650 F.Supp.2d 1331 (CIT 2009), 06-00247, Diamond Sawblades Mfrs. Coalition v. United States

Docket Nº:Court 06-00247, 09-00110.
Citation:650 F.Supp.2d 1331
Opinion Judge:MUSGRAVE, Senior Judge.
Party Name:DIAMOND SAWBLADES MANUFACTURERS COALITION, Plaintiff, v. UNITED STATES, Defendant, and St. Gobain Abrasives, Inc., Ehwa Diamond Industrial Co., Ltd., and Shinhan Diamond: Industrial Co., Ltd., Defendant-Intervenors. Diamond Sawblades Manufacturers Coalition, Plaintiff, v. United States, Defendant, and Saint-Gobain Abrasives, Inc., Hebei Jikai Indus
Attorney:Wiley, Rein & Fielding LLP (Daniel B. Pickard), Washington, DC, for Plaintiff. James M. Lyons, General Counsel, Neal J. Reynolds, Assistant General Counsel, Office of the General Council, U.S. International Trade Commission (Charles A. St. Charles), for Defendant U.S. International Trade Commissi...
Judge Panel:Before: Musgrave, Senior Judge.
Case Date:September 30, 2009
Court:Court of International Trade
 
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Page 1331

650 F.Supp.2d 1331 (CIT 2009)

DIAMOND SAWBLADES MANUFACTURERS COALITION, Plaintiff,

v.

UNITED STATES, Defendant,

and

St. Gobain Abrasives, Inc., Ehwa Diamond Industrial Co., Ltd., and Shinhan Diamond: Industrial Co., Ltd., Defendant-Intervenors.

Diamond Sawblades Manufacturers Coalition, Plaintiff,

v.

United States, Defendant,

and

Saint-Gobain Abrasives, Inc., Hebei Jikai Industrial Group Co., Ltd., Husqvarna Construction Products North America, Inc., Ehwa Diamond Industrial Co., Ltd., and Bosun Tools Group Co., Ltd., Defendant-Intervenors.

Slip Op. 09-107.

Court Nos. 06-00247, 09-00110.

United States Court of International Trade.

September 30, 2009

Page 1332

[Copyrighted Material Omitted]

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Wiley, Rein & Fielding LLP (Daniel B. Pickard), Washington, DC, for Plaintiff.

James M. Lyons, General Counsel, Neal J. Reynolds, Assistant General Counsel, Office of the General Council, U.S. International Trade Commission (Charles A. St. Charles), for Defendant U.S. International Trade Commission.

Tony West, Assistant Attorney General; Jeanne E. Davidson, Director, Franklin E. White, Jr., Assistant Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, (Delisa M. Sanchez); Office of the Chief Counsel for Import Administration, U.S. Department of Commerce (Mark B. Lehnardt), Of Counsel, for Defendant U.S. Department of Commerce.

Akin Gump Strauss Hauer & Feld LLP (Spencer S. Griffith, J. David Park, Jarrod M. Goldfeder, Lisa W. Ross, and Valerie A. Slater), Washington, DC, for Defendant-Intervenors Ehwa Diamond Industrial Co., Ltd. and Shinhan Diamond Industrial Co., Ltd.

Fischer FoxGlobal PLLC (Lynn M. Fischer Fox), for the defendant-intervenor Saint-Gobain Abrasives, Inc.

Alston & Bird, LLP (Kenneth G. Weigel and Elizabeth M. Hein), Washington, DC, for Defendant-Intervenors Hebei Jikai Industrial Group Co., Ltd., and Husqvarna Construction Products North America, Inc.

DeKeiffer & Horgan (Gregory S. Menegaz), Washington, DC, for Defendant-intervenor Bosun Tools Group Co., Ltd.

Before: Musgrave, Senior Judge.

OPINION AND ORDER

MUSGRAVE, Senior Judge.

Before the court are two applications for relief in the nature of writs of mandamus instituted by the plaintiff Diamond Sawblades

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Manufacturers Coalition (" DSMC" ), one of which (Court No. 06-00247) seeks to compel the United States International Trade Commission (" ITC" or the " Commission" ) to publish notice of its affirmative remand determination in the Federal Register as a legal consequence of this court's judgment in Diamond Sawblades Mfr's Coalition v. United States, Slip Op. 09-5, 2009 WL 289606 (CIT Jan. 13, 2009) (" Slip Op. 09-5" ) (sustaining the ITC's affirmative remand determination), and the other (Court.No.09-00110) seeking to compel the International Trade Administration, United States Department of Commerce (" Commerce" or the " Department" ) to issue antidumping duty orders and order the collection of cash deposits. Both matters concern the question of whether, absent a stay, the ITC and Commerce are legally obligated to effectuate the decisions of this Court if the case has been appealed. For the reasons set forth below, the court concludes that they must. The court will grant the plaintiff's requested relief as to Commerce, but will deny the request, on the ground of mootness, as to the ITC.

I. Background

A. Statement of Facts

Some familiarity with Court No. 06-00247 is presumed. In July 2006, the ITC published its final determination that a domestic industry was not materially injured, or threatened with material injury, by reason of imports of diamond sawblades from China and Korea. Diamond Sawblades and Parts Thereof From China and Korea, 71 Fed.Reg. 39,128 (ITC) (July 11, 2006) (" Original Determination" ). DSMC, a domestic industry coalition of diamond-sawblade manufacturers, challenged the ITC's final negative injury determination in this Court.1 In reviewing the determination, the court found that the ITC had failed to provide an adequate explanation or substantial evidentiary support for certain findings. The court remanded the matter to the ITC and instructed the Commission to reconsider and explain more fully its negative-injury determination in light of the court's opinion.

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Diamond Sawblades Mfr's Coalition v. United States, Slip Op. 08-18 2008 WL 576988 (Feb. 6, 2008). On remand, the Commission considered the court's instructions and reopened the record for the purpose of collecting additional information. It then considered the new information it gathered and issued a new decision on May 14, 2008. In that decision, the Commission again found that the domestic industry was not materially injured by reason of subject imports but reversed its position on the issue of threat-of-material-injury. Diamond Sawblades and Parts Thereof from China and Korea, Investigation Nos. 731-TA-1092 and 1093 (Final) (Remand), USITC Pub. 4007 (May 2008) (" Remand Determination" ). The court sustained the Remand Determination on January 13, 2009. Diamond Sawblades, Slip Op. 09-5.

On January 22, 2009, the ITC notified Commerce that this court had issued a final decision sustaining the ITC's affirmative Remand Determination and that the court's decision was " ‘ not in harmony with’ the Commission's original negative injury determination." Pub. Doc. No. 3 at 1 (Court No. 09-110). As directed by 19 U.S.C. § 1516a(c)(1) and Timken Co. v. United States, 893 F.2d 337, 341 (Fed.Cir.1990), Commerce published notice of the court's decision in the Federal Register on February 10, 2009. See Diamond Sawblades and Parts Thereof from the People's Republic of China and the People's Republic of Korea: Notice of Court Decision Not In Harmony With Final Determination of the Antidumping Duty Investigations (Commerce Dept.) 74 Fed.Reg. 6570 (Feb. 10, 2009) (" Timken Notice " ). In the Timken Notice, Commerce stated that liquidation of subject import entries would be suspended within ten days of that notice, and that an antidumping duty order would be issued if notified by the ITC that Slip Op. 09-5 " is not appealed or is affirmed on appeal." Id.

Shortly after publication of the Timken Notice, DSMC submitted a letter to Commerce suggesting that, in addition to suspension of liquidation, Commerce should order the collection of cash deposits. Pub. Doc. 2 (Court No. 09-110). The Department responded that it would not order the collection of cash deposits until issuance of a final and conclusive court decision and that " [t]he Department interprets Timken to require suspension of liquidation, but not to direct the Department to require cash deposits on or after the date of the notice." Department of Commerce (" DOC" ) Mem. at 4.

In a similar correspondence with the ITC, DSMC requested that the Commission publish notice of the affirmative Remand Determination in the Federal Register. DSMC noted that although the ITC had, in a similar case, delayed notice publication until all appeals had been exhausted, delay was not appropriate in the current matter. DSMC asserted that 19 U.S.C. § 1673(d) " requires the Commission to also publish a notice in the Federal Register regarding the remand determination[; therefore] ... we ask that the Commission publish such a notice in order to dispel serious confusion that has arisen with respect to the relief due to the domestic industry in this case...." DSMC Letter, ITC Mem. at Attach. B.

On March 13, 2009, the defendant-intervenors Ehwa Diamond Industrial Co., Ltd., and Saint-Gobain Abrasives, Inc., filed notices of appeal in the U.S. Court of Appeals for the Federal Circuit (" Federal Circuit" ). The ITC did not appeal. As promised in the Timken Notice, Commerce did not publish an antidumping duty order and did not direct the collection of cash deposits. Further, in a letter dated April 9, 2009, the Commission informed DSMC that, inter alia, it disagreed with DSMC's interpretation of section 1673d(d) and that it would not publish notice of its Remand Determination at that point in time. ITC Mem. at Attach D. Thereafter,

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DSMC filed in this court a petition for a writ of mandamus (Court No. 09-00110) to compel the Department of Commerce to issue antidumping duty orders and to require the collection of cash deposits in the respective investigations. One week later DSMC filed in this court a second application for a writ of mandamus (Court No. 06-00247) to compel the ITC to publish notice of the affirmative Remand Determination in the Federal Register.

B. Arguments of the Parties

1. ITC Action (Court No. 06-00247)

Before the court DSMC argues that it is clearly and indisputably entitled to the relief it seeks because " [t]he Tariff Act of 1930 states that whenever the ITC makes a final threat of material injury determination under [section] 1673d(b), it ‘ shall publish notice of its determination in the Federal Register. ’ " DSMC (No. 06-00247) Mem. at 3-4 (quoting 19 U.S.C. § 1673d(d)). DSMC contends that it has no other means to obtain relief because publication of notice of the affirmative determination is " necessary to effectuate this court's judgment." Id. at 1. This is so, DSMC contends (and the defendant-intervenors concur), because 19 U.S.C. § 1673e(b)(2) specifies that when the ITC's determination is affirmative for threat-of-material-injury only, antidumping duties may not be assessed for any time period prior to the date of publication. Under this scheme, argues DSMC, the ITC's refusal to publish notice of the affirmative Remand Determination until after all appeals have been decided (which may take almost two years) fundamentally diminishes the relief to which it is legally entitled.

The ITC presents two central arguments as to why it does not have a current duty to publish notice of the Remand Determination. First, the ITC contends that delaying...

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