extending
credit to customers. Neither the statute nor its legislative
history discusses whether imputed credit expenses are consistent
with the CV profit calculation. Therefore, the Court will defer to
Commerce's interpretation so long as it was reasonable. See Koyo
Seiko Co., Ltd. v. United States, 36 F. 3d 1565, 1573 (Fed. Cir.
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1994)( stating that, where the statute and its legislative history
do not clearly indicate Congress's intent, the court will defer to
Commerce's reasonable interpretation).
The Court finds that Commerce's decision to deduct imputed
credit expenses from CV was reasonable, especially in light of the
statute's objective of achieving a fair comparison. See 19 U. S. C.
1677b( a).
In the face of no counter arguments from Goss, it seems
reasonable for Commerce to assume that the Plaintiffs would have
sought to recover the opportunity cost of extending credit to their
local customers in the home-market price. A forgone activity
should be counted as a cost where the firm would have actually
engaged in that activity. See STEVEN E. LANDSUBRG, PRICE THEORY AND
APPLICATIONS 38 (1995). Accordingly, it seems reasonable to assume
that the Plaintiffs would have elected to earn interest had they
demanded immediate payments, thereby maximizing revenue. Under
this line of reasoning, the producers increase their home-market
prices to recover for the opportunity cost of extending credit to
their customers. Total revenue is equal to the home-market price
multiplied by the total number of home-market sales. The actual
profit component of CV is equal to total revenue minus total actual
costs. Therefore, a component of the Plaintiffs' actual profit on
home-market sales reflects the imputed credit expense.
Indeed, Commerce made the same assumption for U. S. sales in
deducting imputed credit expenses from CEP, the U. S. sales price.
See Remand Determ. at 5, 7. Thus, Commerce's decision to adjust
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both CV and CEP for imputed credit expenses was reasonable in order
to ensure a fair comparison. See 19 U. S. C. 1677b( a)(" a fair
comparison shall be made between the export price or constructed
export price and normal value"); see also Koyo Seiko, 36 F. 3d at
1568 (" To ensure that the quantum of antidumping duties is
calculated in a fair manner, both foreign market value and United
States price are subject to certain adjustments in order to achieve
a common point at which to perform the price comparison.").
Because Commerce's treatment of imputed credit expenses as
reflected in CV profit was permissible, the Court sustains
Commerce's decision to deduct imputed credit expenses from CV.

III. The Affiliation of Certain Major Input Suppliers
The statute directs Commerce to examine transactions between
"affiliated" companies involving the production by one of such
companies of a "major input" to the merchandise produced by the
other. See 19 U. S. C. 1677b( f)( 3)( 1994). Thus, for the purpose
of this provision, Commerce must determine whether the producer and
supplier are "affiliated." Under the statute, the following
persons, among others, are to be considered affiliated persons:
"[ a] ny person who controls any other person and such other person."
19 U. S. C. 1677( 33)( G)( 1994)( emphasis added). Moreover, "a person
shall be considered to control another person if the person is
legally or operationally in a position to exercise restraint or
direction over the other person." Id. (emphasis added). The SAA
explains that "[ a] company may be in a position to exercise
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7 The "Proposed Rules" refer to the regulations Commerce
proposed to conform its regulations to the Uruguay Round Agreements Act (" URAA"). See Antidumping Duties; Countervailing

Duties, 61 Fed. Reg. 7,308 (Dep't Commerce, Feb. 27, 1996)( notice of proposed rulemaking)(" Proposed Rules").

restraint or direction . . . through . . . close supplier
relationships in which the supplier or buyer becomes reliant upon
the other." SAA at 838.
Here, the Court found that Commerce failed to state the basis
upon which it determined that certain suppliers of major inputs
were affiliated with MHI pursuant to 19 U. S. C. 1677( 33)( G). See
Mitsubishi, 22 CIT at , 15 F. Supp. 2d at 832. During its
investigation, Commerce had requested that MHI list inputs obtained
from suppliers that furnished more than fifty percent of their
total annual sales to MHI, yet Commerce stated in its final
determination that it "never indicated that this constitute[ d]
affiliation." Japan Final at 38,163. Therefore, the Court
remanded this issue for Commerce to reevaluate its determination.
See Mitsubishi, 22 CIT at , 15 F. Supp. 2d at 832.
On remand, Commerce explained that, "[ b] ecause LNPP was one of
the first proceedings under the [Uruguay Round Agreements Act,]
[Commerce] could only look to the SAA and the Proposed Rules for
guidance." 7 Remand Determ. at 10. As noted, the SAA indicates
that "close supplier relationships" may constitute sufficient
control to satisfy 19 U. S. C. 1677( 33)( G), but does not define the
term. See SAA at 838. Moreover, the Proposed Rules indicate
Commerce's intention to develop the URAA definition of "control" on
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a case-by-case basis. See Proposed Rules at 7,310.
With this background, Commerce explained its methodology for
determining whether MHI's suppliers of major inputs were affiliated
with MHI within the meaning of 19 U. S. C. 1677( 33)( G):
In this case, [Commerce] determined that a reasonable reporting parameter for this purpose would be to consider
any supplier that depended upon MHI for 50 percent or more of its sales during each year during a five year
period to be potentially subject to the restraint or direction of MHI.

Remand Determ. at 10.
Commerce is to be accorded substantial deference in
interpreting the antidumping laws. See Torrington Co. v. United
States, 68 F. 3d 1347, 1351 (Fed. Cir. 1995)( citing Daewoo Elecs.
Co. v. Int'l Union, 6 F. 3d 1511, 1516 (Fed. Cir. 1993), cert.
denied, 512 U. S. 1204 (1994)). Therefore, where as here, Congress
leaves a term undefined, it is within Commerce's discretion to
develop the meaning of the term on a case-by-case basis so long as
its application in a given case is reasonable.
The Court finds that the greater-than-fifty-percent-sales-dependence-
for-five-years test was a reasonable reporting parameter
in this case. As noted, the SAA states that close supplier
relationships may be indicia of "control" under 19 U. S. C.
1677( 33)( G). See SAA at 838. Given the existence of a large
number of major input suppliers in this case, see Remand Determ. at
10, it was reasonable for Commerce to conclude that a close
supplier relationship existed where the supplier depended on MHI
for fifty percent or more of its sales during each year of a five
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year period.
The proposed rules Commerce cited also state, however, that
"[ m] ere identification of the presence of one or more of these or
other indicia of control does not end our task. We will examine
these indicia, in light of business and economic reality, to
determine whether they are, in fact, evidence of control."
Proposed Rules at 7,310. On remand, Commerce explained that,
[It] considered the standard of 50 percent or greater reliance for each year over a five year period
appropriate in this case because: 1) the period of investigation (and therefore the cost reporting period)
for MHI was a five-year period; 2) LNPP[ s] generally take multiple years to produce; and 3) this degree of reliance
over an extended period of time is high for custom-made merchandise. Under the unique facts of this case, we
consider this level of reliance sufficient to presume that such a supplier is affiliated with MHI on the basis
of control, within the meaning of [19 U. S. C. 1677( 33)( G)] through a close supplier relationship.

Remand Determ. at 10-11.
The Court finds that substantial evidence supports Commerce's
conclusion that a supplier's satisfaction of the greater-than-fifty-
percent-sales-dependence-for-five-years test demonstrated
affiliation on the basis of control. The record indicates that the
subject LNPPs are highly customized products, requiring unique
technical specifications. See Normal Value Mem. (Conf. Doc.
73)( Nov. 9, 1995) at 3. Coupled with the fact that LNPPs generally
take multiple years to produce, it logically follows that a long
term supplier would adjust its manufacturing operations to satisfy
the specific demands of its purchaser. Therefore, it was
reasonable for Commerce to conclude that MHI was "legally or
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operationally in a position to exercise restraint or direction
over" suppliers dependent on MHI for fifty percent or more of their
sales over a five year period.
The Court sustains Commerce's determination that certain major
input suppliers of MHI were affiliated with MHI within the meaning
of 19 U. S. C. 1677( 33)( G) because it was in accordance with law
and supported by substantial evidence.

IV. Commerce's Decision Not to Treat Trading Company and MHI as Affiliated Parties
The statute defines "affiliated persons" to include "[ t] wo or
more persons directly or indirectly controlling, controlled by, or
under common control with, any person." 19 U. S. C.
1677( 33)( F)( 1994). MLP U. S. A., Inc. (" MLP") is a joint venture
between MHI and a trading company (" Trading Company"). In
Mitsubishi, Goss argued that, because MHI and Trading Company
control a third person (i. e., MLP), MHI and Trading Company must be
treated as affiliated persons. See Mitsubishi, 22 CIT at , 15
F. Supp. 2d at 832. Commerce denied that the two parties were
affiliated, however, because neither MHI nor Trading Company
exercised control over each other. See id.
The Court held that, contrary to Commerce's interpretation,
"[ t] he statutory definition of affiliated parties at 19 U. S. C.
1677( 33)( F) does not require that MHI and Trading Company exercise
control over each other. The statute requires only that 'two or
more persons[] ' control a third person." See id. Therefore, the
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Court remanded for Commerce to reevaluate its determination as to
whether MHI and Trading Company were affiliated.
On remand, Commerce reconsidered its previous decision,
stating, "Given the nature of MHI's and the Trading Company's
ownership in a third person, [MLP], we conclude that MHI and the
Trading Company are affiliated pursuant to [19 U. S. C.
1677( 33)( F)]." Remand Determ. at 12.
MHI now argues that Commerce erroneously concluded that MHI is
affiliated with Trading Company on the basis of 19 U. S. C.
1677( 33)( F). See Cmts. of Pl. MHI on Remand Determ. at 6.
According to MHI, "The evidence establishes that MHI controls MLP,
but there is no evidence in the record that Trading Company, as a
minority shareholder, also controls MLP." Id. Therefore, MHI
contends that Commerce's conclusion was not supported by
substantial evidence.
The Court disagrees. Commerce did not find that MHI and
Trading Company were affiliated under 1677( 33)( F) based solely on
their common ownership of MLP. In its redetermination, Commerce
stated, "The record evidence on the degree to which the Trading
Company owned shares in MLP supports a conclusion that it also was
'legally or operationally in a position to exercise restraint or
direction' over MLP, as set forth in section [1677( 33)( F)]."
Remand Determ. at 21 (citing 19 C. F. R. 351.102( b)( stating that,
in defining "affiliated parties," Commerce "will not find that
control exists . . . unless the relationship has the potential to
impact decisions concerning the production, pricing, or cost of the
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Consol. Court No. 96-10-02292 Page 20
subject merchandise or foreign like product")).
Substantial evidence supports Commerce's conclusion that
Trading Company is "legally or operationally in a position to
exercise restraint or direction over" MLP. 19 U. S. C. 1677( 33).
Trading Company owned a significant interest in MLP and made
substantial loans to MLP. See MHI Oct. 17, 1995 Response (Conf.
Doc. 15) Sec. A, Exh. 17 at 5. Moreover, the fact that MHI and
Trading Company were the only shareholders of MLP and had a history
of common ownership in various companies suggests that they worked
together in managing MLP. See Ltr. from Wiley, Rein & Fielding
(Conf. Doc. 126)( Feb. 2, 1996) at 8, n. 17.
Therefore, the Court sustains Commerce's determination on
remand that MHI and Trading Company were affiliated within the
meaning of 19 U. S. C. 1677( 33)( F).
In finding on remand that MHI and Trading Company were
affiliated, Commerce reviewed whether that new determination
affected its previous decision to deduct commissions paid by MHI to
Trading Company in connection with the Piedmont sale. See Remand
Determ. at 12-13. The statute provides for the deduction of
certain expenses from CEP, including commissions:
[T] he price used to establish constructed export price shall also be reduced by
%

(1) the amount of any of the following expenses generally incurred by or for the account of the producer or
exporter, or the affiliated seller in the United States, in selling the subject merchandise (or subject
merchandise to which value has been added)--
(A) commissions for selling the subject merchandise in the United States;
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Consol. Court No. 96-10-02292 Page 21
(B) expenses that result from, and bear a direct relationship to, the sale, such as credit expenses,
guarantees and warranties; (C) any selling expenses that the seller pays on behalf
of the purchaser; and (D) any selling expenses not deducted under subparagraph
(A), (B), or (C)[.]
19 U. S. C. 1677a( d)( 1)( emphasis added).
In its remand determination, Commerce explained,
In deciding whether to continue to make an adjustment based on the commission, we considered whether, in light
of the joint venture relationship, it was appropriate to rely on a commission between these two parties. If the
nature of the relationships between the joint venture partners is such that any commission . . . received by
the affiliated trading company agent may not be at arm's length, it should be disregarded, like an intra-company
transfer. In such cases, [Commerce] would deduct from CEP the actual selling expenses incurred by the trading
company pursuant to [19 U. S. C. 1677a( d)( 1)( C) and (D)]. In contrast, where the joint venture partners are
otherwise independent of each other, the deduction may appropriately be based on the commission paid pursuant to
[19 U. S. C. 1677a( d)( 1)( A)].
Remand Determ. at 13.
This Court has sustained Commerce's practice of treating
commissions paid by the producer to an affiliated trading company
as an intracompany transfer, rather than as a true commission,
where the transfer merely serves as a reimbursement for the
affiliated party's actual selling expenses. See Floral Trade
Council v. United States, 23 CIT , , slip op. 99-10 (January
27, 1999) at 10. A decision "not to deduct commissions paid to
affiliated [trading companies] is . . . reasonable to the extent
that it fulfills the statutory objective of preventing double-counting."
Id. at , slip op. 99-10 at 10-11 (citing U. S. Steel
Group v. United States, 22 CIT , , 15 F. Supp. 2d 892, 905
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Consol. Court No. 96-10-02292 Page 22
(1998)( holding that, "if because of the relatedness of the producer
and U. S. selling agent expenses represented by the commissions are
already accounted for by means of a deduction for selling expenses
nominally made under another provision of 19 U. S. C. A. 1677a( d) .
. . , no additional commission deduction need be made."), appeal
docketed, No. 99-1342 (Fed. Cir. Feb. 12, 1999)). Therefore,
Commerce's interpretation of the statute in its remand
determination was in accordance with law.
On remand, Commerce found that "there [was] no evidence on the
record demonstrating that MHI and the Trading Company [had] any
corporate relationships outside the joint venture and the agency
relationship with respect to the Piedmont sale that would suggest
that these parties [did] not operate at arm's length." Remand
Determ. at 13-14. In other words, because Commerce determined that
the commission paid by MHI to Trading Company was at arm's length,
and therefore, not an intracompany transfer, Commerce deducted the
commission from CEP despite finding the parties to be affiliated
under 19 U. S. C. 1677( 33)( F) rather than deducting U. S. selling
agent expenses.
Commerce based its conclusion of an arm's length transaction
on two findings: 1) the absence of a control relationship between
MHI and Trading Company, and 2) the nature and terms of the
commission itself. See id. at 14. As support for its finding of
a lack of a control relationship, Commerce referred to its final
determination. See id. There, Commerce concluded "that the degree
of cross-ownership and the level of joint-financing between MHI and
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Consol. Court No. 96-10-02292 Page 23
8 The statute states that "[ a] ny person directly or
indirectly owning . . . 5 percent or more of the outstanding voting stock or shares of any organization and such

organization[]" are to be considered affiliated. 19 U. S. C. 1677( 33)( E). Given that neither MHI nor Trading Company held at
least five percent of the other's outstanding stock, it was reasonable for Commerce to treat that evidence as support for the
conclusion that neither party was "legally or operationally in a position to exercise restraint or direction over the other[.]"
19 U. S. C. 1677( 33).

the trading company [were] not significant enough to be indicators
of [control.]" Japan Final at 38,157.
Substantial evidence supports Commerce's findings. First,
concerning cross-ownership, the record indicates that both MHI and
Trading Company owned significantly less than five percent of each
other's outstanding shares of stock during the period of
investigation. 8 See MHI Supplemental Section A Response (Conf.
Doc. 115)( Jan. 18, 1996) at A-29. Second, the record indicates
that MHI and Trading Company did not have financing relationships
with each other. See id. at A-30. Third, based on the proportions
of sales made by MHI through Trading Company as compared to both
the total sales made by Trading Company and the total sales made by
MHI, Commerce reasonably determined that neither party was
dependent on the other. See Japan Final at 38,157; see also MHI
Supplemental Section A Response (Conf. Doc. 115)( Jan. 18, 1996) at
A-30.
Moreover, Commerce "reviewed the nature and terms of the
commission paid by MHI and the details of the Trading Company's
contribution to the transaction, and [found] no evidence that the
commission was anything but a transaction negotiated by two parties
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Consol. Court No. 96-10-02292 Page 24
9 Goss argues that in deducting the commission from CEP,
Commerce improperly "departed from its well-established practice[.]" Cmts. of Goss on Remand Determ. at 2. According to

Goss,
To determine whether the commission is made at arm's length, Commerce's standard practice is to compare the
commissions paid to affiliated selling agents with those paid by the respondent to any unaffiliated
selling agents in the same market. If there is no unaffiliated sales agent, Commerce generally compares
the commission earned by the affiliated selling agent on sales of merchandise produced by the respondent to
commissions earned by the affiliated selling agent on sales of merchandise produced by other unaffiliated
sellers or manufacturers.
Id. at 3 (citing LMI-LA Metalli Industriale S. p. A. v. United States, 912 F. 2d 455, 459 (Fed. Cir. 1990); Coated Groundwood
Paper From Finland, 56 Fed. Reg. 56,363, 56,371-72 (Dep't Commerce, Nov. 4, 1991)( final determ.)).
The practice Goss refers to, however, is based on Commerce's pre-URAA treatment of commissions. "Treatment of commissions
under the newly amended statute is not identical to that required by the [pre-URAA] statute[.]" U. S. Steel Group, 22 CIT at ,
15 F. Supp. 2d at 905.

acting in their own interests." Remand Determ. at 14.
Commerce reasonably based its finding of an arm's length
commission transaction between MHI and Trading Company on
substantial evidence indicating the absence of a control
relationship between the two parties, as well as on the nature and
terms of the commission itself. 9 Therefore, the Court sustains
Commerce's decision to deduct the commission paid by MHI to Trading
Company under 19 U. S. C. 1677a( d)( 1)( A) because it was in
accordance with law and supported by substantial evidence.

V. Foreign Like Product
"In calculating profit margins for CV, Commerce relied on 19 24
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Consol. Court No. 96-10-02292 Page 25
U. S. C. 1677b( e)( 2)( A), which states that CV profit is to be based
upon 'the actual amounts incurred and realized by the specific
exporter or producer . . . in connection with the production and
sale of a foreign like product . . . .'" See Mitsubishi, 22 CIT at
, 15 F. Supp. 2d at 828 (quoting 19 U. S. C.
1677b( e)( 2)( A)( emphasis added)). The statute defines "foreign like
product" as,
[M] erchandise in the first of the following categories in respect of which a determination . . . can be
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 % (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).
In Mitsubishi, TKS argued that Commerce should not have relied
on 1677b( e)( 2)( A) because the findings that led Commerce to rely
on CV rather than home-market prices in calculating NV constituted
evidence that no foreign like product existed in the home market.
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Consol. Court No. 96-10-02292 Page 26
10 TKS now argues that Commerce's foreign like product
determination was not in accordance with law because "[ Commerce] confused 'foreign like product' with 'the same class or kind' as

the merchandise subject to the investigation[, yet] . . . the two are distinct categories of merchandise." Cmts. of TKS on Remand
Determ. at 8. TKS's argument is without merit. The statute's

See Mitsubishi, 22 CIT at , 15 F. Supp. 2d at 828-29. Because
Commerce did not explain which of the three statutory foreign like
product definitions it relied upon in classifying LNPPs sold in the
home market as foreign like product, the Court remanded this issue
for Commerce's reconsideration. See id. at , 15 F. Supp. 2d at
829.
On remand, Commerce explained that it had relied upon the
definition of foreign like product at 1677( 16)( C) in making its
determination. See Remand Determ. at 17. Commerce explained its
basis for foreign like product under that section as follows:
First, the LNPP[ s] produced and sold in Japan by TKS were: 1) produced in the same country as the merchandise
subject to the investigation (Japan); 2) produced by the same person (TKS); and 3) are of the same general class
or kind as the merchandise subject to the investigation (LNPP). Second, the LNPP[ s] sold in the home market were
like the subject merchandise (LNPP) sold in the United States in the purposes for which they were used; i. e.,
both LNPP[ s] were used to produce newspapers. Finally, . . . home market LNPP[ s] may reasonably be compared to
the subject merchandise (LNPP). The fact that it was not practicable to compare specific models of LNPP[ s] is not
the same as saying that home market LNPP[ s] may not reasonably be compared with the subject merchandise
(LNPP).
Id.
Commerce properly explained the statutory basis for its
foreign like product determination in accordance with 19 U. S. C.
1677( 16)( C). 10 Commerce's application of what "may reasonably be
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Consol. Court No. 96-10-02292 Page 27
foreign like product provision is comprised of a hierarchy of three alternative definitions. See 19 U. S. C. 1677( 16).
Commerce relied on the third and broadest definition, which covers merchandise "of the same general class or kind as the
merchandise which is the subject of the investigation[.]" 19 U. S. C. 1677( 16)( C)( emphasis added). Therefore, Commerce's
interpretation of the foreign like product definition was consistent with the plain language of the statute.

compared" under 19 U. S. C. 1677( 16)( C)( iii) in this case, however,
appears inconsistent with its previous interpretation of this
requirement. In its remand determination, Commerce explained,
So as not to unreasonably distort comparisons involving non-identical merchandise, [Commerce] does not compare
subject merchandise sold in the United States to merchandise sold in the foreign market where the variable
cost of manufacturing of the latter merchandise differs from the variable cost of manufacturing of subject
merchandise sold to the United States by more than 20 percent of the total cost of manufacturing of the subject
merchandise sold to the United States.
Remand Determ. at 15 (citing Import Administration Policy Bulletin
92.2 (July 29, 1992)).
In the above excerpt, Commerce referred to the difference in
merchandise (" difmer") adjustment. Where the foreign like product
is not identical to the subject merchandise, Commerce will adjust
normal value for the "difference in cost attributable to the
difference in physical characteristics" pursuant to 19 U. S. C.
1677b( a)( 6)( C)( ii). Import Administration Policy Bulletin 92.2
(July 29, 1992). Here, then, had Commerce based the home-market
price on normal value, the difmer adjustment would have applied
because Commerce compared non-identical home-market and U. S. LNPPs.
To determine whether there is a reasonable basis for comparing
non-identical merchandise, Commerce applies the twenty percent
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Consol. Court No. 96-10-02292 Page 28
11 Although the policy bulletin is dated 1992, Commerce
continues to make the difmer adjustment to NV and employ the twenty percent difmer guideline under the URAA. See 19 U. S. C.

1677b( a)( 6)( C)( ii); 19 C. F. R. 351.411( 1998); see also Antidumping Manual, Ch. 8 at 49-52 (explaining that Commerce uses
the twenty percent difmer guideline to determine whether there is a reasonable basis for comparing merchandise).

difmer guideline. The policy bulletin Commerce cited in its remand
determination explains as follows:
To limit the potential differences in commercial value caused by physical differences, we employ the 20%
guideline. If the commercial value of two products is greatly different, then a comparison is not reasonable;
the difmer adjustment, being limited to variable manufacturing costs probably cannot fully compensate. .
. . When the variable cost difference exceeds 20%, we consider that the probable differences in values of the
items to be compared is so large that they cannot reasonably be compared. Since the merchandise is not
identical, does not have approximately equal commercial value, and has such large differences in commercial value
that it cannot reasonably be compared, the merchandise cannot be considered similar under [ 1677( 16)( A), (B),
or (C)]. . . .
There may be instances in which comparisons may be reasonable even if the diffmer [sic] is in excess of 20%
of the cost of manufacture of the U. S. model. . . . The 20% guideline is, however[,] a point of departure in the
analysis, and cannot be ignored. Any use of comparisons with greater than 20% diffmers [sic] must be explained.
. . . Unless we can explain how the comparison remains reasonable, or distortion is minimized, we should not
make comparisons when diffmers [sic] exceed 20%. Instead, when there is no other similar merchandise, we
should revert to constructed value[.]
Import Administration Policy Bulletin 92.2 (July 29, 1992)( emphasis
added). 11
Thus, where the difmer adjustment would exceed twenty percent,
Commerce cannot make a finding that merchandise is reasonably
comparable, unless it can explain how the comparison nevertheless
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Consol. Court No. 96-10-02292 Page 29
remains reasonable.
Here, it appears Commerce found that the difmer adjustment
would exceed the twenty percent guideline. First, as quoted above,
Commerce mentioned the twenty percent difmer guideline in its
remand determination. See Remand Determ. at 15. Moreover, in its
final determination, Commerce stated, "[ T] he degree of unique
customization for customers made the difference-in-merchandise
adjustment for product price matching potentially so complex that
the use of CV provided a more reliable and administrable
methodology for establishing NV." Japan Final at 38,146. Finally,
in its normal value memorandum, Commerce stated,
[T] he petitioner's arguments fail to resolve the fundamental product comparability problems stemming from
differences between the U. S. and Japanese LNPP markets[.] . . . The sheer extent of the physical differences
demonstrate that the [petitioner's] proposed matches are between products separated by complex physical
differences so numerous that the Department's normal reliance on [difmer] adjustments would become an
analytical exercise equivalent to the use of constructive value.

Normal Value Mem. (Conf. Doc. 73)( Nov. 9, 1995) at 16-17.
Because Commerce appears to find that the difmer adjustment
would exceed the twenty percent guideline, Commerce cannot conclude
that the home-market and U. S. LNPPs "may reasonably be compared"
under 19 U. S. C. 1677( 16)( C)( iii) without explaining how the
merchandise nevertheless remains comparable. See Import
Administration Policy Bulletin 92.2 (July 29, 1992). As it stands,
Commerce has not explained how the merchandise is still reasonably
comparable. Moreover, TKS argues that Commerce's reasonable
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Consol. Court No. 96-10-02292 Page 30
comparison finding under subparagraph (iii) of 1677( 16)( C) is not
supported by substantial evidence. See Cmts. of TKS on Remand
Determ. at 10. The Court agrees.
In its remand determination, Commerce stated, "In making fair
value comparisons, [Commerce] identifies the 'foreign like product'
by comparing the physical characteristics of subject merchandise
with the physical characteristics of merchandise sold in the
foreign market." Remand Determ. at 15 (citing Stainless Steel Wire
Rod From Spain, 63 Fed. Reg. 40,391, 40,399 (Dep't Commerce, July
29, 1998)( final determ.)). Here, however, none of the record
documents Commerce cited as support for its foreign like product
determination indicates that the home-market and U. S. LNPPs were
reasonably comparable in terms of their physical characteristics.
See Remand Determ. at 24 (citing Normal Value Mem. (Conf. Doc.
73)( Nov. 9, 1995); Prelim. Concurrence Mem. (Conf. Doc. 152)( Feb.
23, 1996) at 10; Japan Final at 38,146-47).
Instead, each document that Commerce cited merely refers to a
putative foreign like product, without discussing the factual
support for the decision. For example, in the preliminary
concurrence memorandum, Commerce merely stated, "[ W] e have
determined that the foreign like product consists of all LNPPs,
additions, and components sold by the Plaintiffs in their
respective home markets[.]" Prelim. Concurrence Mem. (Conf. Doc.
152)( Feb. 23, 1996) at 10. Moreover, rather than mention a single
physical similarity, the bulk of the normal value memorandum
discusses all the physical dissimilarities between home-market and
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Consol. Court No. 96-10-02292 Page 31
12 Commerce also cited certain questionnaire responses as
admissions by TKS that it considered its home-market LNPPs to be a foreign like product. See Remand Determ. at 16 (citing TKS

Sept. 27, 1995 Response (Conf. Doc. 15) Sec. A at A-7, A-8). In its brief, Commerce states that it "reasonably treated TKS's own
admissions as relevant to . . . whether LNPPs from Japan could reasonably be compared with LNPPs from the United States."
Def. 's Br. at 17. The Court disagrees with Commerce's characterization of TKS's questionnaire responses as
"admissions." Upon reviewing TKS's statements, one could not reasonably conclude that TKS was conceding that its home-market
LNPPs constituted a foreign like product. See TKS Sept. 27, 1995 Response (Conf. Doc. 15) Sec. A at A-5 to A-12. To the contrary,
TKS's statements unambiguously express TKS's position that "there is no reasonable basis for comparison of the sales of LNPP
additions by TKS in the United States and Japan." Id. at A-7. Therefore, TKS's section A questionnaire responses do not
constitute substantial evidence for Commerce's foreign like product determination.

U. S. LNPPs. See Normal Value Mem. (Conf. Doc. 73)( Nov. 9, 1995) at
6-17. The Court cannot review Commerce's foreign like product
finding without an explanation of the decision's factual basis.
See SEC v. Chenery Corp., 318 U. S. 80, 94 (1943). 12
The Court cannot sustain Commerce's foreign like product
determination. The Court remands this issue for Commerce's
reconsideration consistent with this Court's opinion. On remand,
Commerce may either explain how the Japanese and U. S. LNPPs are
reasonably comparable notwithstanding the twenty percent difmer
guideline or find that no foreign like product exists. In
addition, Commerce must establish that substantial record evidence
demonstrates physical similarities Commerce for determining that a
fair value comparison between Japanese and U. S. LNPPs can be made.
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Consol. Court No. 96-10-02292 Page 32
Conclusion
For the reasons set out above, Commerce's remand determination
in Large Newspaper Printing Presses from Japan is remanded for
Commerce to reconsider and explain its foreign like product
determination in accordance with this Court's opinion. Commerce's
remand determination is sustained in all other respects. Commerce
shall complete its remand determination by Monday, July 26, 1999;
any comments or responses are due by Wednesday, August 25, 1999;
and any rebuttal comments are due by Thursday, September 9, 1999.
So Ordered.

Donald C. Pogue Judge
Dated: May 26, 1999 New York, New York


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