MacLean-Fogg Co. v. United States
2012 Ct. Intl. Trade LEXIS 147
| Ct. Intl. Trade | 2012Background
- This case returns to the court after remand in MacLean-Fogg Co. v. United States, 36 CIT __, 853 F. Supp. 2d 1336 (2012) addressing the all-others countervailing duty rate.
- Commerce recalculated the all-others CVD rate to 137.65% on remand, aligning with the mandatory respondents’ preliminary rate.
- The all-others rate previously was 374.15% calculated using adverse facts available, with 19 C.F.R. § 351.204(d)(3) excluding voluntary respondents from the all-others calculation.
- MacLean-Fogg I II III established that the rate must be reasonable, not punitive, and explained the rationale for excluding voluntary respondents.
- Commerce explained the all-others rate is remedial and not punitive because it excludes programs used only by voluntary respondents and uses fewer subsidy programs than the final mandatory rate.
- Plaintiffs challenged the geographic footprint and program-selection basis of the all-others rate; court finds Commerce’s record-based, reasonable approach supported by remand explanations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 137.65% all-others rate is remedial, not punitive | MacLean-Fogg argues rate uses too many programs and is punitive | Rate is remedial; excludes voluntary programs and uses fewer subsidy programs | Affirmed: rate deemed reasonable and remedial. |
| Whether using mandatory respondents’ rate is reasonable for all-others | Representative adequacy of mandatory respondents questioned | Mandatory respondents represent the market; rate logically connected | Affirmed: methodology reasonable given representativeness. |
| Whether location-specific subsidy programs were improperly included | Geographic footprint limits not considered; programs from Liaoyang/Wenzhou misused | Programs relied upon are limited; addresses may misstate facility locations | Affirmed: record-supported assumption of using limited programs appropriate. |
| Whether Commerce’s remand rationale complies with MacLean-Fogg I/II/III | Remand rationale insufficient to uphold final rate | Remand explanations adequately connect rate to remedial purpose | Affirmed: remand explanations uphold reasonableness. |
| Whether substantial-evidence standard is met on remand | Record lacks basis for revised rate | Record supports reasonable rate under substantial-evidence standard | Affirmed: Commerce’s remand results sustainable. |
Key Cases Cited
- Universal Camera Corp. v. NLRB, 340 U.S. 474 (1951) (substantial evidence standard governs review)
- National Cable & Telecommunications Ass’n v. Brand X Internet Servs., 545 U.S. 967 (2005) (court may uphold reasonable agency action under deferential review)
- MacLean-Fogg Co. v. United States, 836 F. Supp. 2d 1367 (2012) (remand required where rate connection to remedial/punitive distinction unclear)
- MacLean-Fogg Co. v. United States, 853 F. Supp. 2d 1253 (2012) (MacLean-Fogg II—preliminary rate review on remand)
- MacLean-Fogg Co. v. United States, 853 F. Supp. 2d 1336 (2012) (MacLean-Fogg III—remand results sustaining final rate)