Maclean–Fogg Co. v. United States

Decision Date30 November 2012
Citation885 F.Supp.2d 1337
PartiesMacLEAN–FOGG CO., et al., Plaintiffs, v. UNITED STATES, Defendant, and Aluminum Extrusions Fair Trade Committee, Defendant–Intervenors.
CourtU.S. Court of International Trade


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 PlaintiffIntervenors 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 PlaintiffIntervenor 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 DefendantIntervenor Aluminum Extrusions Fair Trade Committee.


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 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


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;see19 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 held that Section 1671d was ambiguous with regard to the permitted data source and that Commerce was permitted to use the AFA rate in calculating the all-others rate, provided it did so in a reasonable manner. Maclean–Fogg I, 836 F.Supp.2d at 1373–74. Nonetheless, the court remanded the all-others rate to Commerce for reconsideration because Commerce had failed to articulate a logical connection between the AFA mandatory respondent rate and the all-others companies. Id. at 1376.

A subsequent opinion concluded that Commerce's preliminary all-others rate in the preliminary determination was also subject to review under the same reasonableness standard because it had legal effect on the entries made during the interim time period between the issuance of the preliminary and final CVD rates, both as a cash deposit rate and, if an annual review was sought, as a cap on the final rate for those particular entries. MacLean–Fogg Co. v. United States, 36 CIT ––––, 853 F.Supp.2d 1253, 1256 (2012) (“MacLean–Fogg II ”). Thus MacLean–Fogg II required consideration of the lawfulness of the preliminary rate once Commerce provided a reasonable final CVD rate. Id.

Commerce then provided its first set of remand results. See MacLean–Fogg III, 853 F.Supp.2d at 1338. In these results, Commerce did not recalculate the all-others rate, but rather, provided data showing that the rate calculated for the mandatory respondents is logically connected to the all-others companies because the mandatory respondents comprise a significant portion of the Chinese extruded aluminum producers and exporters and thus are representative of the Chinese extruded aluminum industry as a whole. In contrast, the all-others companies and voluntary respondents make up a fraction of the market. Therefore, and the court agreed, it was reasonable to use the mandatory respondents' rate in Commerce's calculation because the mandatory respondents were more representative of business practices in the Chinese extruded aluminum market. Id. at 1341.MacLean–Fogg III concluded that Commerce had provided sufficient reasoning for excluding voluntary respondents' rates from the all-others rate calculation. Nonetheless, MacLean–Fogg III also concluded that Commerce failed to explain how the all-others rate was remedial and not punitive when it assumed use of all subsidy programs across the PRC while at the same time stating that the all-others companies were significantly smaller than the mandatory respondents. Id. at 1341–43. Accordingly, the court ordered Commerce to reconsider the all-others rate or further explain its reasoning. Id.

In response to the court's second remand order, Commerce submitted the remand results currently under review. In these remand results, Commerce has chosen to designate the all-others rate as equal to the preliminary rate it calculated for the mandatory respondents: 137.65%. Commerce reasons that because this rate does not utilize the full measure of subsidy programs used to calculate the final 374.15% rate, and excludes all programs that were used only by the voluntary respondents, it is in keeping with the court's order to calculate a rate that is remedial and not punitive. Additionally, by reverting to the preliminary determination rate, Commerce assumed program-specific subsidy rates of 8.54%, which are approximately 2% lower than the final rate calculated for the mandatory respondents. Defendant's Response to Comments Regarding the Second Remand Redetermination, ECF No. 85 at 27–28 (Defendant's Reply”).

Plaintiffs argue that the all-others rate is still punitive because it includes more subsidy programs than the all-others companies could utilize, and is based on high usage rates of the subsidy programs, rates that are not in keeping with historical trends and voluntarily submitted information. Joint Plaintiffs' Comments on Commerce's Second Remand Redetermination, ECF No. 83 at 2–4 (Plaintiffs' Comments). Furthermore, Plaintiffs assert that the reasonableness of the preliminary rate is still under consideration by the court and request an opportunity to further brief their claims once the court has ruled on the Second Remand Determination.Id. at 2 n. 2. Plaintiffs argue that the all-others rate should be based on the rates assessed on voluntary respondents and historical data identified from similar or identical programs. Id. at 36–38.


When reviewing Commerce's determinations in a countervailing duty investigation, the court determines whether they are “unsupported by substantial evidence on the record, or otherwise not in accordance with law.” 19 U.S.C. § 1516a(b)(1)(B)(i). Substantial evidence is evidence which, considering the record as a whole, “a reasonable mind might accept as adequate to support a conclusion.” Universal Camera Corp. v. NLRB, 340 U.S. 474, 477, 491, 71 S.Ct. 456, 95 L.Ed. 456 (1951) (citing Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)). The conclusion Commerce reaches need not be the best or only possible conclusion, merely a reasonable one. See Nat'l Cable & Telecomms. Assn. v. Brand X Internet Servs., 545 U.S. 967, 980, ...

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