415 F.Supp.3d 1365 (CIT. 2019), 17-00167, Diamond Sawblades Manufacturers’ Coalition v. United States

Docket Nº:No. 17-00167, Slip Op. No. 19-157
Citation:415 F.Supp.3d 1365
Opinion Judge:Kelly, Judge:
Party Name:The DIAMOND SAWBLADES MANUFACTURERS’ COALITION, Plaintiff, v. UNITED STATES, Defendant, and Bosun Tools Co., Ltd., Defendant-intervenor.
Attorney:Daniel B. Pickard, Wiley Rein, LLP, of Washington, DC, argued for plaintiff Diamond Sawblades Manufacturers’ Coalition. With him on the brief were Maureen E. Thorson and Stephanie M. Bell. John J. Todor, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, U.S. Department of Justic...
Case Date:December 16, 2019
Court:United States District Court, Federal Circuit

Page 1365

415 F.Supp.3d 1365 (CIT. 2019)

The DIAMOND SAWBLADES MANUFACTURERS’ COALITION, Plaintiff,

v.

UNITED STATES, Defendant,

and

Bosun Tools Co., Ltd., Defendant-intervenor.

No. 17-00167

Slip Op. No. 19-157

United States Court of International Trade

December 16, 2019

Page 1366

[Copyrighted Material Omitted]

Page 1367

Daniel B. Pickard, Wiley Rein, LLP, of Washington, DC, argued for plaintiff Diamond Sawblades Manufacturers’ Coalition. With him on the brief were Maureen E. Thorson and Stephanie M. Bell.

John J. Todor, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, argued for defendant. With him on the brief were Joseph H. Hunt, Assistant Attorney General, Jeanne E. Davidson, Director, and Franklin E. White, Jr., Assistant Director. Of counsel was Paul Keith, Attorney, Office of the Chief Counsel for Trade Enforcement and Compliance, U.S. Department of Commerce, of Washington, DC.

Alexandra H. Salzman, deKieffer & Horgan, PLLC, of Washington, DC, argued for defendant-intervenor Bosun Tools Co., Ltd. With her on the brief were Gregory S. Menegaz and J. Kevin Horgan.

OPINION AND ORDER

Kelly, Judge:

Before the court is the U.S. Department of Commerce’s ("Department" or "Commerce") remand redetermination filed pursuant to the court’s order in Diamond Sawblades Mfrs. Coalition v. United States, 42 C.I.T. __, Slip Op. 18-146, 2018 WL 5281941 (Oct. 23, 2018) ("DSBs I "). See Remand Redetermination Pursuant to Ct. Remand Order in [DSBs I ], Apr. 17, 2019, ECF No. 43-1 ("Remand Results ").

In DSBs I, the court remanded for further explanation and consideration Commerce’s conclusion that Bosun Tools. Co., Ltd. ("Bosun" or "Defendant-Intervenor") had acted to the best of its ability in responding to Commerce’s requests for information in the sixth administrative review of the antidumping duty ("ADD") order

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covering diamond sawblades and parts thereof ("DSBs") from the People’s Republic of China ("PRC").1 DSBs I, Slip Op. 18-146 at 18, 25-26; see also [DSBs] and Parts Thereof From the [PRC], 82 Fed.Reg. 26,912 (Dep’t of Commerce June 12, 2017) (final results of ADD admin. review; 2014-2015) ("Final Results "), and accompanying Issues and Decision Memo. for the Admin. Rev. of [ADD] Order on [DSBs] from the [PRC], A-570-900, June 6, 2017, ECF No. 18-4 ("Final Decision Memo.").

Bosun challenges Commerce’s remand redetermination as arbitrary and capricious and as unsupported by substantial evidence, and requests the court to remand the case. See Def.-Intervenor [Bosun] Cmts. Remand Redetermination at 3-24, June 3, 2019, ECF No. 47 ("Bosun’s Br."). Defendant and Plaintiff Diamond Sawblades Manufacturers’ Coalition ("DSMC") request the court to uphold the Remand Results in its entirety. See Def.’s Resp. [Bosun Br.] at 1, 8-18, July 25, 2019, ECF No. 51 ("Def.’s Resp. Br."); see also Pls.’ Resp. [Bosun Br.] at 3-18, July 25, 2019, ECF No. 52 ("Pls.’ Resp. Br."). For the following reasons, the court sustains Commerce’s Remand Results.

BACKGROUND

The court assumes familiarity with the facts as discussed in the prior opinion, see DSBs I, Slip. Op. 18-146 at 2-7, 18-21, and here recounts those facts relevant to the court’s review of the Remand Results . In this sixth administrative review ("POR") of the ADD order on DSBs,2 Commerce selected Bosun as a mandatory respondent following the withdrawal of certain petitioners’ requests for review.3 See Antidumping and Countervailing Duty Administrative Reviews, 81 Fed.Reg. 736 (Dep’t Commerce Jan. 7, 2016) (initiation); Selection of Respondents for Individual Examination at 5, PD 29, bar code 3438973-01 (Feb. 5, 2016) ("Respondent Selection Memo."); Selection of an Additional Respondent for Individual Examination at 1-2, PD 166, bar code 3463908-01 (Apr. 27, 2016).4

Throughout the POR, Bosun sold DSBs manufactured in Thailand and the PRC through its U.S. affiliates Bosun Tools, Inc. ("Bosun USA") and Pioneer Tools, Inc. ("Pioneer"). See Final Decision Memo. at 21. Bosun’s U.S. affiliates did not record the country of origin of DSBs when selling to U.S. customers. Id. at 26-27. As a result, Bosun reconstructed the country of origin for its affiliates’ sales through a three-step procedure ("sales identification methodology"), including the application of a first-in, first-out ("FIFO") methodology.5 See id. at 27-28. Commerce verified Bosun’s

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sales identification methodology and did not determine it "to be inaccurate." Id. at 27. Commerce also did not find that "Bosun was inattentive, careless, or inadequate in keeping the country of origin record[.]" Id. at 28. Although Commerce found that Bosun could not replicate the reported result of the FIFO methodology to one pre-selected sale at verification, Commerce considered this deficiency a "minor error" that was "limited to this sale[ ] ... only" and accepted Bosun’s sales identification procedure. Id. Commerce also found Bosun complied with the "best of its ability standard" because "Bosun was able to segregate the sales of subject merchandise using its sales identification methodology[.]" Id. at 27-28. Therefore, Commerce declined to apply facts otherwise available with an adverse inference, as urged by petitioner DSMC.6 Id. Commerce calculated a weighted-average dumping margin of 6.19% for Bosun. See Final Results, 82 Fed.Reg. at 26,912.

In DSBs I, the court faulted Commerce for failing to explain how Bosun acted to the "best of its ability" when Bosun had failed to record the country of origin of its sales. See DSBs I, Slip Op. 18-146 at 14. As an interested party, Bosun is required to anticipate the information needed for administrative proceedings, yet it did not record country of origin data. Id. ; see also Peer Bearing Corp. v. United States, 766 F.3d 1396, 1400 (Fed. Cir. 2014); Nippon Steel Corp. v. United States, 337 F.3d 1373, 1382 (Fed. Cir. 2003). The court therefore remanded Commerce’s Final Results for further clarification or reconsideration.[7] See

DSBs I, Slip Op. 18-146 at 18, 26.

On remand, Commerce found that Bosun failed to act to the best of its ability, because Bosun could have maintained country of origin information for its sales of subject merchandise but did not, and, therefore, Bosun failed to provide information in the manner and form requested and impeded the proceeding. See Remand Results at 1-2, 9-14, 21-26. Moreover, Commerce found that the information that Bosun...

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