Diamond Sawblades Mfrs'.Coal. v. U.S. Dep't of Commerce

Citation11 F.Supp.3d 1303
Decision Date23 September 2014
Docket NumberCourt No. 13–00391.,Slip Op. 14–111.
PartiesDIAMOND SAWBLADES MANUFACTURERS' COALITION, Plaintiff, v. UNITED STATES DEPARTMENT OF COMMERCE and United States International Trade Commission, Defendants.
CourtU.S. Court of International Trade

Daniel B. Pickard and Maureen E. Thorson, Wiley Rein LLP, of Washington, D.C., argued for plaintiff.

Alexander V. Sverdlov, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, D.C., argued for defendant United States Department of Commerce. With him on the brief were Stuart F. Delery, Assistant Attorney General, Jeanne E. Davidson, Director, and Franklin E. White, Jr., Assistant Director. Of counsel on the brief was Nathaniel Halvorson, Attorney, Office of the Chief Counsel for Trade Enforcement and Compliance, United States Department of Commerce, of Washington, D.C.

David B. Fishberg, Attorney–Advisor, Office of the General Counsel, United States International Trade Commission, of Washington, D.C., argued for defendant United States International Trade Commission. With him on the brief was Neal J. Reynolds, Assistant General Counsel for Litigation.

MEMORANDUM and ORDER

EATON, Senior Judge:

This action concerns the five-year, or “sunset,” review of the antidumping duty order on diamond sawblades and parts thereof from the People's Republic of China (“PRC”), for which the United States Department of Commerce (“Commerce” or the “Department”) published a notice in the Federal Register on December 2, 2013, and which was initiated on January 23, 2014. Initiation of Five–Year (“Sunset”) Review, 78 Fed.Reg. 72,061 (Dep't of Commerce Dec. 2, 2013) (“Initiation Notice”); Diamond Sawblades and Parts Thereof From China Institution of a Five–Year Review, 78 Fed.Reg. 72,116, 72,117 (Int'l Trade Comm'n Dec. 2, 2013). The sole question posed by this case is whether the review was initiated at the proper time. Before the court is the motion1 of plaintiff Diamond Sawblades Manufacturers' Coalition (plaintiff or the “Coalition”), seeking a ruling declaring that the ongoing review is ultra vires, halting that review, and instructing defendants to initiate a sunset review on November 4, 2014. Pl.'s Mot. (ECF Dkt. No. 30). Defendants,2 the Department and the International Trade Commission (“ITC”) (collectively, defendants), oppose the motion on the merits, and the Department has separately moved to dismiss the case for lack of subject matter jurisdiction.See Def.'s Resp. to Pl.'s Mot. for J. on the Administrative R. (ECF Dkt. No. 40) (“Dep't's Br.”); Def. United States International Trade Commission's Resp. in Opp'n to Pl.'s Mot. for J. on the Administrative R. (ECF Dkt. No. 41); Def.'s Mot. to Dismiss Pl.'s Compl. for Lack of Jurisdiction (ECF Dkt. No. 46) (“Dep't's Mot. to Dismiss). For the following reasons, the Department's motion to dismiss is denied and plaintiff's motion is granted.

BACKGROUND

In 2005, the ITC initiated an injury investigation regarding certain diamond sawblades imported from the PRC and the Republic of Korea (“Korea”).3 See Diamond Sawblades Mfrs. Coal. v. United States, 626 F.3d 1374, 1376 (Fed.Cir.2010) (“Diamond Sawblades V ”). The ITC preliminarily determined that there was a reasonable likelihood of injury to a United States industry as a result of the importation of subject merchandise, but then altered its position and found no material injury or threat of material injury in its final determination. Id. at 1376–77. For its part, the Department made preliminary and final determinations that diamondsawblades were being sold at less than fair value in the United States. Id. at 1376.

The Coalition brought an action in this Court, challenging the ITC's final negative material injury determination and Commerce's less than fair value determinations. Id. at 1377. The Diamond Sawblades Court remanded the case to the ITC, finding that its negative injury determination was insufficiently supported. Diamond Sawblades Mfrs. Coal. v. United States, 32 CIT 134, 135, 151 (2008) (“Diamond Sawblades I ”). On remand, the ITC found a threat of material injury and the Diamond Sawblades Court affirmed that determination. Diamond Sawblades Mfrs. Coal. v. United States, 33 CIT 48, 48, 67 (2009) (“Diamond Sawblades II ”).

After the issuance of Diamond Sawblades II, Commerce continued the suspension of liquidation of the subject imports of diamond sawblades, but took the position that it was not required to publish antidumping duty orders or direct the collection of cash deposits on ongoing imports of subject merchandise until the appeal of Diamond Sawblades II to the U.S. Court of Appeals for the Federal Circuit had been resolved. Diamond Sawblades V, 626 F.3d at 1377. Disputing this position, the Coalition petitioned the Diamond Sawblades Court for “a writ of mandamus directing Commerce to publish antidumping duty orders and immediately begin collecting cash deposits,” and the Diamond Sawblades Court granted the writ. Id.; Diamond Sawblades Mfrs. Coal. v. United States, 33 CIT 1422, 1452–53, 650 F.Supp.2d 1331, 1357 (2009) (“Diamond Sawblades III ”).4 Thereafter, on September 30, 2009, the Diamond Sawblades Court issued its judgment directing Commerce to forthwith “issue and publish antidumping duty orders and require the collection of cash deposits on subject merchandise.” Diamond Sawblades III, 33 CIT at 1422, 1453, 650 F.Supp.2d at 1331, 1357.

On November 4, 2009, the Department published the antidumping duty order in the Federal Register. Diamond Sawblades and Parts Thereof From the PRC and Korea, 74 Fed.Reg. 57,145 (Dep't of Commerce Nov. 4, 2009) (antidumping duty orders) (“Antidumping Order”). Therein, the Department stated the effective date of the Antidumping Order as January 23, 2009 and further stated that it would direct U.S. Customs and Border Protection (“Customs”) to collect cash deposits for unliquidated merchandise “as of” that date. Antidumping Order, 74 Fed.Reg. at 57,146. Thus, Commerce stated that it would direct the retroactive collection of cash deposits. See Antidumping Order, 74 Fed.Reg. at 57,146.

Following its publication, the Department conducted three administrative reviews5 under 19 U.S.C. § 1675(a)(1) (2006), and used November 4, 2009 as the anniversary date of the Antidumping Order's publication. The reason for this choice was given in the notice for the first review. Therein, the Department stated that it chose the November 4 date rather than the January 23, 2009 effective date set out in the Antidumping Order because November was the anniversary for the publication of the Antidumping Order, and its regulations directed the use of that date. Thus, the Department stated:

Although the effective date of the [Antidumping Order] is January 23, 2009, based on the date of the suspension of liquidation, the Department designates November as the anniversary month for the[ ] diamond sawblades order[ ] because this is the month in which the Department published the notice for the [Antidumping Order]. In its regulations, the Department defines the anniversary month as the calendar month in which the anniversary of the date of publication of an order ... occurs. Therefore, consistent with section 751(a)(1) of the Tariff Act of 1930 [ (19 U.S.C. § 1675(a)(1) ) ], as amended, and [19 C.F.R. § 351.213(b) ], the first opportunity to request a review of the above-referenced order[ ] will be in November 2010.
Diamond Sawblades and Parts Thereof From the PRC and Korea, 75 Fed.Reg. 969, 970 (Dep't of Commerce Jan. 7, 2010) (notice of anniversary month and first opportunity to request an administrative review) (citation omitted). The November 4 date was also used in the succeeding administrative reviews. See, e.g., Initiation of Antidumping and Countervailing Duty Administrative Reviews and Request for Revocation in Part, 78 Fed.Reg. 79,392, 79,392, 79,394 (Dep't of Commerce Dec. 30, 2013).

Although it consistently used November 4 for purposes of initiating administrative reviews, Commerce determined that it would use January 23, 2009 as the date to calculate the five-year period after which to conduct the sunset review, based on the stated effective date in the Antidumping Order. As a result, when the Department published the notice of initiation of the sunset review on December 2, 2013, it stated that the sunset review would be initiated on January 23, 2014. See InitiationNotice, 78 Fed.Reg. at 72,061 ; Diamond Sawblades and Parts Thereof From China Institution of a Five–Year Review, 78 Fed.Reg. at 72,117. Plaintiff, by its motion, now challenges defendants' decision to use January 23, 2009 as the anniversary date on which to begin conducting the sunset review, rather than November 4, 2009, the actual date of publication.

On July 11, 2014, during the pendency of this action, the Department published its portion of the sunset review that commenced on January 23, 2014, finding “that revocation of the antidumping duty order on diamond sawblades from the PRC would be likely to lead to continuation or recurrence of dumping at weighted-average margins up to 164.09 percent.” Diamond Sawblades and Parts Thereof from the PRC, 79 Fed.Reg. 40,062, 40,063 (Dep't of Commerce July 11, 2014) (final results of the expedited sunset review of the antidumping duty order). At this time, the ITC's portion of the review has barely begun. Oral Arg. Tr. 29:23–25, Aug. 5, 2014 (ECF Dkt. No. 51) (“Oral Arg. Tr.”).

DISCUSSION
I. Subject Matter Jurisdiction and Motion to Dismiss

The Department has separately moved to dismiss this action for lack of subject matter jurisdiction under the theory that plaintiff now has, and has always had, the ability to obtain complete relief by challenging the final determination once the sunset review is finished. Dep't's Mot. to Dismiss 5 ([T]he Coalition may challenge the sunset review pursuant to 28 U.S.C. § 1581(c).”).

Plaintiff initiated this action under 28...

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