Golden Dragon Precise Copper Tube Grp., Inc. v. United States , 2016 CIT 17 ( 2016 )

Slip Op. 16 - 17
UNITED STATES COURT OF INTERNATIONAL TRADE
:
GOLDEN DRAGON PRECISE COPPER :
TUBE GROUP, INC., HONG KONG GD :
TRADING CO., LTD., GOLDEN :
DRAGON HOLDING (HONG KONG) :
INTERNATIONAL, LTD., and :
GD COPPER (U.S.A.) INC., :
:
Plaintiffs, :
:
v. : Before: R. Kenton Musgrave, Senior Judge
:
UNITED STATES, : Consol. Court No. 14-00116
:
Defendant, :
:
and :
:
CERRO FLOW PRODS., LLC, WIELAND :
COPPER PRODUCTS, LLC, MUELLER :
COPPER TUBE PRODUCTS, INC, and :
MUELLER COPPER TUBE CO., INC., :
:
Defendant-Intervenors. :
:
OPINION AND ORDER
[Granting defendant’s partial consent motion for voluntary remand of final results of
redetermination.]
Dated: February 22, 2016
Kevin M. O’Brien, Christine M. Streatfeild, and Yi Fang, Baker & McKenzie, LLP, of
Washington DC, for the plaintiffs.
Michael D. Snyder, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice, of Washington, D.C., for the defendant. With him on the brief were
Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Jeanne E. Davidson, Director, and
Claudia Burke, Assistant Director. Of Counsel on the brief was David P. Lyons, Attorney, Office
Consol. Court No. 14-00116 Page 2
of the Chief Counsel for Trade Enforcement and Compliance, U.S. Department of Commerce, of
Washington, D.C.
Thomas M. Beline, Cassidy Levy Kent (USA) LLP, of Washington DC, for the defendant-
intervenors.
Musgrave, Senior Judge: Before this court is a partial consent motion by the
defendant’s Department of Commerce, International Trade Administration (“Commerce”) for
voluntary remand of the Final Results of Redetermination Pursuant to Court Order, Golden Dragon
Precise Copper Tube Group, Inc., et al. v. United States, Court No. 14-00116, ECF No. 82 (Nov.
18, 2015) (“Remand Results”). The Remand Results were filed pursuant to Golden Dragon Precise
Copper Tube Group, Inc. v. United States, 39 CIT ___, Slip Op. 15-89 (Aug. 8, 2015) (“Golden
Dragon II”), remanding the final results of the second administrative review of Seamless Refined
Copper Pipe and Tube From the People’s Republic of China, 79 Fed. Reg. 23324 (Apr. 28, 2014),
subsequently amended, 79 Fed. Reg. 47091 (Aug. 12, 2014) (“Final Results”). Familiarity with the
case is presumed.1 As discussed herein, the court grants Commerce’s request for a voluntary remand
in accordance with the following.
I. Background
Following publication of Commerce’s amended Final Results in August 2014,
Plaintiffs Golden Dragon Precise Copper Tube Group, Inc., Hong Kong GD Trading Co., Ltd.,
Golden Dragon Holding (Hong Kong) International, Ltd., and GD Copper (U.S.A.) Inc. (collectively
1
See Golden Dragon Precise Copper Tube Group, Inc. v. United States, Court No. 14-
00116, Slip Op. 14-85 (July 18, 2014) (“Golden Dragon I”) (remanding to consider ministerial error
allegations ) and Golden Dragon II (remanding to further explain Commerce’s selection of Thailand
as surrogate value country).
Consol. Court No. 14-00116 Page 3
“Golden Dragon”) and Defendant-Intervenors Cerro Flow Products, LLC, Wieland Copper Products,
LLC, Mueller Copper Tube Products, Inc., and Mueller Copper Tube Company, Inc. (collectively
“Mueller”) each challenged several aspects of Commerce’s determination. Golden Dragon’s Public
Motion for Judgment on Agency Record, ECF No. 48; Mueller’s Public Motion for Judgment on
Agency Record, ECF No. 46. This court remanded the Final Results to Commerce for further
explanation regarding the selection of Thailand as the surrogate value country in light of Golden
Dragon’s submissions promoting the selection of Ukraine as the surrogate value country. Golden
Dragon II at 13-14, 16, 23.
Responding to the Golden Dragon II remand order of August 19, 2015, Commerce
filed the Remand Results with the court on November 18, 2015, noting that the department did not
receive any comments on the draft results and that there were no changes from the draft
redetermination to the final redetermination. Remand Results at 1-2. Subsequently, Commerce filed
the present motion for voluntary remand of the Remand Results, stating that Commerce had
inadvertently neglected to notify parties of the remand proceedings by email, contrary to its standard
remand practice. Defendant’s Motion for Voluntary Remand (“Commerce Mot.”), ECF No. 84.
Commerce’s “typical practice” when commencing a remand proceeding is to create
a “service list of interested parties” to receive email notifications when Commerce posts a document
during the remand proceeding. Commerce Mot. at 2, 3. Commerce avers that it failed to create such
a list here, and the agency posits that its “oversight” resulted in parties not receiving email
notification of the draft results or of the deadline for comment submission. Id. at 2. Specifically,
Commerce is moving for a voluntary remand to (1) permit parties to comment on a draft of the
Consol. Court No. 14-00116 Page 4
remand redetermination, and (2) permit Commerce to address those comments in the final remand
redetermination. Id. at 2. In support, Commerce explains that a remand will allow the agency to
comply with “its important policy of giving parties the opportunity to meaningfully participate in the
administrative proceeding”. Id. at 3.
Defendant-Intervenor Mueller opposes the motion. Response in Opposition to
Commerce’s Motion for Voluntary Remand (“Mueller Opp’n”), ECF No. 85.2 Golden Dragon filed
a brief in support of Commerce’s motion one day later. Response to Defendant’s Motion for
Voluntary Remand (“GD Resp.”), ECF No. 86.
II. Jurisdiction and Standard of Review
Jurisdiction is here pursuant to Section 516A(a)(2)(B)(iii) of the Tariff Act of 1930,
as amended, 19 U.S.C. §1516a(a)(2)(B)(iii) and 28 U.S.C. §1581(c). The court will uphold an
administrative determination unless it is “unsupported by substantial evidence on the record, or
otherwise not in accordance with law.” 19 U.S.C. §1516a(b)(1)(B)(i).
III. Discussion
Mueller asserts several arguments opposing Commerce’s remand request. The main
thrust of Mueller’s argument contends that Commerce’s remand request is not appropriate under the
prevailing remand standards and that therefore the remand request is premature. Mueller Opp’n at
2-3. This argument is unpersuasive. In SKF USA Inc. v. United States, the U.S. Court of Appeals
for the Federal Circuit (the “Federal Circuit”) held that when a court reviews an agency action, “the
agency may request a remand (without confessing error) in order to reconsider its previous position.”
2
Mueller’s opposition brief does not include page numbers. For purposes of this opinion,
the court will use the pagination as determined by the CMECF system for page references herein.
Consol. Court No. 14-00116 Page 5
SKF USA Inc. v. United States, 254 F.3d 1022, 1027-30 (Fed. Cir. 2001) (“SKF”). The requesting
agency may wish to “consider further the governing statute, or the procedures that were followed.
[The agency] might simply state that it had doubts about the correctness of its decision”. Id. at 1029.
When an agency requests a remand without confessing error, “the reviewing court has discretion
over whether to remand.” Id. (internal citations omitted). A remand may be refused if the agency’s
request is “frivolous or in bad faith” but a remand is “usually appropriate” if “the agency’s concern
is substantial and legitimate.” Id. Further, the court has considered Commerce’s concerns to be
substantial and legitimate when (1) Commerce provides a compelling justification, (2) the need for
finality does not outweigh the justification, and (3) the scope of the remand request is appropriate.
See Ad Hoc Shrimp Trade Action Comm. v. United States, 37 CIT ___, 882 F. Supp. 2d 1377, 1381
(2013) (“Ad Hoc Shrimp”), referencing Shakeproof Assembly Components Div. of Ill. Tool Works,
Inc. v. United States, 29 CIT 1516, 1521-25, 412 F. Supp.2d 1330, 1336-39 (2005) (“Shakeproof”).
While the court agrees with Mueller that in its motion Commerce does not expressly
invoke one particular remand situation, Commerce states that it “has not concluded that it[s] decision
is incorrect on the merits” and that its basis for requesting a remand is “most similar” to a request
to reconsider its previous position without confessing error. Commerce Mot. at 2-3. The remand
request encompasses Commerce permitting parties to comment on the draft results and later
addressing those comments in the final remand results. Id. at 2. Commerce specifically states that
this request does not stem from an admission of error. Id. at 3. This justification “falls neatly” into
the fourth situation prescribed by the SKF Court. SKF, 254 F.3d at 1029. Further, Mueller does not
persuade the court of any frivolity or bad faith on Commerce’s part. See, e.g., Mueller Resp; cf.
Consol. Court No. 14-00116 Page 6
Commerce Mot. at 3 (“Commerce is requesting the remand in good faith . . . to comply with its
important policy of giving parties the opportunity to meaningfully participate in the administrative
proceeding.”). Therefore, Commerce’s request is appropriate under the SKF standard.
Further, Commerce’s remand request is supported by a “substantial and legitimate”
concern. SKF, 254 F.3d at 1029; Ad Hoc Shrimp, 37 CIT at ___, 882 F. Supp. 2d at 1381.
Commerce is concerned that its failure to follow “typical practice” resulted in the lack of party
comments on the draft results. Commerce Mot. at 1-2. Commerce’s justification for the remand
request is compelling as it has been substantiated by Golden Dragon’s stated intent to file comments
but for Commerce’s “oversight”. GD Resp. at 2. The need for finality does not outweigh
Commerce’s justification for the remand request because the agency has not yet had the opportunity
to consider party comments on its draft results. Mueller argues that this remand will result in “two
rounds of briefing (one before [Commerce] and another before the [c]ourt).” Mueller Opp’n at 3.
However, a “brief remand” to consider comments which are allegedly forthcoming during the normal
course of Commerce’s proceedings is not outweighed by Mueller’s “concern”: the argument in fact
describes what the usual remand process entails. Moreover, “the need for an agency to adequately
address a seeming departure from past practice -- irrespective of the cause of such departure -- is
itself a significant concern weighing in favor of voluntary remand.”3 Shakeproof, 29 CIT at 1523,
3
Commerce’s “typical practice” of using an email service list to keep interested parties
informed of updates to the remand proceeding may have risen to the level of an agency action which
has become an established “agency practice” that, without notification of change, would lead a party
to reasonably expect adherence to the practice. See Ranchers-Cattlemen Action Legal Foundation
v. United States, 23 CIT 861, 884-85 (1999). Without further briefing on the specific issue, the court
is unprepared to categorically state that Commerce’s remand proceeding warrants such a
characterization, but the likelihood of that determination supports the court’s position here.
Consol. Court No. 14-00116 Page 7
412 F. Supp. 2d at 1337. Finally, the scope of the request, permitting parties to comment on the draft
redetermination results and to respond to those comments in the final redetermination, is appropriate.
See, e.g., Ad Hoc Shrimp, 37 CIT at ___, 882 F. Supp. 2d at 1381 (granting a remand request to
address “certain information addressed to a discrete material issue” after finding said scope
“reasonable and appropriate”); cf. Corus Staal BV v. United States, 29 CIT 777, 781-82, 387 F. Supp.
2d 1291, 1296-97 (2005) (Commerce did not give sufficient reason for remand and the court
exercised discretion to deny remand request) (internal citations omitted). Accordingly, the court
finds that Commerce’s request for a voluntary remand is based on a substantial and legitimate
concern.
Mueller asserts several other arguments for denying Commerce’s motion, but none
are persuasive here. Mueller contends that granting the remand request would be an unnecessary
waste of the parties’ resources. Mueller Opp’n at 3. As discussed above, Mueller’s concern for
expediency is well-taken, but the court perceives no reason to depart from the normal remand
process involving notice and comment. It does not appear that the remand will result in an
unreasonable delay, but it will enable Commerce to continue to follow its typical practice of
considering party comments in draft result redeterminations.
Mueller further contends that there is no indication that Golden Dragon wished to
comment on the draft results prior to publication of the final Remand Results.4 Mueller Opp’n
4
Mueller asserts that Golden Dragon “should have been looking” for the draft
redetermination results prior to the court-imposed deadline. Mueller Opp’n at 6. The court agrees
that given the unchanged deadline for Commerce to file the Remand Results, Golden Dragon
presumably knew that draft results would likely be available for comment prior to the Remand
Results filing deadline. However, the court also observes that given Commerce’s break with its
(continued...)
Consol. Court No. 14-00116 Page 8
at 3, 6. However, Mueller’s contention is dispelled by Golden Dragon’s stated intent to file
comments on the draft results. GD Resp. at 2. Golden Dragon’s averments affirm Commerce’s
concern that Golden Dragon intended to file comments and was not notified in the usual manner in
order to do so. Id.; Commerce Mot. at 2.
Mueller also attempts to reframe Commerce’s motion for voluntary remand as a
“motion to correct for a procedural due process defect in its proceeding.” Mueller Opp’n at 4.
Mueller argues that there is no statutory duty to publish a draft remand, and that Commerce is not
statutorily required to permit parties to comment on the draft remand results. Id. While Mueller
appropriately characterizes Commerce’s remand commentary process as not statutorily required,
Commerce is permitted to establish remand procedures encouraging parties to meaningfully
participate in the administrative proceeding. Vermont Yankee Nuclear Power Corp. v. Natural
Resources Def. Council, Inc., 435 U.S. 519, 543-544 (1978) (“absent constitutional constraints or
extremely compelling circumstances the administrative agencies should be free to fashion their own
rules of procedure and to pursue methods of inquiry capable of permitting them to discharge their
multitudinous duties”) (internal quotations omitted). Notably, Commerce’s motion does not attempt
to establish such a duty, nor does it seek a remand based on a defect in its procedural due process.
Commerce has not concluded that its remand is based on any error, procedural or otherwise.
4
(...continued)
“typical practice” and Golden Dragon’s averment that it intended to file comments on the draft
results, coupled with the further averment that Golden Dragon was never made aware of the draft
results through its later-in-time communications with Commerce (GD Resp. at 3), this case would
be best served by permitting Commerce to solicit and address comments to the draft results by
interested parties as requested by Commerce.
Consol. Court No. 14-00116 Page 9
Commerce Mot. at 3. Instead, Commerce requests a remand squarely within the bounds afforded
by SKF. Mueller’s argument is therefore unpersuasive.
Finally, the court is mindful of the unspoken elements of the exhaustion doctrine
underlying this motion. The exhaustion doctrine generally provides that “no one is entitled to
judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been
exhausted.” Consol. Bearings Co. v. United States, 348 F.3d 997, 1003 (Fed. Cir. 2003), quoting
McKart v. United States, 395 U.S. 185, 193 (1969) (internal quotations and citations omitted). It is
a well-settled principle of administrative law that a “reviewing court usurps the agency’s function
when it sets aside the administrative determination upon a ground not theretofore presented and
deprives the [agency] of an opportunity to consider the matter, make its ruling, and state the reasons
for its action”, Unemployment Compensation Comm’n of Alaska v. Aragon, 329 U.S. 143, 155
(1946), and the court “generally takes a ‘strict view’ of the requirement that parties exhaust their
administrative remedies.” Yangzhou Bestpak Gifts & Crafts Co. v. United States, 716 F.3d 1370,
1381 (Fed. Cir. 2013), quoting Corus Staal BV v. United States, 502 F.3d 1370, 1379 (Fed. Cir.
2007) (citations omitted). Further, the administrative remedy for challenging remand results
generally requires filing comments on draft results at the agency level. Taian Ziying Food Co., Ltd.
v. United States, 37 CIT __, 918 F. Supp. 2d 1345, 1361 (2013), referencing Mittal Steel Point Lisas
Ltd. v. United States, 548 F.3d 1375, 1383-84 (Fed. Cir. 2008) (failure to raise issue in comments
to draft remand was failure to exhaust administrative remedies).
Here, the court finds Commerce’s request for a remand both appropriate and
reasonable. Golden Dragon presumably did not exhaust its administrative remedy of filing
Consol. Court No. 14-00116 Page 10
comments to the draft remand results because it had not received the typical remand proceeding
email notifications from Commerce due to Commerce’s “oversight”. In this instance, in the interest
of protecting administrative authority over determinations and promoting judicial economy5, the
court considers Commerce’s administrative concern to be worthy of remand.
IV. Conclusion
Granting a remand to solicit and incorporate comments from interested parties in
compliance with Commerce’s typical remand procedure is appropriate here because it will conserve
judicial resources and permit Commerce to comply fully with its administrative remand procedures.
The final results of redetermination shall be due March 23, 2016. After filing thereof
with the court, the parties shall confer and report on proceeding further on the case, including a
proposed scheduling order for further comments, if necessary.
So ordered.
Dated: February 22, 2016 /s/ R. Kenton Musgrave
New York, New York R. Kenton Musgrave, Senior Judge
5
See Woodford v. Ngo, 548 U.S. 81, 89 (2006) (the exhaustion doctrine serves the two main
purposes of promoting judicial efficiency and protecting administrative agency authority by
“discouraging disregard of the agency’s procedures”) (internal quotations and brackets omitted).