MacLean-Fogg Company v. United States

SLIP OP 12 -
UNITED STATES COURT OF INTERNATIONAL TRADE
Before: Donald C. Pogue,
Chief Judge
Consol. Court No. 11-00209
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.
MACLEAN-FOGG COMPANY, et al.,
Plaintiffs,
v.
UNITED STATES,
Defendant.
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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.”
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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
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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
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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.
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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.
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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.
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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
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