Itochu Bldg. Prods., Co. v. United States

Slip Op
UNITED STATES COURT OF INTERNATIONAL TRADE
ITOCHU BUILDING PRODUCTS, CO.,
INC.,
Plaintiff,
v.
Before: Mark A. Barnett, Judge
UNITED STATES,
Court No. 15-00009
Defendant.
MID-CONTINENT STEEL & WIRE, INC.,
Defendant-Intervenor.
OPINION AND ORDER
[Plaintiff’s motion is granted and the determination is remanded to the Department of
Commerce for further clarification or revision on the issue of affiliation.]
Dated:$SULO
Ned H. Marshak, Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP, of New
York, NY, argued for plaintiff. With him on the brief were Bruce M. Mitchell, Andrew T.
Schutz, and Kavita Mohan.
David F. D’Alessandris, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice, of Washington, DC, argued for defendant. With him on the brief
were Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Jeanne
Davidson, Director, and Patricia M. McCarthy, Assistant Director. Of Counsel on the
brief were Eric J. Singley, U.S. Department of Justice, and Elika Eftekhari, U.S.
Department of Commerce.
Adam H. Gordon, The Bristol Group PLLC, of Washington, DC, argued for defendant-
intervenor.
Court No. 15-00009 Page 2
Barnett, Judge: In this action, Plaintiff, Itochu Building Products Company, Inc.
(“Plaintiff” or “Itochu”) 1 challenges the final determination of the U.S. Department of
Commerce (“Defendant” or “Commerce”) in the first administrative review of the
antidumping duty order on certain steel nails from the United Arab Emirates (UAE) (“AD
order”). 2 Plaintiff claims that Commerce should not have found affiliation between
Dubai Wire FZE (“Dubai Wire”) and Itochu, and, alternatively, that Commerce should
not have based normal value on third country sales to Canada and should have used
constructed value instead. 3
For the reasons discussed below, the Court remands the determination for
Commerce to clarify and, if necessary, revise its findings on affiliation. The Court defers
ruling on the use of Canadian sales to determine normal value pending the agency’s
determination on remand.
BACKGROUND
On June 28, 2013, Commerce initiated the first administrative review of the
antidumping duty order on Certain Steel Nails from the United Arab Emirates, for the
1 The Court will refer to Plaintiff as Itochu except in direct quotations from the
Administrative Record, where Plaintiff self-identifies as IBP.
2 See Certain Steel Nails from the United Arab Emirates, 79 Fed. Reg. 78,396 (Dep’t
Commerce Dec. 30, 2014) (final results of antidumping duty administrative review;
2011-2013) (“Final Results”), P.R. 198, ECF No. 40 (“Public Joint App.”), Doc. 34 and
accompanying Issues and Decision Mem., A-520-804 (Dec. 30, 2014) (“Issues &
Decision Memo”), available at http://enforcement.trade.gov/frn/summary/uae/2014-
30541-1.pdf (last visited Mar. 16, 2016), P.R. 185, Public Joint App., Doc. 35.
3 See generally Confidential Br. in Supp. of Pl.’s Rule 56.2 Mot. for J. upon the Agency
R. (“Pl.’s Br.”), ECF No. 26.
Court No. 15-00009 Page 3
period of review from November 3, 2011 through April 30, 2013 (“POR”). 4 Commerce
selected Dubai Wire as one of the mandatory respondents. 5 Itochu was the importer of
record for multiple shipments of subject nails from the UAE produced and sold by Dubai
Wire during the POR. 6
On May 28, 2014, Commerce preliminarily determined that Dubai Wire and
Itochu were affiliated parties. 7 On June 18, 2014, Commerce issued the preliminary
results of its review and calculated Dubai Wire’s dumping margin to be 3.88 percent;
however, this calculation was not based on treating Dubai Wire and Itochu as affiliated
due to outstanding questionnaires. 8 The Department indicated its intention to “consider
Dubai Wire’s responses to {those outstanding} questionnaires for the final results.” 9
Subsequently, on October 16, 2014, the Department issued a post-preliminary results
memorandum for Dubai Wire using the additional requested information, recalculating
the antidumping margin to be 18.13 percent. 10 On December 30, 2014, Commerce
4 See Initiation of Antidumping and Countervailing Duty Administrative Reviews and
Request for Revocation in Part, 78 Fed. Reg. 38,924 (Dep’t Commerce June 28, 2013),
P.R. 14, Public Joint App., Doc 1.
5 See Respondent Selection Letter (July 11, 2013), P.R. 16, Public Joint App., Doc. 2.
6 Pl.’s Br. at 1.
7 See generally DOC Affiliation Mem. for Dubai Wire FZE (May 28, 2014)(“Affiliation
Memo”), C.R. 52, ECF No. 39-1 (“Confidential Joint App.”), Doc. 19.
8 Certain Steel Nails from the United Arab Emirates, 79 Fed. Reg. 35,721 (Dep’t
Commerce June 24, 2014) (preliminary results of antidumping duty administrative
review) (“Preliminary Results”) and accompanying Decision Mem., A-520-804 (June 18,
2014) (“Preliminary Memo”), P.R. 94, Public Joint App., Doc. 21.
9 Affiliation Memo at 1-2.
10 Post-Preliminary Results Analysis Mem.; 2011-2013 at 6 (Oct. 16, 2014) (“Post-
Prelim. Memo”), P.R. 164, Public Joint App., Doc. 29, at 6; see also Final Results, 79
Fed. Reg. at 78,397.
Court No. 15-00009 Page 4
issued the Final Results of its review and confirmed that Dubai Wire’s antidumping duty
margin was 18.13 percent. 11
In this case, Itochu challenges Commerce’s finding that Dubai Wire and Itochu
are affiliated and, in the alternative, Commerce’s determination to base normal value on
third country sales to Canada rather than using constructed value. For the reasons
discussed below, the Court remands the determination to Commerce to provide further
explanation of its determination to find Dubai Wire and Itochu to be affiliated or to
otherwise reconsider that determination. The Court defers ruling on the use of
Canadian sales to determine normal value pending the agency’s determination on
remand.
JURISDICTION AND STANDARD OF REVIEW
The court has jurisdiction pursuant to § 516A(a)(2)(B)(i) of the Tariff Act of 1930,
as amended, 19 U.S.C. § 1516a(a)(2)(B)(i) (2012) and 28 U.S.C. § 1581(c) (2012). 12
The court will uphold an agency determination that is supported by substantial
evidence and otherwise in accordance with law. 13 Substantial evidence is “such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” 14 It ‘“requires more than a mere scintilla,” but “less than the weight of the
11 See generally Final Results, 79 Fed. Reg. 78,396 and Issues & Decision Memo.
12 All further citations to the Tariff Act of 1930, as amended, are to Title 19 of the U.S.
Code, 2012 edition.
13 19 U.S.C. § 1516a(b)(1)(B)(i).
14 Huaiyin Foreign Trade Corp. (30) v. United States, 322 F.3d 1369, 1374 (Fed. Cir.
2003) (quoting Consol. Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938)).
Court No. 15-00009 Page 5
evidence.” 15 In determining whether substantial evidence supports Commerce’s
determination, the court must consider “the record as a whole, including evidence that
supports as well as evidence that ‘fairly detracts from the substantiality of the
evidence.’” 16 The court “may not reweigh the evidence or substitute its own judgment
for that of the agency.” 17 In sum, “in order for Commerce's determination to be
sustained, the determination must be reasonable, supported by the record as a whole,
and the grounds that the administrative agency acted upon clearly disclosed.” 18
The Court reviews Commerce’s legal interpretations of the statutes it administers
under the “otherwise in accordance with law” standard. 19 To do so, the Court utilizes
the two-step framework provided in Chevron, U.S.A., Inc. v. Natural Resources Defense
Council, Inc. 20 First, the Court determines “whether Congress has directly spoken to
the precise question at issue.” 21 If Congress’s intent is clear, “that is the end of the
15 Nucor Corp. v. United States, 34 CIT 70, 72, 675 F. Supp. 2d 1340, 1345 (2010)
(quoting Altx, Inc. v. United States, 370 F.3d 1108, 1116 (Fed. Cir. 2004)).
16 Nippon Steel Corp. v. United States, 337 F.3d 1373, 1379 (Fed. Cir. 2003) (quoting
Atlantic Sugar, Ltd. v. United States, 744 F.2d 1556, 1562 (Fed. Cir. 1984)).
17 Usinor v. United States, 28 CIT 1107, 1111, 342 F. Supp. 2d 1267, 1272 (2004)
(citation omitted).
18 Viraj Forgings, Ltd. v. United States, 27 CIT 1472, 1474, 283 F. Supp. 2d 1335, 1338
(2003) (internal citations omitted).
19 Alloy Piping Products, Inc. v. United States, 26 CIT 330, 333-34, 201 F. Supp. 2d
1267, 1271 (2002).
20 467 U.S. 837, 842-45 (1984).
21 Heino v. Shinseki, 683 F.3d 1372, 1377 (Fed. Cir. 2012) (quoting Chevron, 467 U.S.
at 842).
Court No. 15-00009 Page 6
matter.” 22 However, “[i]f the statute is silent or ambiguous,” the Court must determine
“whether the agency’s [action] is based on a permissible construction of the statute.” 23
DISCUSSION
Plaintiff challenges Commerce’s determination that Dubai Wire and Itochu are
affiliated, and, in the alternative, argues that Commerce should not have based normal
value on third country sales to Canada and should have used constructed value
instead.
I. AFFILIATION BETWEEN DUBAI WIRE AND ITOCHU
In its Affiliation Memorandum, issued prior to the Preliminary Results, Commerce
described the relationship between the relevant corporate entities as follows:
IBP {Itochu Building Products, Inc.} is part of the Itochu group of
companies, which includes its sister company PrimeSource, the joint
venture partner with Integrated Business Group USA LLC (IBG), a wholly-
owned subsidiary of DWE {Dubai Wire FZE}. PrimeSource and IBG each
own 50 percent of the joint venture company Progressive Steel and Wire
LLC (PSW), a producer of nails in the United States. The record indicates
that DWE is 100 percent owned by its parent company Dubai Wire
Products Limited (DWP), and DWE owns 100 percent of IBG, a company
formed in November 2011 for the purpose of creating the joint venture
company, PSW, with joint venture partner PrimeSource. DWE stated that
PrimeSource and its sister company IBP are each 80 percent owned by
Itochu International USA (Itochu USA), and Itochu USA’s parent company,
Itochu Corporation (Japan)(Itochu Japan) owns 100 percent of Itochu USA
and 20 percent of both PrimeSource and IBP . . . the record indicates that
the PSW joint venture is 50 percent owned by the DWE business structure
and 50 percent owned by the IBP business structure. 24
22 Id. (quoting Chevron, 467 U.S. at 842-43).
23 Dominion Res., Inc. v. United States, 681 F.3d 1313, 1317 (Fed. Cir. 2012) (citing
Chevron, 467 U.S. at 842-43).
24 Affiliation Memo at 3-4 (internal citations omitted). While some company names were
identified as business proprietary during the administrative review, during the oral
argument in this case, Itochu agreed to the release of this proprietary information. See
Court No. 15-00009 Page 7
Commerce further stated that it considered “DWP, DWE and IBG to be a single
corporate entity” (the “Dubai Wire group”) and “Itochu Japan, Itochu USA, PrimeSource
and IBP to be a single corporate entity” (the “Itochu group”). 25
In the Issues & Decision Memorandum accompanying the Final Results,
Commerce confirmed its determination that the Itochu and Dubai Wire groups were
affiliated through their joint ownership of PSW and cited to the previously issued
Affiliation Memorandum for details on its affiliation determination. 26 Commerce rejected
Plaintiff’s arguments that actual control had to exist for a finding of affiliation pursuant to
19 U.S.C. 1677(33) and explained:
[I]n determining whether control over another person exists in a JV within
the meaning of section 771(33) of the Act, we must only find the potential
to impact decisions concerning the production, pricing, or cost of the
subject merchandise or foreign like product . . . In our Affiliation Memo we
determined that, based on record evidence of ownership of PSW, the
Dubai Wire and IBP corporate entities were in a position to exert control
over each other via the JV, not that they actually exerted control over each
other. 27
Before this Court, Plaintiff does not contest the existence of the joint venture or
that “Itochu and Dubai Wire both were legally in a position to exert control over PSW.” 28
Instead, Plaintiff argues that merely determining the existence of a corporate
Transcript of Oral Argument at 3 (“Oral Arg.”) (Itochu’s counsel stated “as far as we’re
concerned, the names are public”), ECF No. 59. Therefore, brackets have been
removed in the quotation.
25 Id. at 4.
26 Issues & Decision Memo at 6.
27 Id. (emphasis original).
28 Pl.’s Br. at 18.
Court No. 15-00009 Page 8
relationship is not the end of the affiliation analysis. 29 Plaintiff argues that Commerce
has not identified evidence to support its finding and has not addressed the evidence
presented by Dubai Wire and Itochu “demonstrating that {the joint venture} relationship
does not result in a potential to impact decisions.” 30
In its brief to the Court, Plaintiff renews the arguments it made to the agency
below, that “there is no evidence that it had control over the production, pricing, or cost
of nails produced by Dubai Wire,” pointing to facts showing the absence of actual
control. 31 In sum, Itochu claims that the record demonstrates that Dubai Wire dealt with
IBP in an arms-length manner, both before and after the formation of the joint-venture,
and that the sales process between the two companies, including prices paid for
merchandise, was no different than the sales process between IBP and its other
vendors. 32 Additionally, Itochu contends that the record shows that Dubai Wire and IBP
did not share internal information, such as costs, profits or prices to other customers. 33
Finally, Itochu claims that Dubai Wire is only one of IBP’s many vendors and that IBP
sells many different products in the U.S. in addition to nails. 34
Plaintiff argues that the factors above show that Itochu did not exercise control
over or impact Dubai Wire’s production, pricing or cost of subject merchandise. 35
29 Id.
30 Id. at 20-21.
31 Issues & Decision Memo at 5; see also Pl.’s Br. at 21-25.
32 See IBP’s Admin. Case Br. (“IBP’s Case Br.”) at 4-6 (Oct. 31, 2014), C.R. 151, ECF
No. 39-3, Confidential Joint App., Doc. 30.
33 Id. at 4.
34 Id. at 5; see also Pl.’s Br. at 21-25.
35 See generally Pl.’s Br. at 21-26.
Court No. 15-00009 Page 9
Further, Plaintiff notes that Commerce did not sufficiently explain its rationale for finding
affiliation and that the reasoning offered by Defendant in briefing is post hoc
rationalization. 36 Consequently, plaintiff asks the court to reverse Commerce’s finding
on affiliation and remand the issue for further consideration. 37
Defendant and Defendant-Intervenor assert that Commerce’s finding of affiliation
is supported by substantial evidence on the record. 38 Defendant argues that
Commerce’s finding of affiliation was based on the Dubai Wire group and Itochu group’s
“joint ownership of a subsidiary.” 39 Finally, Defendant argues that once Commerce has
made a finding of affiliation, the burden is on the respondent to show that the
relationship did not have the potential to affect the subject merchandise or foreign like
product. 40
The statute defines affiliated persons as, among other things, “two or more
persons directly or indirectly controlling, controlled by, or under common control with,
any person.”41 The statute further states that “a person shall be considered to control
36 Id. at 16-21; Pl.’s Confidential Reply Br. (“Reply”) at 3-5, ECF No. 37.
37 Pl.’s Br. at 26.
38 See generally Def.’s Confidential Opp’n to Pl.’s Rule 56.2 Mot. for J. upon the Agency
R. (“Def’s Opp’n”) at 6-19, ECF No. 35; Confidential Response Br. of Def.-Intervenor
Mid-Continent Steel & Wire, Inc. (“Def.-Intervenor’s Br.”) at 10-15, ECF No. 33.
39 Def.’s Opp’n at 10.
40 Id. at 15.
41 19 U.S.C. § 1677(33)(F).
Court No. 15-00009 Page 10
another person if the person is legally or operationally in a position to exercise restraint
or direction over the other person.”42 Commerce’s regulations provide that:
{i}n determining whether control over another person exists, within the
meaning of section 771(33) of the Act, the Secretary will consider the
following factors, among others: Corporate or family groupings; franchise
or joint venture agreements; debt financing; and close supplier
relationships. The Secretary will not find that control exists on the basis of
these factors unless the relationship has the potential to impact decisions
concerning the production, pricing, or cost of the subject merchandise or
foreign like product. The Secretary will consider the temporal aspect of a
relationship in determining whether control exists; normally, temporary
circumstances will not suffice as evidence of control. 43
In the preamble to these regulations, the Department of Commerce confirmed its
“focus on relationships that have the potential to impact decisions concerning
production, pricing or cost” and that “section 771(33) . . . properly focuses the
Department on the ability to exercise ‘control’ rather than the actuality of control
over specific decisions.” 44 The Department decided that it could not, through
regulation, create a bright-line test for whether control exists because the inquiry
required “fact-specific determinations” and, instead, determined that guidelines
would be established gradually “through the resolution of issues in actual
cases.” 45
In Mitsubishi Heavy Industries v. United States, this court upheld Commerce’s
determination that Mitsubishi and a particular trading company were affiliated pursuant
42 Id. § 1677(33).
43 19 C.F.R. § 351.102(b)(3) (2012) (emphasis added).
44 Antidumping Duties; Countervailing Duties, 62 Fed. Reg. 27,296, 27,297-98 (Dep’t
Commerce May 19, 1997) (final rule).
45 Id. at 27,298.
Court No. 15-00009 Page 11
to 19 U.S.C. § 1677(33)(F) as a result of their joint venture, MLP, because the trading
company “owned a significant interest in MLP, . . . made substantial loans to MLP” and
because Mitsubishi and the trading company “were the only shareholders of MLP and
had a history of common ownership in various companies suggest[ing] that they worked
together in managing MLP.” 46
Subsequently, the court confirmed Mitsubishi’s approach to analyzing affiliation
through a joint venture, stating that “two elements must be satisfied for affiliation to
exist. First, two parties must be legally or operationally in a position to exercise restraint
or direction over a third party. Second, the relationship with the third party must have
the potential to impact decisions concerning the production, pricing, or cost of the
subject merchandise.” 47 In TIJID, the court upheld Commerce’s determination that
affiliation did not exist because having a shared officer/board member was not, by itself,
sufficient for the direct or indirect exercise of control, and the joint venture in question
was not involved in sales of the subject merchandise. 48
The Court will uphold a Commerce determination provided the path to that
determination is reasonably discernable from the determination itself. 49 In its review,
the “court must consider whether the decision was based on a consideration of the
46 See 23 CIT 326, 335, 54 F. Supp. 2d 1183, 1192 (1999).
47 TIJID, Inc. v. United States, 29 CIT 307, 314, 366 F. Supp. 2d 1286, 1293 (2005)
(internal citations omitted).
48 TIJID, 29 CIT at 315-16, 366 F. Supp. 2d at 1294.
49 See NMB Singapore Ltd. v. United States, 557 F. 3d 1316, 1319 (Fed. Cir. 2009)
(“Commerce must explain the basis for its decisions; while its explanations do not have
to be perfect, the path of Commerce’s decision must be reasonably discernable to a
reviewing court.”) (internal citations omitted).
Court No. 15-00009 Page 12
relevant factors. . . . [t]he agency must articulate a rational connection between the facts
found and the choice made.” 50 While the agency is not required to “make an explicit
response to every argument made by a party,” it is required to discuss “issues material
to the agency’s determination.” 51 Further, the Court may not accept “post hoc
rationalizations for agency action” and may only sustain the agency’s decision “on the
same basis articulated in the order by the agency itself.”52 Thus, reasoning that is
offered post-hoc, in briefing to the Court or during oral argument, is not properly part of
this Court’s review of the agency’s underlying determination when such reasoning is not
discernable from the record itself.
Here, Commerce examined the corporate relationships between Dubai Wire and
Itochu and found the two companies to be affiliated. Commerce went on, in a single
sentence, to conclude that “the relationship between {the Dubai Wire group} and {the
Itochu group} via the PSW joint venture, which produces identical merchandise in the
United States, has the potential to have an impact on decisions concerning the
production, pricing, or cost of the subject merchandise or foreign like product.” 53 This
Affiliation Memorandum, however, on its face, simply recommended a preliminary
finding of affiliation. 54 While the agency may draw reasonable inferences from the
50 Bowman Transp., Inc. v. Ark. Best Freight System, Inc., 419 U.S. 281, 385-86 (1974)
(internal citations omitted).
51 Timken U.S. Corp. v. United States, 421 F. 3d 1350, 1354 (Fed. Cir. 2005).
52 Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168-69 (1962).
53 Affiliation Memo at 4.
54 Id. at 1.
Court No. 15-00009 Page 13
evidence, no further analysis of the facts presented or arguments subsequently made to
the agency appears to have occurred in this review.
Following the Preliminary Results and the post-preliminary recalculation of Dubai
Wire’s dumping margin, Plaintiff submitted a case brief to the agency in which it made
the numerous points listed above; asserting, in sum, that there was no actual control
and that the record facts supported a finding of an absence of control. 55 In response, in
its Issues & Decision Memorandum for the Final Results, Commerce simply restated its
finding that “based on record evidence of ownership of PSW, the Dubai Wire and IBP
corporate entities were in a position to exert control over each other via the JV.”56
However, merely finding proof of 50-50 ownership of the joint venture is insufficient for a
finding of control pursuant to 19 CFR § 351.102(b)(3). 57
Pursuant to 19 U.S.C. § 1677(33)(F), co-ownership of the joint venture is
sufficient to establish that the Itochu and Dubai Wire groups are legally or operationally
in a position to exert control over PSW. Commerce’s regulation, however, also requires
Commerce to find that the relationship has the potential to impact decisions concerning
the production, pricing, or cost of the subject merchandise or the foreign like product. 58
In order to address this regulatory standard, Commerce needed to explain how the
record supports its finding in the face of the contrary record evidence relied upon by
Itochu. It did not do so.
55 See IBP’s Case Br. at 4-6.
56 Issues & Decision Memo at 6.
57 See TIJID, 29 CIT at 314, 366 F. Supp. 2d at 1293.
58 See 19 CFR § 351.102(b)(3).
Court No. 15-00009 Page 14
Before the Court, the Defendant claims that the reference to the fact that PSW
“produces identical merchandise in the United States,” provides the path of reasoning
for Commerce’s conclusion. 59 While Commerce may find it to be relevant that PSW
produces identical merchandise in the United States, that factual statement, by itself, is
insufficient to provide a path of reasoning as to how the relationship has the potential to
impact decisions concerning the production, pricing, or cost of the subject merchandise
or foreign like product. The merchandise produced by PSW is neither subject
merchandise nor foreign like product. It is the role of the agency, not the agency’s
counsel or the Court, to provide the path of reasoning that explains the relevance of
PSW’s production of identical merchandise in the United States to the production,
pricing, or cost of Dubai Wire’s subject merchandise or foreign like product, and the
agency will have the opportunity to do that on remand. The determination will be
remanded to Commerce so that the agency may further explain or, if needed, revise, its
finding of affiliation.
II. CANADA AS THE THIRD COUNTRY MARKET
In this case, Plaintiff has made clear that its argument that the agency’s finding
that Canadian sales were viable is not in accordance with law is an alternative
argument, made in case the Court affirms the agency’s determination that Dubai Wire
and Itochu are affiliated. 60 At this time, the Court is remanding that determination for
further explanation or revision. The Court has not affirmed the agency’s affiliation
59 Affiliation Memo at 4; see also Oral Arg. at 30.
60 Pl.’s Confidential Rule 56.2 Mot. for J. upon the Agency R., ECF No. 26.
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finding and, on remand, Commerce may decide to alter that determination, obviating the
need to address this issue. Thus, in order to avoid an unnecessary, advisory ruling on
this issue, the Court defers ruling on Plaintiff’s alternative argument pending the remand
determination. 61
CONCLUSION
In accordance with the foregoing, it is hereby
ORDERED that Commerce’s Final Determination is remanded to Commerce to
further explain its affiliation finding with respect to Dubai Wire, as discussed herein, or to
alter that determination; it is further
ORDERED that the Court defers ruling on the third country viability issue pending
the remand determination; it is further
ORDERED that Commerce shall file its remand results on or before July 1,
2016; and it is further
ORDERED that, notwithstanding USCIT Rule 56.2(h)(1)-(4), the agency must file
an index of any new administrative record documents within 7 days of the date of filing
the remand determination; and it is further
61 United States v. Roy Fruehauf, 365 U.S. 146, 157 (1961) (a federal court will not give
an advisory opinion or an “advance expression[ ] of legal judgment upon issues which
remain unfocused because they are not pressed before the Court with that clear
concreteness provided when a question emerges . . . [as] necessary for decision”);
Verson, A Division of Allied Prods. Corp. v. United States, 22 CIT 151, 153, 5 F. Supp.
2d 963, 966 (1998) (“a federal court does not have the power to render an advisory
opinion on a question simply because [it] may have to face the same question in the
future”) (citations omitted).
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ORDERED that parties may file and serve comments in opposition to the remand
determination within 14 days after the date of filing the remand determination; and it is
further
ORDERED that defendant and other parties supporting the remand
determination may file and serve responsive comments within 14 days after the filing of
comments in opposition to the remand determination; and it is further
ORDERED that parties must file a joint appendix of any record documents cited
in their comments within 7 days of the filing of responsive comments; and it is further
ORDERED that any comments or responsive comments must not exceed 2500
words.
/s/ Mark A. Barnett
Mark A. Barnett, Judge
Dated: $SULO
New York, New York