Fedmet Resources Corporation v. United States

Slip Op.
UNITED STATES COURT OF INTERNATIONAL TRADE
FEDMET RESOURCES CORPORATION,
Plaintiff,
v.
UNITED STATES,
Defendant.
ANH REFRACTORIES COMPANY,
RESCO PRODUCTS, INC., AND
MAGNESITA REFRACTORIES
COMPANY,
Defendant-Intervenors.
Before: 	Nicholas Tsoucalas,
Senior Judge
Court No. 12-00215
OPINION
[Commerce’s Final Redetermination is sustained.]
Dated:
Donald 	B. 	Cameron, 	Brady 	W. 	Mills, 	Julie 	C. 	Mendoza, 	Mary 	S.
Hodgins, Rudi W. Planert, and Sarah S. Sprinkle, Morris Manning &
Martin LLP, of Washington, DC, for plaintiffs.
Antonia 	R. 	Soares, 	Trial 	Attorney, 	Commercial 	Litigation 	Branch,
Civil Division, U.S. Department of Justice, of Washington, DC, for
Defendant. 	With her on the brief were Benjamin C. Mizer, Principal
Deputy 	Assistant 	Attorney 	General, 	Jeanne 	E. 	Davidson, 	Director,
Patricia M. McCarthy, Assistant Director. 	Of counsel on the action
was Whitney Rolig, Attorney, Office of the Chief Counsel for Trade
Enforcement 	and 	Compliance, 	U.S. 	Department 	of 	Commerce, 	of
Washington, DC.
Joseph 	W. 	Dorn, 	Brian 	E. 	McGill, 	and 	J. 	Michael 	Taylor, 	King 	&
Spalding 	LLP, 	of 	Washington, 	DC, 	for 	defendant-intervenor 	ANH
Refractories Company et al.
15-48
May 22, 2015
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Tsoucalas, Senior Judge: 	before the court are the final
results 	of 	Defendant 	United 	States 	Department 	of 	Commerce’s
(“Commerce”) 	redetermination 	pursuant 	to 	this 	court’s 	Order,
Fedmet 	Res. 	Corp. 	v. 	United 	States, 	No. 	12-00215, 	(CIT 	March 	30,
2015), ECF No. 89 (“Remand Order”), instructing Commerce to act in
accordance 	with 	the 	Court 	of 	Appeals 	for 	the 	Federal 	Circuit’s
(“CAFC”) decision in 	Fedmet Res. Corp. v. United States, 755 F.3d
912 	(Fed. 	Cir. 	2014). 	See 	Final 	Results 	of 	Redetermination
Pursuant to Court Remand Magnesia Carbon Bricks from the People’s
Republic 	of 	China 	and 	Mexico, 	ECF 	No. 	87 	(Feb. 	23, 	2015) 	(“Final
Redetermination”). 	Defendant-Intervenors, 	Resco 	Products, 	Inc.,
Magnesita Refractories Company, and Harbison Walker International,
Inc. (formerly ANH Refractories Company) (collectively "Defendant-
Intervnors"), challenge Commerce’s redetermination. 	See Cmts. of
Def.-Ints.’s 	on 	the 	Final 	Redetermination, 	ECF 	No. 	98 	(Apr. 	29,
2015) 	(“Def.-Ints.’s 	Cmts.”). 	Both 	Plaintiff, 	Fedmet 	Resources
Corp., and Commerce request that the court sustain Commerce’s Final
Redetermination. 	See 	Rebuttal 	Cmts. 	of 	Pl. 	Fedmet 	Res. 	Corp. 	on
the Final Redetermination, ECF No. 102 (May 14, 2015); See Def.’s
Resp. to Cmts. on the Final Redetermination, ECF No. 106 (May 15,
2015).
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In 	Fedmet 	the 	CAFC 	held 	that 	Commerce’s 	determination
that the scope of the Orders extended to Fedmet’s Bastion magnesia
alumina 	carbon 	bricks 	(“MACBs”) 	is 	unsupported 	by 	substantial
evidence, explaining that “Fedmet’s [MACBs] are outside the scope
of 	the 	countervailing 	and 	antidumping 	orders 	at 	issue 	in 	this
case.” 	Fedmet, 755 F.3d at 922; See Certain Magnesia Carbon Bricks
From the People’s Republic of China: Countervailing Duty Order, 75
Fed. Reg. 57,442 (Sept. 21, 2010); Certain Magnesia Carbon Bricks
From 	Mexico 	and 	the 	PRC: 	Antidumping 	Duty 	Orders, 	75 	Fed. 	Reg.
57,257 	(Sept. 	20, 	2010) 	(collectively 	“Orders”). 	Accordingly,
pursuant to the CAFC’s decision in Fedmet and this court’s Remand
Order, 	Commerce 	determined 	in 	its 	Final 	Redetermination 	that
Fedmet’s 	MACBs 	are 	not 	subject 	to 	the 	Orders 	on 	magnesia 	carbon
bricks 	(“MCBs”) 	from 	Mexico 	and 	the 	People’s 	Republic 	of 	China
(“PRC”). 	The relevant facts and procedural history are set forth
in Fedmet. 	See Fedmet, 755 F.3d 912. 	Familiarity with the facts
and procedural history is presumed.
Defendant-Intervenors insist that a remand is necessary
for 	Commerce 	to 	remove 	the 	term 	“approximately” 	from 	the 	MACB
definition and provide an “unambiguous, precise definition of the
[MACBs] 	that 	are 	outside 	the 	scope 	of 	the 	antidumping 	and
countervailing orders on [MCBs].” 	Def.-Ints.’s Cmts. at 1, 4-7.
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Additionally, 	Defendant-Intervenors 	contend 	that 	a 	remand 	is
necessary 	for 	Commerce 	to 	re-open 	the 	record 	of 	the 	scope
proceeding 	to 	solicit 	additional 	factual 	information 	on 	testing
methodologies 	for 	assessing 	alumina 	content 	and 	to 	provide
guidance 	to 	U.S. 	Customs 	and 	Border 	Protection 	regarding 	the
appropriate testing methodology that will distinguish between in-
scope and out-of-scope merchandise. 	Id. at 1, 8-11.
The 	court 	finds 	Defendant-Intervenors’s 	arguments
unavailing. 	The MACBs definition Commerce relied on in the Final
Redetermination is consistent with the definition the CAFC adopted
in Fedmet. 	See Fedmet, 755 F.3d at 916-17. 	Accordingly, because
the 	Final 	Redetermination 	is 	in 	full 	compliance 	with 	the 	CAFC’s
decision 	in 	Fedmet, 	the 	court 	concludes 	that 	the 	Final
Redetermination 	must 	be 	sustained. 	Judgment 	will 	be 	entered
accordingly.
/s/ Nicholas Tsoucalas
Nicholas Tsoucalas
Senior Judge
Dated:
New York, New York
May 22, 2015
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