Mid Continent Nail Corporation v. United States

Slip Op.15-35
UNITED STATES COURT OF INTERNATIONAL TRADE
MID CONTINENT NAIL CORP.,
Plaintiff,
v.
UNITED STATES,
Defendant.
TARGET CORP.,
Defendant-Intervenor.
Before: 	Nicholas Tsoucalas,
Senior Judge
Court No. 10-00247
OPINION
[Commerce’s 	Final 	Results 	of 	Redetermination 	Pursuant 	to 	Remand
Order is sustained.]
Dated:April 22, 2015
Adam 	H. 	Gordon 	and 	Jordan 	C. 	Kahn, 	Picard 	Kentz 	& 	Rowe 	LLP, 	of
Washington, DC, for Mid Continent Nail Corporation, plaintiff.
Benjamin 	C. 	Mizer, 	Acting 	Assistant 	Attorney 	General, 	Jeanne 	E.
Davidson, Director, and Patricia M. McCarthy, Assistant Director,
Department 	of 	Justice, 	Civil 	Division, 	Commercial 	Litigation
Branch, 	Washington, 	DC, 	for 	defendant. 	Of 	counsel 	on 	the 	brief
was 	Justin 	R. 	Becker, 	Attorney, 	Office 	of 	the 	Chief 	Counsel 	for
Trade Enforcement and Compliance, U.S. Department of Commerce, of
Washington, DC.
Marguerite 	E. 	Trossevin, 	Jochum 	Shore 	& 	Trossevin, 	PC, 	of
Washington, DC, for Target Corporation, defendant-intervenor.
Tsoucalas, Senior Judge: 	before the court are the final
results 	of 	defendant 	United 	States 	Department 	of 	Commerce’s
(“Commerce”) 	redetermination 	of 	its 	scope 	ruling 	on 	nails 	within
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toolkits 	imported 	by 	Defendant-Intervenor, 	Target 	Corporation
(“Target”). 	See 	Final 	Results 	of 	Redetermination 	Pursuant 	to
Remand 	Order, 	ECF 	No. 	123 	(Jan. 	21, 	2015) 	(“Fourth 	Remand
Results”). 	Both Plaintiff, Mid Continent Nail Corp., and Commerce
insist that the court sustain the Fourth Remand Results. 	See Pl.’s
Response to Def.-Int.’s Cmts. on Remand Results, ECF No. 127 (Mar.
9, 2015) (“Def-Int.’s Br.”); Def.'s Resp. to Cmts. Regarding Fourth
Remand Redetermination, ECF No. 128 (Mar. 9, 2015). 	Alternatively,
Target 	respectfully 	protests 	Commerce’s 	redetermination. 	See
Def.-Int.’s 	Cmts. 	on 	Def.’s 	Redetermination 	Pursuant 	to 	Remand
Order, ECF No. 125 (Jan. 21, 2015).
In 	the 	Fourth 	Remand 	Results 	Commerce 	“examine[d] 	the
nails 	themselves, 	without 	regard 	to 	the 	toolkits,” 	and 	therefore
concluded that the nails were within the scope of the antidumping
duty order on nails from the People’s Republic of China (“Order”).
Fourth 	Remand 	Results 	at 	8. 	The 	relevant 	facts 	and 	procedural
history are set forth in Mid Continent Nail Corp. v. United States.
Mid Continent Nail Corp. v. United States, 38 CIT __, 24 F.Supp.3d
1279 (2014) (“MCN IV”). 	Familiarity with the facts and procedural
history is presumed.
As an initial matter, the court declines to consider the
Comments Target has submitted to this court. 	Def-Int.’s Br. at 1-
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4. 	It is well settled that a party must exhaust its administrative
remedies in order for this court to consider its comments. 	Aimcor
v. United States, 141 F.3d 1098 (Fed. Cir. 1998). 	Furthermore, a
party 	has 	not 	exhausted 	its 	administrative 	remedies 	if 	it 	failed
to 	raise 	an 	issue 	at 	the 	administrative 	level. 	See 	Aimcor, 	141
F.3d 	at 	1111; 	Budd 	Co., 	Wheel 	& 	Brake 	Div. 	v. 	United 	States, 	15
CIT 446, 773 F.Supp. 1549 (1991) (a party failing to raise an issue
at the administrative level during remand proceedings cannot raise
the issue de novo before a reviewing court). 	Therefore, Target’s
failure 	to 	raise 	its 	arguments 	before 	Commerce 	at 	the
administrative 	stage 	of 	the 	proceedings 	precludes 	the 	court 	from
considering its comments. 	See id.; Fourth Remand Results at 7.
In the Fourth Remand Results, Commerce, under respectful
protest, 	determined 	that 	“the 	mixed-media 	test 	is 	not 	applicable
in determining whether the nails in the toolkit are subject to the
scope” 	of 	the 	Order. 	Fourth 	Remand 	Results 	at 	7. 	Therefore,
Commerce 	“examined 	the 	nails 	themselves, 	without 	regard 	to 	the
toolkits” 	and 	concluded 	that 	the 	nails 	found 	within 	the 	toolkits
are 	subject 	to 	the 	Order. 	Id. 	at 	8. 	Commerce’s 	Fourth 	Remand
Results comply with the court’s remand order and are supported by
substantial evidence. 	Furthermore, no party procedurally entitled
to object has done so.
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For 	the 	foregoing 	reasons, 	Commerce’s 	Fourth 	Remand
Results is SUSTAINED. 	Judgment will be entered accordingly.
/s/ Nicholas Tsoucalas
Nicholas Tsoucalas
Senior Judge
Dated:
New York, New York
April 22, 2015
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