Trade Court Sides With Industry In Fight Over Sawblades Sunset Review

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By Rossella Brevetti

Sept. 24 — Federal agencies unlawfully launched a review of an antidumping duty order, exposing the domestic diamond sawblades industry to the expense of defending the order prematurely, the Court of International Trade (CIT) ruled.

The decision faulting the Commerce Department and the International Trade Commission (ITC) on the “sunset” review of the antidumping order on diamond sawblades from China was one of two rulings in favor of the domestic diamond sawblades industry issued by the CIT on Sept. 23.

“These decisions are important steps toward ensuring that the domestic industry gets the relief to which it is entitled by law, and that U.S. workers are protected from the harmful effects of dumped imports,” Daniel B. Pickard, Wiley Rein LLP, plaintiff's counsel, said in a statement.

Under the Uruguay Round Agreements Act, an antidumping order must be revoked after five years unless Commerce determines that revocation would likely lead to the recurrence of dumping and the ITC determines that it would lead to material injury.

The Diamond Sawblades Manufacturers' Coalition—the plaintiff here—brought the original petition leading to the order. Most of the coalition's members—Diamond Products, Elyrio, Ohio; Terra Diamond, Salt Lake City, Utah; Hyde Tools Inc., Southbridge, Mass.; and Western Saw Inc., Oxnard, Calif.—manufacture the domestic like product in the U.S.

Commerce published the antidumping order Nov. 4, 2009, to address a court order but stated that its effective date was Jan. 23, 2009. Following publication, Commerce consistently used the Nov. 4 date for purposes of initiating three administrative reviews. However, Commerce used Jan. 23, 2009, as the date to calculate the five-year period after which to conduct the sunset review, based on the order's stated effective date.

Under 19 U.S.C. § 1675(c), Commerce and the ITC are authorized to conduct their review after five years have passed from the “date of publication” of an antidumping duty order.

In challenging the review, the plaintiff argued that it stood to deprive the industry of nearly a year of relief while forcing them to expend time and resources in a way not provided for by law.

Judge Richard K. Eaton agreed, ordering the agencies to cease further proceedings and rejecting Commerce's jurisdictional challenges.

Court Relies on Clear Language

The court stated that the statute's plain language explicitly directs Commerce to begin a sunset review “5 years after the date of publication” of an antidumping duty order in the Federal Register. “[U]se of any date other than November 4, 2009 as the ‘date of publication' conflicts with the plain meaning of the statute and, thus, fails as a matter of law,” the court said.

Use of the Nov. 4, 2009, date is consistent with Commerce's application of the phrase “date of publication” in other parts of the statute, the court said. “As the Department acknowledges, it has consistently treated the ‘date of publication' of antidumping duty orders as the same date for administrative reviews and sunset reviews,” the court said. “Indeed, to accept any other result would be to adopt inconsistent definitions of the same term, not only within the same statute, but within the same section of the statute.”

Further, using the Jan. 23, 2009, date is inconsistent with Commerce's interpretation of the phrase “date of publication” when commencing administrative reviews of the order and would violate Commerce's past practice, the court said.

The defendants' argument that the statutory scheme confirms use of the Jan. 23 date is “unconvincing because it does not take into account either the notice function of publication or the purpose of sunset reviews,” the court wrote. The court rejected the defendants' theory of notice by “constructive publication,” commenting that no one was put on notice either “constructively or actually” of the order until Nov. 4, 2009.

“As the Department points out, it is unlikely that the facts present here will be repeated,” the court said. “If true, then no practice or precedent will be established by this case. Therefore, the time for correcting this one-time mistake has come.”

The court ordered Commerce to rescind the final results, cease activity on the challenged sunset review and initiate a sunset review on Nov. 4, 2014.

Daniel B. Pickard and Maureen E. Thorson, Wiley Rein LLP, argued for the plaintiff. Alexander V. Sverdlov, trial attorney with the Justice Department, argued for Commerce.

To contact the reporter on this story: Rossella Brevetti in Washington at rbrevetti@bna.com

To contact the editor responsible for this story: Jerome Ashton at jashton@bna.com

The court's decision is available at http://www.bloomberglaw.com/public/document/DIAMOND_SAWBLADES_MANUFACTURERSTM_COALITION_Plaintiff_v_UNITED_ST/3.