Gang Yan Diamond Prods., Inc. v. United States

2015 CIT 127

• Court: United States Court of International Trade
• Decided: November 9, 2015
• Docket: 14-00148
• Status: Published

Opinion

Slip Op. 15 - 127

UNITED STATES COURT OF INTERNATIONAL TRADE

: GANG YAN DIAMOND PRODUCTS, INC., : CLIFF INTERNATIONAL LTD., and : BEIJING GANG YAN DIAMOND : PRODUCTS COMPANY, : : Plaintiffs, : : v. : Before: R. Kenton Musgrave, Senior Judge : UNITED STATES, : Court No. 14-00148 : Defendant, : : and : : DIAMOND SAWBLADES : MANUFACTURERS COALITION, : : Defendant-Intervenors. : :

OPINION

[Remanding third administrative review of antidumping duty order on diamond sawblades and parts thereof from the People’s Republic of China.]

Dated: November 9, 2015

Jeffrey S. Neeley and Michael S. Holton, Hush Blackwell, LLP, of Washington, DC, for the plaintiffs Gang Yan Diamond Products, Inc., Cliff International Ltd., and Beijing Gang Yan Diamond Products Company

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 and Compliance, U.S. Department of Commerce, of Washington, DC. Court No. 14-00148 Page 2

Daniel B. Pickard and Maureen E. Thorson, Wiley, Rein & Fielding, LLP, of Washington, DC, for the defendant-intervenors.

Musgrave, Senior Judge: This opinion concerns the third administrative review

conducted by the defendant International Trade Administration, U.S. Department of Commerce

(“Commerce”) of Diamond Sawblades from the People’s Republic of China (“PRC) (“Third

Review”)1 covering the 2011-2012 period. As with the two prior administrative reviews, the

plaintiffs filed this action to preserve their challenge to the country-wide (or “PRC-wide”) rate

applied to them as part of the “ATM entity.”2 Jurisdiction here again falls under 28 U.S.C. §1581(c),

and administrative determinations that are “unsupported by substantial evidence on the record, or

otherwise not in accordance with law” are to be held unlawful. 19 U.S.C. §1516a(b)(1)(B)(i). The

matter will remanded due to the following.

The plaintiffs recast a number of their arguments previously raised, to the effect that

the PRC-wide rate is an adverse facts rate, and that its application to them in this administrative

review is unlawful given that the PRC-wide entity, including the “ATM entity” (including the

plaintiffs), “fully cooperated” in the proceeding. See 19 U.S.C. § 1677e. Most of the plaintiffs’

arguments were addressed by the prior decision on the first administrative review. See Diamond

1 Diamond Sawblades and Parts Thereof From the People’s Republic of China, 79 Fed. Reg. 35723 (Jun. 24, 2014) (final rev. results), PDoc 487, and accompanying issues and decision memorandum (“IDM”) (July 11, 2014), PDoc 471. 2 Commerce continued to consider the “collapsed” ATM entity as consisting of Advanced Technology & Materials Co., Ltd., AT&M International Trading Co., Ltd., Beijing Gang Yan Diamond Products Company, Gang Yan Diamond Products, Inc., Cliff (Tianjin) International Limited Company, and HXF Saw Co., Ltd. See Memorandum to File, re “Affiliation and the ATM Single Entity” (Dec. 3, 2012), PDoc 346. Court No. 14-00148 Page 3

Sawblades Manufacturers’ Coalition v. United States, 39 CIT ___, Slip Op. 15-105 (Sep. 23, 2015).

The court will here readdress certain arguments pertinent to resolution of this matter.

As in their comments on the remand results of the first and second administrative

reviews, the plaintiffs assume that Commerce’s finding of “cooperation” extends to the full PRC-

wide entity. See, e.g., Pls’ R. 56.2 Br. at 3 (“[t]he finding of cooperation by the AT&M Entity

responding for the PRC-wide entity, is equally applicable to this review as to the prior two reviews”)

& 4 (“the full cooperation of the PRC-wide entity, responding through the AT&M Entity, is readily

apparent”); Pls’ Reply at 4 (“the full cooperation of the PRC-wide entity, responding through the

AT&M entity”). That is an inexact interpretation of the Third Review final results. It is clear from

the IDM that Commerce examined the ATM entity from the perspective of the ATM entity’s

arguments that it was entitled to a separate rate. See, e.g., IDM at cmt. 1. It is also clear that the

arguments the ATM entity made before Commerce were advanced on its own behalf, not on behalf

of the PRC-wide entity. See, e.g., id. at cmt. 3. In addition, the record does not indicate that the

ATM entity was authorized, by either Commerce or any PRC-wide authority, to speak for the PRC-

wide entity, only that the plaintiffs, as part of the ATM entity, were also part of the PRC-wide entity.

See generally id.

At this point, Commerce’s defense of applying to the plaintiffs the country-wide rate

from the original investigation (i.e., 164.09%) rests on the concept of the finality of the

administrative review process. This Third Review is distinct from the first and second administrative

reviews in so far as Commerce denied separate rate status to the ATM entity during the

administrative process rather than pursuant to voluntary remand. And Commerce has not requested Court No. 14-00148 Page 4

voluntary remand for this review as it did for the first and second reviews. The court is mindful of

the fact that the IDM was prepared as of and dated June 18, 2014, whereas the results of the

redeterminations of the first and second administrative reviews were prepared as of and dated April

10, 2015, and May 18, 2015, respectively. In other words, as Commerce states, at the time of the

Third Review’s final results it had no record evidence that would require recalculation of the country-

wide rate established in the investigation. Nonetheless, the tenor of the plaintiffs’ arguments is to

the effect that the Third Review final results fail to give due consideration to the plaintiffs’

cooperation during the proceeding, in particular with respect to the effect of that cooperation upon

the PRC-wide rate applied to it. With respect to the first and second administrative review

redeterminations, Commerce considered, and successfully defended, that once it was determined that

the ATM entity was ineligible for a separate rate, the circumstance triggered a “review” of the PRC-

wide rate, apparently in accordance with policy or practice, and that the ATM entity’s “cooperation”

needed to be taken into account in such “reviews.” The Third Review’s final results as they currently

stand thus appear anachronistic in comparison with those final results of redeterminations. At the

very least, this matter requires remand for further clarification of why the determination of the ATM

entity’s ineligibility for a separate rate did not trigger a similar “review” of the PRC-wide rate, and

specifically what Commerce’s policy or practice was at the time, if it was not as described in the

decision on the results of redetermination of the first administrative review. See Slip Op. 15-105 at

11. Of course, Commerce also has discretion to reconsider, if that is appropriate.

So ordered.

Dated: November 9, 2015 /s/ R. Kenton Musgrave New York, New York R. Kenton Musgrave, Senior Judge