Fedmet Res. Corp. v. United States , 70 F. Supp. 3d 1279 ( 2015 )

Slip Op. 15-48
UNITED STATES COURT OF INTERNATIONAL TRADE
FEDMET RESOURCES CORPORATION,
Plaintiff,
v.
Before: Nicholas Tsoucalas,
UNITED STATES,
Senior Judge
Defendant.
Court No. 12-00215
ANH REFRACTORIES COMPANY,
RESCO PRODUCTS, INC., AND
MAGNESITA REFRACTORIES
COMPANY,
Defendant-Intervenors.
OPINION
[Commerce’s Final Redetermination is sustained.]
Dated: May 22, 2015
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.
Court No. 12-00215 Page 2
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).
Court No. 12-00215 Page 3
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.
Court No. 12-00215 Page 4
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: May 22, 2015
New York, New York