Slip Op. 16 - 48
UNITED STATES COURT OF INTERNATIONAL TRADE
: DIAMOND SAWBLADES : MANUFACTURERS’ COALITION, : : Plaintiff, : : v. : Before: R. Kenton Musgrave, Senior Judge : UNITED STATES, : Court No. 13-00168 : Defendant, : : and : : BEIJING GANG YAN DIAMOND : PRODUCTS COMPANY, and GANG : YAN DIAMOND PRODUCTS, INC., : : Intervenor-defendants. : :
OPINION AND ORDER
[Sustaining voluntary remand results rescinding determination to partially revoke the antidumping duty order on diamond sawblades and parts thereof from the People’s Republic of China.]
Decided: May 11, 2016
Daniel B. Pickard and Maureen E. Thorson, Wiley Rein LLP, of Washington, DC, for the plaintiff.
Alexander V. Sverdlov, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, for the defendant. With him on the brief were Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Jeanne E. Davidson, Director, and Franklin E. White, Jr., Assistant Director. Of Counsel on the brief was Aman Kakar, Attorney, Office of the Chief Counsel for Trade Enforcement & Compliance, U.S. Department of Commerce, of Washington, DC.
Jeffrey S. Neeley and Michael S. Holton, Husch Blackwell, LLP, of Washington, DC, for the intervenor-defendants. Court No. 13-00168 Page 2
Musgrave, Senior Judge: Now before the court are the results of remand (“Remand”)
of the administrative determination to revoke in part the antidumping duty order on diamond
sawblades from the People’s Republic of China (“PRC”) with respect to subject merchandise
produced or exported by the “ATM entity” of which the defendant-intervenors Beijing Gang Yan
Diamond Products Company and Gan Yan Diamond Products Company are a part. Familiarity with
the prior opinion, 39 CIT ___, Slip Op. 15-92 (Aug. 8, 2015), is presumed.
Regarding the determination of the International Trade Administration, U.S.
Department of Commerce (“Commerce”), to revoke the antidumping duty order as to the ATM
entity, the defendant requested remand voluntarily. The original determination to revoke had been
the logical consequence of a certain section 129 proceeding that was concerned with implementing
an adverse World Trade Organization panel report disrespecting Commerce’s application of zeroing
methodology to the ATM entity during the investigation.1 During that investigation, the ATM entity
had been deemed eligible for a rate separate from that of the PRC-wide entity. Subsequent litigation,
however, resulted in alteration of the ATM entity’s separate rate eligibility, i.e., its status, and
because the ATM entity’s status (quo ante) was the legal predicate for the determination to revoke
(via the matter of the section 129 proceeding that the plaintiff here challenged), the ATM entity’s
altered status necessarily triggered the defendant’s request to re-evaluate the revocation
determination. The matter was thus remanded for further consideration. See generally Slip Op. 15-
92 at 34-36.
1 See Certain Frozen Warmwater Shrimp from the PRC and Diamond Sawblades and Parts Thereof From the PRC (notice of section 129 implementation and partial revocation), 78 Fed. Reg. 18958 (Mar. 28, 2013); see also Uruguay Round Agreements Act, Pub. L. No. 103-465, §129, 1087 Stat. 4809, 4836-39 (1994), 19 U.S.C. § 3538. Court No. 13-00168 Page 3
As part of its remand, Commerce determined that the basis for the partial revocation
of the antidumping duty order was no longer valid and it reinstated the antidumping duty order
covering diamond sawblades from the PRC as to the ATM entity. Remand at 3-4. Perhaps coming
as no surprise, this finding meets no new objection from the defendant-intervenors; their comments
on the remand results refer to their position as expressed in their prior briefs before the court on the
legality of the approach Commerce has taken; to which the plaintiff, Diamond Sawblades
Manufacturers’ Coalition (“DSMC”), responds by also incorporating by reference their various prior
briefs and reiterating that the new determination, finding that revocation of the antidumping duty
order is unsupported, replaced the prior determination to revoke as a matter of law. See Def-Ints’
Cmts on Final Results of Redetermination; DSMC’s Resp. to Final Results of Redetermination. The
prior opinion having addressed such argumentation previously, more need not be said here.
In their comments on the remand results, the DSMC object to how Commerce has
chosen to implement its determination. In particular, they claim the Remand should have been
accompanied by simultaneous cash deposit instructions to U.S. Customs and Border Protection
(“Customs”) to collect prospective and retroactive cash deposits on ATM’s entries. Pl’s Cmts on
Final Results of Redetermination. Their arguments on prospective collection are persuasive.
Apart from the court’s inherent power to maintain the status quo pending judicial
review, see Scripps-Howard Radio v. FCC, 316 U.S. 4 (1942), Congress has provided an elaborate
mechanism in the unfair trade laws that requires the operation of a final administrative determination
thereof to proceed unimpeded unless and until that operation is enjoined and/or the original
determination is superceded, see e.g. 19 U.S.C. §1516a, and as previously observed (in these and Court No. 13-00168 Page 4
other matters, passim), a redetermination by the agency has the effect of a new administrative order
that replaces the prior determination as a matter of law. E.g., Decca Hospitality Furnishings, LLC
v. United States, 30 CIT 357, 363, n.11, 427 F. Supp. 2d 1249, 1255, n.11 (2006). Unless that new
final determination is clearly a decree nisi, it has immediate legal consequences.
Commerce’s analysis of case law acknowledges the duty to act upon and implement
a remand determination expeditiously, but it also wrestles, Hamlet-like, with certain facially-
conflicting statements from an earlier Diamond Sawblades opinion as to whether, vel non, it must
await the final resolution of any appeal in order to act.2 In the end, Commerce advanced a
conservative interpretation of case law to argue for restricting Decca and Diamond Sawblades to
their respective facts. Def’s Resp. to Cmts at 6-8. However, it is also clear that, subsequent to those
decisions, the Court of Appeals for the Federal Circuit has clarified that a remand determination
becomes effective on the date that the agency files its determination with the court, not when the
court sustains the remand determination. Diamond Sawblades Mfrs. Coal. v. United States, 626 F.3d
1374, 1378 n.1 (Fed. Cir. 2010). 19 U.S.C. § 1673d(d) requires that notification of a determination
be made “[w]henever [Commerce] . . . makes a determination” under section 1673d(a), which
includes a final redetermination. See id. “[T]he statute does not require or contemplate that the
notification will issue only after court review of the [agency]’s remand determination.” Id.3
2 See, e.g.,Def’s Resp.
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Slip Op. 16 - 48
UNITED STATES COURT OF INTERNATIONAL TRADE
: DIAMOND SAWBLADES : MANUFACTURERS’ COALITION, : : Plaintiff, : : v. : Before: R. Kenton Musgrave, Senior Judge : UNITED STATES, : Court No. 13-00168 : Defendant, : : and : : BEIJING GANG YAN DIAMOND : PRODUCTS COMPANY, and GANG : YAN DIAMOND PRODUCTS, INC., : : Intervenor-defendants. : :
OPINION AND ORDER
[Sustaining voluntary remand results rescinding determination to partially revoke the antidumping duty order on diamond sawblades and parts thereof from the People’s Republic of China.]
Decided: May 11, 2016
Daniel B. Pickard and Maureen E. Thorson, Wiley Rein LLP, of Washington, DC, for the plaintiff.
Alexander V. Sverdlov, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, for the defendant. With him on the brief were Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Jeanne E. Davidson, Director, and Franklin E. White, Jr., Assistant Director. Of Counsel on the brief was Aman Kakar, Attorney, Office of the Chief Counsel for Trade Enforcement & Compliance, U.S. Department of Commerce, of Washington, DC.
Jeffrey S. Neeley and Michael S. Holton, Husch Blackwell, LLP, of Washington, DC, for the intervenor-defendants. Court No. 13-00168 Page 2
Musgrave, Senior Judge: Now before the court are the results of remand (“Remand”)
of the administrative determination to revoke in part the antidumping duty order on diamond
sawblades from the People’s Republic of China (“PRC”) with respect to subject merchandise
produced or exported by the “ATM entity” of which the defendant-intervenors Beijing Gang Yan
Diamond Products Company and Gan Yan Diamond Products Company are a part. Familiarity with
the prior opinion, 39 CIT ___, Slip Op. 15-92 (Aug. 8, 2015), is presumed.
Regarding the determination of the International Trade Administration, U.S.
Department of Commerce (“Commerce”), to revoke the antidumping duty order as to the ATM
entity, the defendant requested remand voluntarily. The original determination to revoke had been
the logical consequence of a certain section 129 proceeding that was concerned with implementing
an adverse World Trade Organization panel report disrespecting Commerce’s application of zeroing
methodology to the ATM entity during the investigation.1 During that investigation, the ATM entity
had been deemed eligible for a rate separate from that of the PRC-wide entity. Subsequent litigation,
however, resulted in alteration of the ATM entity’s separate rate eligibility, i.e., its status, and
because the ATM entity’s status (quo ante) was the legal predicate for the determination to revoke
(via the matter of the section 129 proceeding that the plaintiff here challenged), the ATM entity’s
altered status necessarily triggered the defendant’s request to re-evaluate the revocation
determination. The matter was thus remanded for further consideration. See generally Slip Op. 15-
92 at 34-36.
1 See Certain Frozen Warmwater Shrimp from the PRC and Diamond Sawblades and Parts Thereof From the PRC (notice of section 129 implementation and partial revocation), 78 Fed. Reg. 18958 (Mar. 28, 2013); see also Uruguay Round Agreements Act, Pub. L. No. 103-465, §129, 1087 Stat. 4809, 4836-39 (1994), 19 U.S.C. § 3538. Court No. 13-00168 Page 3
As part of its remand, Commerce determined that the basis for the partial revocation
of the antidumping duty order was no longer valid and it reinstated the antidumping duty order
covering diamond sawblades from the PRC as to the ATM entity. Remand at 3-4. Perhaps coming
as no surprise, this finding meets no new objection from the defendant-intervenors; their comments
on the remand results refer to their position as expressed in their prior briefs before the court on the
legality of the approach Commerce has taken; to which the plaintiff, Diamond Sawblades
Manufacturers’ Coalition (“DSMC”), responds by also incorporating by reference their various prior
briefs and reiterating that the new determination, finding that revocation of the antidumping duty
order is unsupported, replaced the prior determination to revoke as a matter of law. See Def-Ints’
Cmts on Final Results of Redetermination; DSMC’s Resp. to Final Results of Redetermination. The
prior opinion having addressed such argumentation previously, more need not be said here.
In their comments on the remand results, the DSMC object to how Commerce has
chosen to implement its determination. In particular, they claim the Remand should have been
accompanied by simultaneous cash deposit instructions to U.S. Customs and Border Protection
(“Customs”) to collect prospective and retroactive cash deposits on ATM’s entries. Pl’s Cmts on
Final Results of Redetermination. Their arguments on prospective collection are persuasive.
Apart from the court’s inherent power to maintain the status quo pending judicial
review, see Scripps-Howard Radio v. FCC, 316 U.S. 4 (1942), Congress has provided an elaborate
mechanism in the unfair trade laws that requires the operation of a final administrative determination
thereof to proceed unimpeded unless and until that operation is enjoined and/or the original
determination is superceded, see e.g. 19 U.S.C. §1516a, and as previously observed (in these and Court No. 13-00168 Page 4
other matters, passim), a redetermination by the agency has the effect of a new administrative order
that replaces the prior determination as a matter of law. E.g., Decca Hospitality Furnishings, LLC
v. United States, 30 CIT 357, 363, n.11, 427 F. Supp. 2d 1249, 1255, n.11 (2006). Unless that new
final determination is clearly a decree nisi, it has immediate legal consequences.
Commerce’s analysis of case law acknowledges the duty to act upon and implement
a remand determination expeditiously, but it also wrestles, Hamlet-like, with certain facially-
conflicting statements from an earlier Diamond Sawblades opinion as to whether, vel non, it must
await the final resolution of any appeal in order to act.2 In the end, Commerce advanced a
conservative interpretation of case law to argue for restricting Decca and Diamond Sawblades to
their respective facts. Def’s Resp. to Cmts at 6-8. However, it is also clear that, subsequent to those
decisions, the Court of Appeals for the Federal Circuit has clarified that a remand determination
becomes effective on the date that the agency files its determination with the court, not when the
court sustains the remand determination. Diamond Sawblades Mfrs. Coal. v. United States, 626 F.3d
1374, 1378 n.1 (Fed. Cir. 2010). 19 U.S.C. § 1673d(d) requires that notification of a determination
be made “[w]henever [Commerce] . . . makes a determination” under section 1673d(a), which
includes a final redetermination. See id. “[T]he statute does not require or contemplate that the
notification will issue only after court review of the [agency]’s remand determination.” Id.3
2 See, e.g.,Def’s Resp. to Cmts at 6, quoting Diamond Sawblades Manufacturers’ Coalition v. United States, 33 CIT 1422, 650 F. Supp. 2d 1331, 1352 (2009) (“a remand determination becomes legally operative on the date that this Court issues a final decision sustaining it”). 3 If a party believes it would be aggrieved by the immediate effect of the new order reached in consequence of redetermination, that party is not without a legal remedy, e.g., moving to enjoin operation of the order pending judicial review thereof. See, e.g., 28 U.S.C. §1651; USCIT R. 65(a); Scripps-Howard Radio, supra. Court No. 13-00168 Page 5
It is understandable that Commerce would seek to proceed with caution concerning
a matter under appeal, its position here being that issuing instructions to Customs before the court
has had a chance to evaluate the Remand would seem premature, see, e.g., Remand at 5 (“[t]his final
remand redetermination alone does not replace the Implemented PRC Section 129 Determination”)
(italics added), but in accordance with the Decca and Federal Circuit elucidation, upon the filing of
the redetermination with the court the power and duty to issue to Customs instructions on the cash
deposit rate lawfully rested with Commerce, as argued by the DSMC, especially given that “[t]he
central aim of the antidumping laws is to protect domestic industries from foreign manufactured
goods that are sold injuriously in the United States at prices below the fair market value of those
goods in their home market.” United States Steel Corp. v. United States, 33 CIT 984, 985, 637 F.
Supp. 2d 1199, 1204 (2009). See also Sango International, L.P. v. United States, 484 F.3d 1371,
1372 (Fed. Cir. 2007); Nucor Fastener Division v. United States, 34 CIT 1380, 1381, 751 F. Supp.
2d 1327, 1329 (2010).
As to whether Commerce should have instructed Customs to collect cash deposits
retroactive to the effective date of reinstatement of the antidumping duty order, i.e., on merchandise
entered on or after March 22, 2013, the defendant argues the DSMC present no basis to believe that
Customs will not be able to recover the ultimate antidumping duty liability of the ATM entity once
the remand in this case is adjudicated and that the adequate protection of the United States Treasury
is “for the [g]overment to worry about”, and in this proceeding, at least, the court perceives no reason
not to defer to Commerce’s position on the point. Court No. 13-00168 Page 6
The Remand will be sustained and judgment entered to reflect the foregoing.
/s/ R. Kenton Musgrave R. Kenton Musgrave, Senior Judge
Dated: May 11, 2016 New York, New York