CIT Again Remands Separate Rate Determination in China Diamond Sawblades AD Investigation
The Court of International Trade remanded, for the second time, the International Trade Administration’s determination that Advanced Technology & Minerals Co. (AT&M) was not state-controlled and was therefore eligible for a separate rate in the antidumping investigation of diamond sawblades and parts thereof from China (A-570-900). The ITA’s explanation from the first remand was inadequate, the court said, but CIT declined to otherwise express an opinion on the ITA’s determination.
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AT&M, a respondent in the 2005-06 AD investigation, was governed by a nine person board of directors consisting of four representatives from the Central Iron and Steel Research Institute (CISRI), which was in turn owned by one of China’s state-owned assets supervision and administration commissions (SASAC). Nonetheless, ITA said the state could not exercise de facto or de jure control over the company because, among other things, CISRI is a passive investor and is itself insulated from government control, and the AT&M company law in any case protects the company from government interference.
The Diamond Sawblades Manufacturers Coalition, which represents domestic industry, argued that CISRI even identifies itself as a state-owned entity. Also, Chinese regulations provide that companies in which SASAC invests must accept supervision and administration conducted by SASAC, further casting doubt on CISRI’s independence, DSMC said. The group also contested the ITA’s finding that AT&M’s company law prohibits government interference, and said the ITA did not sufficiently address whether the other five members of the AT&M board were connected with the state.
“Commerce’s analytical assumptions are not based on common or business sense,” agreed CIT. For example, discussing the independence of CISRI from state control, CIT noted that the regulations give SASAC the authority to appoint or remove managers at entities it controls. Furthermore, said CIT, AT&M’s company law is ambiguous on whether it frees the company from government control. Rather, said CIT, it simply says such control will be in accordance with the amount of capital the state-owned enterprise has invested in the company. Finally, said CIT, the ITA did not adequately analyze government control of the board of directors, but rather only how many directors were representatives of CISRI. The remaining five directors could have been government representatives in a different form, CIT said.
CIT also remanded the ITA’s valuation of AT&M’s steel plate inputs.
(See ITT's Online Archives 11110803 for summary of CIT's first remand.)
(Advanced Tech. & Materials Co., Ltd v. United States, CIT Slip Op. 12-147, dated 11/30/12, public version posted 12/10/12, Judge Musgrave)
(Attorneys: Jeffery Neely of Barnes Richardson for plaintiffs AT&M, Beijing Gang Yan Diamond Products Company, and Gang Yan Diamond Products, Inc.; Delisa Sanchez for defendant U.S. government; Daniel Pickard of Wiley Rein for defendant-intervenor DSMC.)