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Diamond Sawblades Manufacturers Coalition v. United States

United States Court of Appeals, Federal Circuit

August 7, 2017

DIAMOND SAWBLADES MANUFACTURERS COALITION, Plaintiff-Appellee
v.
UNITED STATES, Defendant-Appellee
v.
BEIJING GANG YAN DIAMOND PRODUCTS COMPANY, GANG YAN DIAMOND PRODUCTS, INC., Defendants-Appellants CLIFF INTERNATIONAL, LTD., Defendant

         Appeal from the United States Court of International Trade in No. 1:13-cv-00078-RKM, Senior Judge R. Kenton Musgrave.

          Daniel B. Pickard, Wiley Rein, LLP, Washington, DC, argued for plaintiff-appellee. Also represented by Usha Neelakantan, Maureen E. Thorson.

          John Jacob Todor, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for defendant-appellee. Also represented by Benjamin C. Mizer, Jeanne E. Davidson, Franklin E. White, Jr.; Amanda T. Lee, Office of Chief Counsel for Trade Enforcement and Compliance, United States Department of Commerce, Washington, DC.

          Jeffrey S. Neeley, Husch Blackwell LLP, Washington, DC, argued for defendants-appellants. Also represented by Michael Scott Holton.

          Daniel L. Porter, Curtis, Mallet-Prevost, Colt & Mosle LLP, Washington, DC, for amici curiae Shanghai Huayi Group Corporation Limited, China Manufacturers Alliance. Also represented by James P. Durling, Claudia Denise Hartleben; Gene C. Schaerr, Schaerr Duncan, Washington, DC.

          William Alfred Fennell, Stewart & Stewart, Washington, DC, for amici curiae United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO-CLC, Titan Tire Corporation. Also represented by Nicholas J. Birch, Lane S. Hurewitz, Terence Patrick Stewart.

          Before Lourie, O'Malley, and Taranto, Circuit Judges.

          O'Malley, Circuit Judge.

         The Advanced Technology & Materials entity ("ATM"), comprised of Beijing Gang Yan Diamond Products Company, Gang Yan Diamond Products, Inc., and other affiliated companies, appeals from a decision of the Court of International Trade ("CIT") upholding the Department of Commerce's ("Commerce") determination in a first administrative review of an earlier-imposed antidumping order. [1] In that review, Commerce imposed an adjusted PRC-wide entity rate of 82.12% on subject goods imported by ATM. See Diamond Sawblades Mfrs. Coal. v. United States (CIT Decision), 2015 Ct. Int'l Trade LEXIS 107 (Ct. Int'l Trade Sept. 23, 2015). Because the CIT did not err in upholding Commerce's decision, we affirm.

         I. Background

         A. Basis for Investigations and Administrative Reviews

         Pursuant to 19 U.S.C. § 1673, Commerce imposes an antidumping duty on foreign merchandise if: (1) it determines that the merchandise "is being, or is likely to be, sold in the United States at less than its fair value, " and (2) the International Trade Commission ("ITC") determines that the sale of the merchandise at less than fair value materially injures, threatens, or impedes the establishment of an industry in the United States. If an interested party files a petition with Commerce on behalf of an industry alleging that foreign merchandise warrants the imposition of an antidumping duty under § 1673, Commerce initiates an antidumping duty investigation. 19 U.S.C. § 1673a. As part of this investigation, Commerce calculates a "normal value" for the subject merchandise- the price at which the "foreign like product" is sold in the exporting country or in a representative country if, inter alia, the exporting country has a market situation that does not permit a proper comparison-so that it can compare the export price of the foreign merchandise with the normal value. Id. § 1677b.

         If Commerce and the ITC conclude that the imports or sales of the subject merchandise are governed by § 1673, Commerce issues an antidumping duty order. Id. § 1673d(c)(2). The amount of the antidumping duty is "the amount by which the normal value exceeds the export price (or the constructed export price) for the merchandise." Id. § 1673. If requested, Commerce conducts a yearly administrative review of the antidumping duty order and calculates a new antidumping duty rate. Id. § 1675(a)(1)-(2).

         B. Commerce's Investigation into Diamond Sawblades

         On May 3, 2005, Diamond Sawblades Manufacturers Coalition ("DSMC") filed a petition on behalf of the domestic industry and workers producing diamond saw-blades regarding imports of diamond sawblades. Preliminary Determination of Sales at Less than Fair Value, Postponement of Final Determination, and Preliminary Partial Determination of Critical Circumstances: Diamond Sawblades and Parts Thereof from the People's Republic of China (Investigation Preliminary Determination), 70 Fed. Reg. 77, 121, 77, 121 (Dep't of Commerce Dec. 29, 2005). In response to the petition, Commerce initiated an investigation on June 21, 2005. Id. In its final determination, Commerce found that diamond sawblades from the PRC were being, or were likely to be, sold in the United States at less than fair value. Final Determination of Sales at Less Than Fair Value and Final Partial Affirmative Determination of Critical Circumstances: Diamond Sawblades and Parts Thereof from the People's Republic of China (Investigation Final Determination), 71 Fed. Reg. 29, 303, 29, 303 (Dep't of Commerce May 22, 2006). The ITC separately found that the importation of diamond sawblades from the PRC threatened a United States industry with material injury. See Diamond Sawblades and Parts Thereof from China, Inv. No. 731-TA-1092, USITC Pub. 4559, 2015 ITC LEXIS 1140, at *3- 4 (Sept. 1, 2015) (Review).

         In the Investigation Final Determination, Commerce acknowledged that, in proceedings involving non-market-economy ("NME") countries, Commerce "begins with a rebuttable presumption that all companies within the country are subject to government control." 71 Fed. Reg. at 29, 307. Based on this presumption, Commerce assigns all exporters of the subject merchandise in a NME country a single antidumping duty rate "unless an exporter ...


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