CIT Blocks Liquidation, But Not Revocation, in China Diamond Sawblades Case
The Court of International Trade granted the Diamond Sawblades Manufacturing Coalition’s request for a preliminary injunction to prevent liquidation of entries of diamond sawblades from China produced and/or exported by Advanced Technology & Materials Co., Ltd., but denied the coalition’s request for an injunction against revocation of the antidumping duty order for the company.
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The International Trade Administration had announced in a March 27 Section 129 determination its intent to revoke the AD duty order for AT&M (see 13032716). The Section 129 recalculation, which pursuant to a World Trade Organization ruling eliminated the zeroing methodology used for AT&M in the original diamond sawblades investigation, would have resulted in a zero AD rate for AT&M. Companies that receive zero rates in investigations are excluded from resulting AD/CV duty orders.
DSMC is currently pursuing a challenge of AT&M's AD rate from the investigation for different reasons: according to the coalition, AT&M should not have been allowed a separate rate in the investigation. Instead, it should have been assigned the China-wide entity rate of 164.09 percent, the coalition has argued. The China-wide rate from the investigation was decided on the basis of adverse facts available, and not based on normal dumping calculations. So if DSMC wins its challenge, and AT&M is assigned the China-wide rate, elimination of zeroing would do nothing to change the above-zero dumping margin, and AT&M would still be subject to the AD order even after implementation of the WTO ruling against zeroing.
Entries of subject merchandise from AT&M had already been subject to a temporary restraining order issued March 6 (see 13031423). Given its ruling against DSMC's request for injunction against revocation for AT&M, the court dissolved the temporary restraining order that also prevented revocation for the company.
The court’s preliminary injunction enjoining liquidation came down despite the government’s arguments that CIT had no jurisdiction. Although DSMC is currently challenging the original investigation before the court, said the government, Section 129 proceedings to implement WTO rulings are separate proceedings from investigations. According to the government, DSMC had to wait for the final Section 129 determination to issue, and then challenge the action and the corresponding revocation.
The court, however, found that the results of the DSMC’s challenge of the investigation, currently on remand at the ITA, are closely tied to the Section 129 proceeding. If DSMC prevails, and AT&M is found not to qualify for a separate rate, the Section 129 proceeding would be directly affected because the elimination of zeroing wouldn't affect AT&M's inclusion in the AD order.
DSMC would suffer irreparable harm if entries at issue in its court challenge were liquidated, because there would be no way to later assess antidumping duties if it prevails in the case, CIT said. It also has some likelihood of success in its court action, and would suffer more hardship than the government or AT&M if the entries were liquidated. The public interest would also be served by an injunction, the court said.
On the other hand, DSMC would not suffer irreparable harm in the absence of a preliminary injunction against partial revocation through the Section 129 proceeding. Liquidation of the entries at issue would still be suspended, and the court could always go back and reverse the ITA’s determination. Therefore, CIT denied DSMC’s request for a preliminary injunction against partial revocation for AT&M.
Email ITTNews@warren-news.com for a copy of the order for preliminary injunction.
(Advanced Tech. & Materials Co., Ltd. v. United States, Slip Op. 13-42, dated 03/28/13, Judge Musgrave)
(Attorneys: Jeffery Neely of Barnes Richardson for plaintiffs Advanced Technology & Materials Co., Ltd., Beijing Gang Yan Diamond Products Company, and Gang Yan Diamond Products, Inc.; Melissa Devine for defendant U.S. government; Daniel Pickard for defendant-intervenor Diamond Sawblades Manufacturers Coalition.)