Diamond Sawblades Mfrs. Coal. v. U.S.

• Decision Date: 09 December 2010
• Docket Number: Nos. 2010-1024,Nos. 2010-1090,s. 2010-1024,s. 2010-1090
• Citation: 32 ITRD 1613,626 F.3d 1374
• Parties: DIAMOND SAWBLADES MANUFACTURERS COALITION, Plaintiff-Appellee, v. UNITED STATES, Defendant-Appellant, and Saint-Gobain Abrasives, Inc., Defendant-Appellant, and Hebei Jikai Industrial Group Co., Ltd., and Husqvarna Construction Products North America, Inc., Defendants-Appellants, and Ehwa Diamond Industrial Co., Ltd., Defendant-Appellant, and Bosun Tools Group Co., Ltd., Defendant-Appellant.
• Court: U.S. Court of Appeals — Federal Circuit

626 F.3d 1374

32 ITRD 1613

DIAMOND SAWBLADES MANUFACTURERS COALITION, Plaintiff-Appellee,

v. UNITED STATES, Defendant-Appellant,andSaint-Gobain Abrasives, Inc., Defendant-Appellant,andHebei Jikai Industrial Group Co., Ltd., and Husqvarna Construction Products North America, Inc., Defendants-Appellants,andEhwa Diamond Industrial Co., Ltd., Defendant-Appellant,andBosun Tools Group Co., Ltd., Defendant-Appellant.

Nos. 2010-1024, 2010-1090.

United States Court of Appeals, Federal Circuit.

Dec. 9, 2010.

Daniel B. Pickard, Wiley Rein LLP, of Washington, DC, argued for plaintiff-appellee. With him on the brief was Maureen E. Thorson.

Delisa M. Sanchez, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for defendant-appellant United States. With her on the brief were TONY WEST, Assistant Attorney General, Jeanne E. Davidson, Director, and Franklin E. White, Jr., Assistant Director.

Kenneth George Weigel, Alston & Bird, LLP, of Washington, DC, argued for defendants-appellants Hebei Jikai Industrial Group Co., Ltd, et al. With him on the brief for Hebei Jikai Industrial Group Co., Ltd, and Husqvarna Construction Products North America, Inc. was Elizabeth M. Hein.

Lynn M. Fischer Fox, Fischer Fox Global PLLC, of Washington, DC, for defendant-appellant Saint-Gobain Abrasives, Inc.

J. David Park, Akin, Gump Strauss Hauer & Feld LLP, of Washington, DC, for defendant-appellant Ehwa Diamond Industrial Co., Ltd. Of counsel were Jarrod M. Goldfeder, Spencer S. Griffith and Lisa W. Ross.

Gregory S. Menegaz, Dekieffer & Horgan, of Washington, DC, for defendant-appellant Bosun Tools Group Co., Ltd. Of counsel was James Kevin Horgan.

Before LOURIE, BRYSON, and DYK, Circuit Judges.

BRYSON, Circuit Judge.

In this antidumping case, the Court of International Trade issued a writ of mandamus to the Department of Commerce directing Commerce to issue antidumping duty orders and require the collection of cash deposits on certain merchandise imported from China and Korea. Commerce and several importers appealed, arguing that Commerce had no duty to issue suchorders prior to the termination of all judicial proceedings challenging the underlying determination of the International Trade Commission. We affirm the order of the Court of International Trade.

I

An antidumping duty investigation begins when an interested party files a petition with Commerce and the International Trade Commission seeking the imposition of antidumping duties on designated imports. 19 U.S.C. § 1673a(b). Based on the petition and other available information, the Commission first determines whether there is a reasonable indication that a domestic industry is materially injured or threatened with material injury by the subject imports. Id. § 1673b(a)(1). If the Commission makes an affirmative preliminary determination, it waits for Commerce to determine whether the subject merchandise is, or is likely to be, sold at less than fair value in the United States ("the LTFV determination"). Id. § 1673b(b)(1)(A).

If Commerce makes an affirmative final LTFV determination, the Commission then makes a final injury determination. 19 U.S.C. § 1673d(b)(1). The Commission is required to notify the parties and Commerce of its determination and to publish notice of that determination in the Federal Register. Id. § 1673d(d). If the Commission's final determination of material injury or threat of material injury is affirmative, Commerce is required, within seven days after being notified by the Commission of the determination, to publish an antidumping duty order and begin collecting cash deposits for duties due under the order. See id. § 1673e(a) (obligation to publish antidumping duty order after notification); id. § 1673e(a)(3) (obligation to collect deposit of estimated antidumping duties pending liquidation of entries of subject goods).

II

Diamond Sawblades Manufacturers Coalition ("DSMC") represents domestic manufacturers of diamond sawblades. In 2005, DSMC petitioned Commerce to impose antidumping duty orders on certain diamond sawblades imported from China and Korea. Commerce and the International Trade Commission initiated antidumping investigations in response to the petition. The Commission made a preliminary determination that there was a reasonable likelihood that an industry in the United States was materially injured or threatened with material injury. Diamond Sawblades and Parts Thereof from China and Korea, 70 Fed.Reg. 43,903 (Int'l Trade Comm'n July 29, 2005). Commerce then made preliminary and final determinations that the subject imports were being sold at less than fair value in this country. Diamond Sawblades and Parts Thereof From the People's Republic of China, 70 Fed.Reg. 77,121 (Dep't of Commerce Dec. 29, 2005) (preliminary determination); Diamond Sawblades and Parts Thereof From the Republic of Korea, 70 Fed.Reg. 77,135 (Dep't of Commerce Dec. 29, 2005) (preliminary determination); Diamond Sawblades and Parts Thereof From the People's Republic of China, 71 Fed.Reg. 29,303 (Dep't of Commerce May 22, 2006) (final determination), amended by 71 Fed.Reg. 35,864 (Dep't of Commerce June 22, 2006); Diamond Sawblades and Parts Thereof From the Republic of Korea, 71 Fed.Reg. 29,310 (Dep't of Commerce May 22, 2006) (final determination). The International Trade Commission subsequently published its final "material injury" determination. In that determination, the Commission found that the diamond sawblades industry in the United States was not materially injuredor threatened with material injury by imports of diamond sawblades from China and Korea. Diamond Sawblades and Parts Thereof From China and Korea, Inv. Nos. 731-1092 & 1093, USITC Pub. 3862 (July 2006), notice published at 71 Fed.Reg. 39,128 (Int'l Trade Comm'n July 11, 2006). The administrative antidumping proceedings therefore came to an end.

DSMC filed a complaint in the Court of International Trade challenging both the Commission's final negative injury determination and Commerce's LTFV determinations. The court stayed the claim pertaining to Commerce pending the disposition of the claim pertaining to the Commission. On the merits, the court then ruled that the Commission had not provided an adequate explanation or substantial evidentiary support for its negative injury determinations. Diamond Sawblades Mfrs. Coal. v. United States, slip op. No.2008-18, 2008 WL 576988 (Ct. Int'l Trade Feb. 6, 2008). The court therefore remanded the case to the Commission for further proceedings. On remand, the Commission in May 2008 entered a new final determination, which partially reversed its earlier final determination. Diamond Sawblades and Parts Thereof from China and Korea, Inv. Nos. 731-TA-1092 & 1093, USITC Pub. 4007 (May 2008) (Final) (Remand). The Commission again found that the domestic diamond sawblades industry was not materially injured by the dumping of the subject imports, but this time it found that the subject imports threatened material injury to the domestic diamond sawblades industry. The Court of International Trade sustained that determination. Diamond Sawblades Mfrs. Coal. v. United States, slip op. No.2009-05, 2009 WL 289606 (Ct. Int'l Trade Jan. 13, 2009).

Shortly after the court issued its order, the Commission notified Commerce by letter that the court had upheld its final affirmative injury determination. In response, Commerce ordered that liquidation of the subject imports be suspended pending the final resolution of the antidumping dispute. DSMC then requested that, in addition to suspending liquidation of the subject imports, Commerce issue antidumping duty orders and begin collecting cash deposits in connection with the ongoing imports of the subject goods. Commerce, however, declined to issue antidumping duty orders at that time or to begin collecting cash deposits in connection with the ongoing imports. Instead, Commerce took the position that under the governing statutes it was not required to issue antidumping duty orders or to collect cash deposits until the final conclusion of the litigation challenging the predicates for entering antidumping orders, i.e., until Commerce received notice from the Commission that no appeal would be taken to this court or, if an appeal was taken, until this court issued a "conclusive decision" upholding the decision of the Court of International Trade.

DSMC then petitioned the Court of International Trade for a writ of mandamus directing Commerce to publish antidumping duty orders and immediately begin collecting cash deposits of the antidumping duties for imported merchandise falling within the scope of the antidumping duty orders. Over Commerce's objection, the court granted the writ. Commerce then took this appeal, joined by the importers of the subject goods. While this appeal was pending and before oral argument in this case, this court affirmed the decision of the Court of International Trade in the underlying appeal from that court's decision upholding the Commission's affirmative threat of injury determination.Diamond Sawblades Mfrs. Coal. v. United States, 612 F.3d 1348 (Fed.Cir.2010).

III

This case presents a highly technical issue of statutory construction that is of some significance to the administration of the antidumping laws. The issue involves an interpretation of several related statutory provisions governing administrative antidumping proceedings before Commerce and the International Trade Commission, and judicial review of those proceedings by the Court of International Trade and this court. The precise question before us is whether, in a case in which the Court of International Trade has remanded a negative injury determination to the Commission, and the Commission on remand has made an affirmative injury determination and notified Commerce of that determination, Commerce must issue antidumping duty orders and begin collecting cash deposits of the antidumping duties...