Maclean-Fogg Co. v. United States

SLIP OP 12 - 81

UNITED STATES COURT OF INTERNATIONAL TRADE

MACLEAN-FOGG COMPANY, et al.,

Plaintiffs,
Before: Donald C. Pogue,
v. Chief Judge

UNITED STATES, Consol. Court No. 11-00209

Defendant.

MEMORANDUM AND ORDER

[Plaintiffs’ motion for reconsideration granted in part and
denied in part.]
Dated: June 13, 2012

Thomas M. Keating, and Lisa M. Hammond, Hodes, Keating and
Pilon, of Chicago, IL, for Plaintiffs Maclean-Fogg Co. and Fiskars
Brands, Inc.

Mark B. Lehnardt, Lehnardt & Lehnardt LLC, of Liberty, MO, for
the Plaintiff-Intervenors Eagle Metal Distributors, Inc. and Ningbo
Yili Import and Export Co., Ltd.

Craig A. Lewis, Theodore C. Weymouth, and Brian S. Janovitz,
Hogan Lovells US LLP, of Washington, DC, for the Plaintiff-
Intervenor Evergreen Solar, Inc.

Tara K. Hogan, Trial Attorney, Commercial Litigation Branch,
Civil Division, United States Department of Justice, of Washington,
DC, for the Defendant. With her on the briefs were Stuart F.
Delery, Assistant Attorney General; Jeanne E. Davidson, Director;
and Reginald T. Blades Jr., Assistant Director. Of counsel on the
briefs were, Joanna Theiss, Office of the Chief Counsel for Import
Administration, United States Department of Commerce, and

Stephen A. Jones, Christopher T. Cloutier, Daniel L.
Schneiderman, Gilbert B. Kaplan, Joshua M. Snead, and Patrick J.
Togni, King and Spalding LLP, of Washington, DC, for the Defendant-
Intervenor Aluminum Extrusions Fair Trade Committee.
Consol. Court No. 11-00209 Page 2

Pogue, Chief Judge: In prior proceedings in this matter,

joint Plaintiffs, four domestic importers and one exporter of

extruded aluminum, challenged the 374.15% all-others countervailing

duty (“CVD”) rate set by the Department of Commerce (“the

Department” or “Commerce”) in its investigation of their goods

imported from the People’s Republic of China. The court held that

the Department’s applicable regulation was permitted by ambiguity

in the statute governing the all-others rate, but it also found the

rate unreasonable and remanded it to Commerce for reconsideration.

MacLean-Fogg Co. v. United States, Slip Op. 12-47, 2012 WL 1129374

(CIT Apr. 4, 2012)(“MacLean-Fogg I”).1

Despite the court’s remand order, Plaintiffs, pursuant to

USCIT Rule 59, now seek reconsideration of the court’s opinion.2

Plaintiffs assert that there was legal error in the court’s 1)

decision not to address Commerce’s preliminary provisional rate

determination and 2) failure to conclude that statutory term

“individually investigated” is unambiguous when considered in the

light of the Statement of Administrative Action accompanying the

Uruguay Round Agreements Act, H.R. Doc. No. 103-316, vol. 1 (1994)

1
Familiarity with the court’s April 4, 2012 opinion is
presumed. Commerce’s remand redetermination is due June 25,
2012.
2
USCIT Rule 59 provides that a “rehearing may be granted
. . . for any reason for which a rehearing has heretofore been
granted in a suit in equity in federal court.”
Consol. Court No. 11-00209 Page 3

reprinted in 1994 U.S.C.C.A.N. 4040 (“SAA”).

As explained below, Plaintiffs’ first assertion is

partially correct, while Plaintiffs’ second assertion is not.

Accordingly, Plaintiffs’ motion is granted in part.

STANDARD OF REVIEW

The court will grant a rehearing when there has been: “1)

an error or irregularity, 2) a serious evidentiary flaw, 3) the

discovery of new evidence which even a diligent party could not

have discovered in time, or 4) an accident, unpredictable surprise

or unavoidable mistake which impaired a party’s ability to

adequately present its case.” See, e.g., Target Stores v. United

States, 31 CIT 154, 156, 471 F. Supp. 2d 1344, 1347 (2007).

However, the court does not grant a motion for rehearing merely to

permit the losing party another chance to re-litigate the case.

USEC, Inc. v. United States, 25 CIT 229, 230, 138 F. Supp. 2d 1335,

1336–37 (2001). Rather, the moving party must show that the court

committed a “fundamental or significant flaw” in the original

proceeding. Id.

DISCUSSION

Plaintiffs first assert that the court erred in failing

to address Plaintiffs’ challenge to the 137.65% preliminary or

provisional all-others rate set by the preliminary determination,

Aluminum Extrusions from the People’s Republic of China, 75 Fed.

Reg. 54,302 (Dep’t Commerce Sept. 7, 2010) (preliminary
Consol. Court No. 11-00209 Page 4

affirmative CVD determination) (“Preliminary Determination”).

That provisional rate was later replaced by the final 374.15%

rate, published in Aluminum Extrusions from the People’s Republic

of China, 76 Fed. Reg. 18,521 (Dep’t Commerce Apr. 4, 2011)

(final affirmative CVD determination) (“Final Determination”) and

accompanying Issues and Decision Memorandum, (Mar. 28, 2011),

Admin. R. Pub. Doc. 465, available at

http://ia.ita.doc.gov/frn/summary/PRC/2011-7926-1.pdf (last

visited on June 12, 2012) (“I&D Memo”), the rate remanded for

reconsideration. Nonetheless, Plaintiffs argue that, in addition

to the court’s review and remand of the final rate, the

preliminary provisional all-others rate must also be subject to

judicial review.

In MacLean-Fogg I, the court declined to address

Plaintiffs’ challenge to the preliminary rate, noting that “the

court’s jurisdiction under 28 U.S.C. § 1581(c) is to review final

agency action.” MacLean-Fogg, 2012 WL 1129374 at n.11. While

the court’s statement is correct, it is insufficient. Rather,

review of a temporary provisional rate may be appropriate in the

circumstances here. See 19 U.S.C. § 1516a(a)(2)(A); 19 U.S.C.

§ 1516a(b)(1)(“The court shall hold unlawful any determination,

finding or conclusion found . . . .”); H.R. Rep. NO. 1235, 96th

Cong., 2d Sess. 48 (1980), reprinted in 1980 U.S.C.C.A.N. 3729,

3759–60. Here Plaintiffs properly preserved their request for
Consol. Court No. 11-00209 Page 5

review of Commerce’s preliminary rate determination by raising

the issue for decision in the Final Determination. See I&D Memo

at 54, Comment 12 (“Whether the Department Should Retroactively

Revise the All Others Rate from the Preliminary Determination . .

. .”); see also 5 U.S.C. § 704 (“A preliminary, procedural, or

intermediate agency action or ruling not directly reviewable is

subject to review on the review of the final agency action.”).

Such review is appropriate where the statute so provides. Id.

(“Agency action made reviewable by statute and final agency

action for which there is no other adequate remedy in a court are

subject to judicial review.”). Here the applicable statute, 19

U.S.C. § 1516a(a)(2)(A), provides for review.

Nonetheless, considered in light of the court’s remand

of the Final Determination, Plaintiffs’ request for review of the

temporary provisional rate is, in part, moot. In MacLean-Fogg I,

Plaintiffs asserted the same substantive challenge to both the

preliminary rate and the final rate, claiming that the statute

unambiguously prohibited Commerce’s rate determination

methodology and thus prohibited Commerce’s reliance on the

regulation utilized to determine the Plaintiffs’ CVD rate.

MacLean-Fogg, 2012 WL 1129374 at 4. As noted above, the court

denied this claim. Id. Thus, this aspect of Plaintiffs’

challenge is moot. However, MacLean-Fogg I also found the final

rate unreasonable and remanded it for consideration. Id. at 6.
Consol. Court No. 11-00209 Page 6

As the court did not decide the reasonableness of the temporary

provision rate, that aspect of Plaintiffs’ challenge may not be

moot.

Specifically, although the final determination sets the

on-going cash deposit rate for Plaintiffs’ goods, the provisional

rate carries some force.3 Tariff Act of 1930, § 705, as amended,

19 U.S.C. § 1671d(c)(1)(B)4; 19 C.F.R. § 351.210(d); Final

Determination, 76 Fed. Reg. at 18,523. Plaintiffs may request an

administrative review, in which Commerce adjusts (or “caps”) the

actual payments owed to the lesser of either 1) the cash deposit

rate (set by the Preliminary Determination) or 2) the final rate

determined upon review. 19 C.F.R. § 351.212(d); Final

Determination, 76 Fed. Reg. at 18,523.

Because of its continued applicability as a “cap,”

Commerce’s preliminary provisional rate determination may qualify

for reasonableness review. Accordingly, the court will consider

this aspect of Plaintiffs’ request for consideration when it

3
The preliminary provisional rate functions as the cash
deposit rate for goods entered between the publication of the
preliminary and final determinations. It is unlikely that this
aspect of Plaintiffs’ claim would support a request for
reasonableness review because any amounts that prove, upon court
or administrative review, to be overpayments would be refunded
with interest. 19 U.S.C. § 1505. Plaintiffs make no claim that
the statutory interest provision is inadequate for entries made
between the preliminary and final determinations.
4
All further citations to the Tariff Act of 1930, as
amended, are to Title 19 of the U.S. Code, 2006 edition.
Consol. Court No. 11-00209 Page 7

reviews Commerce’s remand determination.

Plaintiffs next argue that the court failed to consider

language in the SAA when it held that the term “individually

investigated” is ambiguous. Specifically, Plaintiffs claim that

the use of the word, “investigate,” throughout the SAA

demonstrates that it must consistently apply to voluntary

respondents. This argument is unavailing.

The section of the SAA upon which Plaintiffs rely

states that “Commerce . . . will endeavor to investigate all

firms that voluntarily provide timely responses in the form

required.” Uruguay Round Agreements Act, Statement of

Administrative Action, H.R. Doc. No. 103-316 (1994), reprinted in

1994 U.S.C.C.A.N. 4040, 4201. But this section is titled

“Treatment of Voluntary Respondents.” Id. Thus, in this

particular section of the SAA, “investigate” does refer to

voluntary respondents, but it does not follow that a neutral verb

such as “investigate” therefore subsequently always includes

voluntary respondents in its scope.5

5
Plaintiffs also assert that the court overlooked the
meaning of the word, “all,” in its prior opinion. However,
because a motion for rehearing is not intended to provide
litigants an opportunity to re-argue their case, and because
Plaintiffs’ arguments in this regard do not identify any serious
error, this assertion fails. USEC, 25 CIT at 230, 138 F. Supp.
2d at 1336.
Consol. Court No. 11-00209 Page 8

CONCLUSION

For the forgoing reasons, Plaintiffs’ motion for

reconsideration is GRANTED in part and DENIED in part.

It is SO ORDERED.

/s/ Donald C. Pogue
Donald C. Pogue, Chief Judge

Dated: June 13, 2012
New York, New York