885 F.Supp.2d 1337 (CIT 2012), 11-00209, MacLean-Fogg Co. v. United States

Docket Nº:Consol.[1] Court 11-00209.
Citation:885 F.Supp.2d 1337
Opinion Judge:POGUE, Chief Judge:
Party Name:MacLEAN-FOGG CO., et al., Plaintiffs, v. UNITED STATES, Defendant, and Aluminum Extrusions Fair Trade Committee, Defendant-Intervenors. Slip Op. 12-146.
Attorney:Thomas M. Keating, Lisa M. Hammond, and Kazumune V. Kano, Hodes Keating & Pilon, of Chicago, IL, for Plaintiffs MacLean-Fogg Co. and Fiskars Brand, Inc. Mark B. Lehnardt, Lehnardt & Lehnardt LLC, of Liberty, MO, for Plaintiff-Intervenors Eagle Metal Distributors, Inc. and Ningbo Yili Import & Exp...
Case Date:November 30, 2012
Court:Court of International Trade
 
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Page 1337

885 F.Supp.2d 1337 (CIT 2012)

MacLEAN-FOGG CO., et al., Plaintiffs,

v.

UNITED STATES, Defendant,

and

Aluminum Extrusions Fair Trade Committee, Defendant-Intervenors.

Slip Op. 12-146.

Consol. 1 Court No. 11-00209.

United States Court of International Trade.

November 30, 2012

Page 1338

Thomas M. Keating, Lisa M. Hammond, and Kazumune V. Kano, Hodes Keating & Pilon, of Chicago, IL, for Plaintiffs MacLean-Fogg Co. and Fiskars Brand, Inc.

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

Craig A. Lewis, T. Clark Weymouth, and Brian S. Janovitz, Hogan Lovells U.S. LLP, of Washington, DC, for Plaintiff-Intervenor Evergreen Solar, Inc.

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

Stephen A. Jones, Christopher T. Cloutier, Daniel L. Schneiderman, Gilbert B. Kaplan, Joshua M. Snead, and Patrick J. Togni, King & Spalding LLP, of Washington, DC, for Defendant-Intervenor Aluminum Extrusions Fair Trade Committee.

OPINION

POGUE, Chief Judge:

This case returns to court following remand in MacLean-Fogg Co. v. United States, 36 CIT ___, 853 F.Supp.2d 1336 (2012) (" MacLean-Fogg III " ). MacLean-Fogg III found that the Department of Commerce's (" the Department" or " Commerce" ) application, to the Plaintiffs, of the all-others 374.15% countervailing duty (" CVD" ) rate required reconsideration or further explanation because Commerce failed to properly explain why the assumption that Plaintiffs, like the mandatory respondents in this investigation,2 used 100% of subsidies available throughout the People's Republic of China (" PRC" or " China" ) was remedial and not punitive. The court ordered Commerce to either explain how its assumption was remedial and not punitive, or, alternatively, recalculate the

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rate applicable to the Plaintiffs' merchandise.

On remand, Commerce recalculated the all-others rate, finding appropriate a rate equal to the mandatory respondents' preliminary rate: 137.65%. Final Results of Redetermination Pursuant to Court Remand, ECF No. 80 at 1 (Dep't Commerce Sept. 13, 2012) (" Remand Results " ) (citing Aluminum Extrusions from the People's Republic of China, 75 Fed. Reg. 54,302 (Dep't Commerce Sep. 7, 2010) (preliminary affirmative countervailing duty determination)). Explaining that this rate is remedial and not punitive, Commerce stated that the preliminary rate is not based on all the subsidy programs that were identified in the investigation and ultimately used in the final rate calculation for the mandatory respondents. Rather, Commerce excluded programs that were identified as used solely by the voluntary respondents and assumed a lower subsidy rate for those programs than the subsidy rate used in the final rate calculation. Remand Results at 22. Plaintiffs seek review of the reduced rate. The court affirms Commerce's rate because Commerce adequately explained why the 137.65% rate is not punitive but is a reasonable calculation for the all-others companies.

We have jurisdiction pursuant to Section 516A(2)(B)(i) of the Tariff Act of 1930, as amended, 19 U.S.C. § 1516a(2)(B)(i) (2006) and 28 U.S.C. § 1581(c).3

BACKGROUNDS4

Commerce designated the three largest exporters of extruded aluminum from China as mandatory respondents in this investigation. Maclean-Fogg I, 836 F.Supp.2d at 1370. When the mandatory respondents failed to cooperate, Commerce resorted to adverse facts available to calculate their CVD rate, with a resulting rate of 374.15%. Id. at 1370-71; 19 U.S.C. § 1677f-1(e)(2). Two companies asked for and received voluntary respondent status. After its investigation of these respondents, Commerce calculated final voluntary respondent CVD rates which ranged from 8%-10%. Finally, pursuant to the controlling statute and regulations, Commerce averaged the rates calculated for the mandatory respondents and arrived at a rate of 374.15% for the remaining companies, otherwise known as the all-others companies. Maclean-Fogg I, 836 F.Supp.2d at 1371; see 19 C.F.R. § 351.204(d)(3).

Plaintiffs sought review, claiming that the statutory language in Section 1671d unambiguously called for the all-others rate to be calculated using only individually investigated respondents, which in this case, Plaintiffs claimed, were the voluntary respondents because those were the only respondents who cooperated with Commerce's investigation. Maclean-Fogg I...

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