Appeals from the United States Court of International Trade in Nos. 1:06-cv-00248-RKM, 1:09-cv-00508-RKM, 1:09-cv-00509-RKM, 1:09-cv-00510-RKM, Senior Judge R. Kenton Musgrave.
DANIEL B. PICKARD, Wiley Rein, LLP, Washington, DC, argued for plaintiff-appellee. Also represented by MAUREEN E. THORSON.
JEFFREY S. GRIMSON, Mowry & Grimson, PLLC, Washington, DC, argued for plaintiff-appellant Hyosung D& P Co., Ltd. Also represented by JILL A. CRAMER, KRISTIN HEIM MOWRY, SARAH M. WYSS.
MARK PARDO, Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP, Washington, DC, argued for plaintiff-appellant Ehwa Diamond Industrial Co., Ltd. Also represented by ANDREW THOMAS SCHUTZ; MAX FRED SCHUTZMAN, NED H. MARSHAK, BRUCE M. MITCHELL, New York, NY.
ALEXANDER V. SVERDLOV, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for defendant-appellee United States. Also represented by FRANKLIN E. WHITE, JR., BENJAMIN C. MIZER; AMAN KAKAR, Office of Chief Counsel for Trade Enforcement and Compliance, United States Department of Commerce, Washington, DC.
MICHAEL PAUL HOUSE, Perkins Coie, LLP, Washington, DC, for defendants-appellees SH Trading, Inc., Shinhan Diamond Industrial Co., Ltd. Also represented by DAVID JOHN TOWNSEND.
Before TARANTO, PLAGER, and LINN, Circuit Judges.
Taranto, Circuit Judge.
In late 2006, the Department of Commerce announced that it was changing one of the methods it uses to calculate whether imported goods are being sold in the United States at less than fair value, i.e., being dumped. Commerce also addressed the issue of what dumping proceedings would be governed by the new policy, which generally made it more difficult to find dumping. When two companies found to have dumped in the present case--Hyosung D& P Co., Ltd. and Ehwa Diamond Industrial Co., Ltd.--argued that their case is among those governed by the new policy, Commerce disagreed. We uphold Commerce's determination, because Commerce spoke ambiguously on the timing issue in adopting its new policy and Commerce reasonably resolved the ambiguity to exclude the present matter.
Commerce and the International Trade Commission share responsibility for investigations about whether an antidumping duty should be imposed on goods being imported in the United States, and they proceed in two stages--first making certain preliminary determinations and then, for those investigations which proceed, making final determinations. See 19 U.S.C. § § 1673-1677n. Commerce investigates and ultimately determines whether the goods at issue are being or are likely to be sold in the United States at less than fair value, as measured in various ways specified by statute. § § 1673(1), 1673d(a), 1677-1677n. The Commission determines whether a domestic industry is " materially injured" or threatened with material injury, or whether establishment of a domestic industry is materially retarded, by reason of imports or sales for which Commerce has made an affirmative determination ( i.e., found dumping). § § 1673(2), 1673d(b)(1). The statute provides for issuance of an antidumping-duty order--imposing import duties in amounts keyed to the magnitude of the underpricing--if both agencies make the specified affirmative final determinations against the imports, and it provides for termination of the investigation if either agency does not make those determinations. § § 1673, 1673d(c)(2); see 19 C.F.R. § § 351.205(a), 351.210(a). Specified determinations of Commerce and the Commission are reviewable in the Court of International Trade, 19 U.S.C. § 1516a,
and then this court, 28 U.S.C. § ...