N OTE : This disposition is nonprecedential. 

# United States **Court of Appeals**  **for the Federal Circuit**

______________________

DIAMOND SAWBLADES MA NUFACTURERS COALITION, Plaintiff

- Appellant

v.

UNITED STATES, Defendant

- Appellee

BEIJING GANG YAN DIAMOND PRODUCTS COMPANY, GANG YAN DIAMOND PRODUCTS, INC., Defendants

- Cross

- Appellants

CLIFF INTERNATIONAL, LTD., Defendant

HUSQVARNA CONSTRUCTION PRODUCTS NORTH AMERICA, INC., HEBEI HUSQVARNA

JIKAI DIAMOND TOOLS CO., LTD., WEIHAI XIANGGUANG MECHANICAL INDUSTRIAL CO., LTD., BOSUN TOOLS CO., LTD., BOSUN TOOLS , INC., Defendants

- Appellees

______________________

2016

- 1254, 2016

- 1255

______________________DIAMOND SAWBLADES MA NUFACTURER v. UNITED STATES 2

Appeals from the United States Court of International Trade in No. 1:13

- cv

- 00241

- RKM, Senior Judge R. Kenton Musgrave.

______________________

Decided: August 7 , 2017

______________________

D ANIEL B. P ICKARD , Wiley Rein, LLP, Washington, D C, argued for plaintiff

- appellant

. Also represented by U SHA N EELAKANTAN , M AUREEN E. T HORSON

.

J OHN J ACOB T ODOR , Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for defendant

- appellee United States . Also represented by B ENJAMIN C. M IZ ER , J EANNE E. D AVIDSON , F RANKLIN E. W HITE , J R .; A MANDA T. L EE , Office of Chief Counsel for Trade Enforcement and Co mpliance, U nited S tates Department of Commerce, Was hington, DC.

J EFFREY S. N EELEY , Husch Blackwell LLP, Washin gton, DC, argued for defendant s- cross

- appellants. Also represented by M ICHAEL S COTT H OLTON

.

T HOMAS M. B ELINE , Cassidy Levy Kent (USA) LLP, Washington, DC, argued for defendants -appellees Husqvarna Construction P roducts North America, Inc., Hebei Husqvarna

- Jikai Diamond Tools Co., Ltd

. Also represented by J ENNIFER H ILLMAN

.

M AX F RED S CHUTZMAN , Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP, New York, NY, argued for defendant

- appellee Weihai Xiangguang Mechanical Industrial Co., Ltd. Also represented by B RUCE M. M ITCHELL ; D HARMENDRA N ARAIN C HOUDHARY , K AVITA M OHAN , Washington, DC; A NDREW S CHROTH , Hong Kong, China.DIAMOND SAWBLADES MA NUFACTURER v. UNITED STATES 3

G REGORY S. M ENEGAZ , DeKieffer & Horgan, PLLC, Washington, DC, argued for defendants

- appellees Bosun Tools Co., Ltd., Bosun Tools, Inc. Also represented by J AMES K EVIN H ORGAN , A LEXANDRA H. S ALZMAN

.

D ANIEL L. P ORTER , Curtis, Mallet

- Prevost, Colt & Mosle LLP, Washington, DC, for amici curiae Shanghai Huayi Group Corporation Limited, China Manufacturers Alliance. Also represented by J AMES P. D URLING , C LAUDIA D ENISE H ARTLEBEN ; G ENE C. S CHAERR , Schaerr Duncan, Washington, DC

.

W ILLIAM A LFRED F ENNELL , Stewart & Stewart, Was hington, DC, for amici curiae Titan Tire Corporation

, United Steel, Paper and Forestry, Rubber, Manufactu ring, Energy, Allied Industrial and Service Workers Inte rnational Union, AFL

- CIO

- CLC. Also represented by N ICHOLAS J. B IRCH , L ANE S. H UREWITZ , T ERENCE P ATRICK S TEWAR T

.

______________________

Before L OURIE , O’M ALLEY , and T ARANTO , Circuit Judges.

O’M ALLEY , Circuit Judge.

Diamond Sawblades Manufacture rs Coalition (“DSMC”) appeals from a decision of the Court of Intern ational Trade (“CIT”) upholding the Department of Co mmerce’s (“Commerce”) determination t hat a targeted dumping allegation made by DSMC w as untimely

. See Diamond Sawblades Mfrs. Coalition v. United States ( CIT Decision ), 2015 Ct. Int’l Trade LEXIS 116 (Ct. Int’l Trade Oct. 21, 2015). 1 Commerce conclude d that DSMC’s all e-

1 Targeted dumping involves situations in which sales of comparable merchandise exhibit a pattern of export prices that “differ significantly among purchasers, regions, or periods of time

. ” 19 U.S.C. § 1677f

-DIAMOND SAWBLADES MA NUFACTURER v. UNITED STATES 4

gation was untimely because it was filed after Commerce issued its preliminary results in the second administr ative revie w of the antidumping duty order for diamond sawblades and parts thereof from the People’s Republic of China (“PRC”). See Diamond Sawblades and Parts Thereof from the People’s Republic of China: Final Results of Antidumping Duty Admin. Review : 2010

- 2011 ( F inal Results ) , 78 Fed. Reg. 36,166 (Dep’t of Commerce June 17, 2013) ; Diamond Sawblades and Parts Thereof from the People’s Republic of China: Amended Final Results of Antidumping Duty Admin. Review ( Amended Final R esults ), 78 Fed. Reg. 42,930 (Dep’t of Commerce July 18, 2013).
Advanced Technology & Materials entity (“ATM”), comprised of Beijing Gang Yan Diamond Products Co mpany , Gang Yan Diamond Products, Inc., and other affil iated companies, cross

- appeals to challenge the CIT’s decision affirming Commerce ’s determination to apply the PRC

- wide entity rate to ATM in this administrative review. See CIT Decision , 2015 Ct. Int’l Trade LEXIS 116, at *4

– 5; Diamond Sawblades Mfrs. Coalition v. United States ( Final Remand Redetermination ) , Court No. 13

- 00241, slip op. 14

- 112 (Dep’t of Commerce May 18, 2015)

, http://enforcement.trade.gov/remands/14

- 112.pdf

. ATM ’s cross

- appeal is related to an appeal in Di amond Sawblades Manufacturers Coalition v. United States (Diamond Sawblades I ), Case No. 2016

- 1253, also decided today. Both opinions involve administrative reviews of the antidumping duty order Commerce issued after its initial investigation into the potential dumping of diamond sawblades and parts thereof from the People’s Republic of China (“PRC”). This opinion addresses Co mmerce’s second administrative review of the antidumping

1(d)(1)(B)(i); see also U.S. Steel Corp. v. United States , 621 F.3d 1351, 1359 (Fed. Cir. 2010).DIAMOND SAWBLADES MA NUFACTURER v. UNITED STATES 5

duty rate, covering the period 2010

– 20 11, and the co mpanion opinion in Diamond Sawblades I addresses the first administrative review, covering the period 2009

– 20 10. Because the facts and procedural history in the two cases are closely related, we will not repeat here our discussion of those issues, except to the extent the facts and procedural history relevant to this administrative review extend beyond what we cover in Diamond S a wblades I

. Because Commerce erred in rejecting DSMC’s targe ted dumping allegation as untimely, we vacate the CIT’s decision on that question and remand for further procee dings regarding th o se allegations. Because we vacate Commerce’s decision on the targ eted dumping allegation, we also vacate the CIT’s decision affirming Commerce’s determination of the margin for the non

- selected separate rate respondents and remand for further proceedings in conjunction with the consideration of the targeted dum ping alle gation s

. F or the reasons explained in our opinion in Diamond Sawblades I , we affirm the CIT’s decision upholding Commerce’s final remand redetermination applying the recalculated PRC

- wide entity rate to ATM.

I. B ACKGROUND

A . DSM C’s Targeted Dumping Allegation

Commerce conducted a second administrative review

, covering t he period from November 1, 2010 through October 31, 2011, of an antidumping duty order previou sly imposed on imports of diamond sawblades from the PRC

. Commerce issued the preliminary results of the second administrative review of the antidumping duty order with an effective date of December 10, 2012

. See Diamond Sawblades and Parts Thereof from the People’s Republic of China: Preliminary Results of Anti dumping Duty Admin. Review: 2010

- 2011 ( Preliminary Results ) , 77 Fed. Reg. 73,417 (Dep’t of Commerce Dec. 10, 2012). Before the preliminary results, DSMC had not made anyDIAMOND SAWBLADES MA NUFACTURER v. UNITED STATES 6

allegations in the proceedings regarding targeted dum ping.

Pursuant to 19 C.F.R. § 35 1.309, Commerce permit s interested parties to file case briefs commenting on the preliminary results. On February 19, 2013, 7 1 days after the effective date of the preliminary results, DSMC filed its case brief. See CIT Decision , 2015 Ct. Int’l Trade LEX IS 116, at *12. In its case brief, DSMC asked Co mmerce to initiate a targeted dumping inquiry regarding sales of Weihai Xiangguang Mechanical Industrial Co. (“Weihai”). On February 25, 2013, Weihai presented comments and arguments in opposition to DSMC’s alleg ations, as authorized by 19 C.F.R. § 351.309.

On June 1 7 , 2013, Commerce issued the final results of the second administrative review. See Final Results , 78 Fed. Reg. at 36,166

– 68

. In the Issues and Decisions Memorandum accompanying the final results , Commerce found DSMC’s targeted dumping allegation untimely and refused to consider it on the merits

. In th e M emorandum, Commerce acknowledged that it “has not established specific deadlines for when the Department will accept targeted dumping all egations in administrative reviews.” J.A. 101. But Commerce found that DSMC had “ample opportunity to have filed its targeted dumping allegation prior to December 3, 2012, and certainly prior to its case brief” given the “elapsed time between the issuance of the respondent’s questionnaire responses and the issuance of the Preliminary Results .” Id.
Commerce also explained that the timing of DSMC’s targeted dumping allegation did not provide sufficient time for Commerce to complete its analysis while givin g interested parties an opportunity to comment on the analysis

. Id. Commerce pointed to an administrative review in another case in which the petitioner had su bmitted its targeted dumping allegation prior to the iss uance of the preliminary results, which gave CommerceDIAMOND SAWBLADES MA NUFACTURER v. UNITED STATES 7

time to analyze the allegation, issue a post

- preliminary analysis for comment, and complete the analysis before issuing its final results

. Id. Commerce stated that DSMC’s timing of its targeted dumping allegation “did not provide Weihai or other interested parties with sufficient time to adequately review and comment on such an allegation” and “raise[d] due process concerns.” Id.
DSMC appealed Commerce’s finding of untimeliness. DSMC argued that Commerce had not established dea dlines outs ide of the requirements of 19 C.F.R. § 351.309 for submitting a targeted dumping allegation. While the appeal to the CIT in this administrative review was pending, the CIT issued its decision in the investigation proceedings, finding that ATM did not qualify for a sep arate rate because it failed to rebut Commerce’s presum ption of government cont rol applicable to non

- market

economy countries

. See J.A. 12; see also Advanced Tech. & Materials Co. v. United States , 938 F. Supp. 2d 1342 (Ct. Int’l Trade 2013). Commerce requested a voluntary remand to reconsider its separate rate determination in thi s administrative review. J.A. 12. In its order reman ding the case to Commerce, the CIT also requested that Commerce provide additional explanation as to its stat utory authority to decline to c onsider targeted dumping issues . J.A. 16

– 17.

On remand , Comme rce further explained its decision not to consider DSMC’s targeted dumping al legation. See Final Remand Redetermination , slip op. 14

- 112 , at 30

– 32

. Commerce explained that, unlike for initial investig ations, the relevant statutes did not mandate the cons ideration of an alternative comparison method in administrative reviews; instead, Commerce said it unde rt akes such a consideration as an agency practice

, using 19 U.S.C. § 1677f

- 1(d)(1)(B) as guidance. Id. at 10

– 11
, 30

– 32. Commerce also explained that it had “established the practice” of initiating a targeted dumping analysis when a party presented an allegation “at a reasonable time beforeDIAMOND SAWBLADES MA NUFACTURER v. UNITED STATES 8

the preliminary determinations in investigations and preliminary results in reviews.” Id. at 11 ; see also id. at 31

– 32

. T he CIT affir med Commerce’s determination regar ding the targeted dumping allegation

. See CIT Decision

, 2015 Ct. Int’l Trade LEXIS 116 , at *6

– 14

. It reasoned that Commerce correctly reject ed DSMC’s targeted d um ping allegation because Commerce’s “ F inal Modification ” regarding the calculation of dumping margins noted that

a new policy would apply to reviews in which “preliminary determinations” were not due for at least 60 days from the date of publication of the new policy , such as in this case

. Id

. at *11

– 12 (citing Antidumping Proceedings: Calcul ation of the Weighted

- Average Dumping Margin and A ssessment Rate in Certain Antidumping Duty Proceedings; Final Modification ( Final Modification ) , 77 Fed. Reg. 8101, 810 1 (Dep’t of Commerce Feb. 14, 2012) ). The CIT also reasoned that, although “there were no established or articulated deadlines for the filing of targeted dumping allegations for administrative reviews, the DSMC were not, apparently, unaware of Commerce’s apparent targe ted dumping practice, in particular with respect to invest igations, which requires an allegation thereof prior to the preliminary determination.” Id. at *12. The CIT found Commerce’s explanation that interested parties needed an opportunity to comment on the results of a targ eted dumping analysis “not inherently unreasonable .” Id. at *12– 13.

B . ATM Receives the PRC

- Wide Entity Rate
During th is second administrative review, Commerce initially found that ATM had demonstrated sufficient independence from state control to qualify for a separate rate. After Commerce rendered its decision, however, the CIT issued a decision in Advanced Technology & Mater ials Co.

, affirming Commerce’s determination in the initial investigation proceedings that ATM did not qualify for aDIAMOND SAWBLADES MA NUFACTURER v. UNITED STATES 9

separa te rate because it failed to rebut the presumption of state control

. 938 F. Supp. 2d 1342 , 1345

– 53 (Ct. Int’ l Trade 2013).

Based on the decision in Advanced Technology & Materials Co. , Commerce asked for a voluntary remand to reconsider its analysis of AT M’s rate in the second admi nistrative review

. On remand, Commerce determined that ATM was not entitled to a separate rate

, but should instead receive the PRC

- wide entity rate. Commerce also determined that the additional information it had r eceived from ATM made it appropriate for Commerce to recalculate the PRC

- wide entity rate to 82.05% , down from 164.09%

. On appeal to the CIT, ATM argued that Commerce’s decision to use the PRC

- wide entity rate w as unreason able. The CIT relied on the same reasoning it employed in the first administra tive review and sustained the applic ation of th e PRC

- wide entity rate to ATM.

II. D ISCUSSION We apply the same standard of review used by the CIT in reviewing determinations made by Commerce. AMS Assocs., Inc. v. United States , 737 F.3d 1338, 1342 (Fed. Cir. 2013). We will uphold Commerce’s determin ation unless it is “unsupported by substantial evidence on the record, or otherwise not in accordance with law.” 19 U.S.C. § 1516a(b)(1)(B)(i); see also Dupont Teijin Films U

SA, LP v. United States , 407 F.3d 1211, 1215 (Fed. Cir. 2005).

A. Dumping Margins in Administrative Reviews
Commerce calculates a foreign exporter’s dumping margin by comparing its export price to the normal value of the relevant merchandise. 19 U.S.C. § 1677(35)(A). When performing the comparison, Commerce can use one of three methods: average

- to

- average, transaction

- to

transaction, or average

- to

- transaction. See Union Steel v.DIAMOND SAWBLADES MA NUFACTURER v. UNITED STATES 10

United States , 713 F.3d 1101, 1103 (Fed. Cir. 2013). Since 1995, Commerce has defaulted to using the average

- to

average or transaction

- to

- transaction methods in initial investigation proceedings, pursuant to 19 U.S.C. § 1677f

1(d)(1)(A). Union Steel , 713 F.3d at 1104. But 19 U.S.C. § 1677f

- 1(d)(1)(B) specifies an exception for those procee dings that allows Commerce to use the average

- to

transaction methodology when analyzing targeted dum ping

. Union Steel , 713 F.3d at 1104 n.3.
Although t he relevant statutory framework establis hes which comparison method should be used in initi al antidumping duty investigations, the statute does not specify which methodology Commerce should use in an administrative review. In 2012, Commerce published the Final Modification

, stating that it would use the average

to

- average method as the default method for annual administrative reviews. Final Modification , 77 Fed. Reg.
at 8104, 8106 –0 7. Although the average

- to

- average method became the default method , Commerce reserved the r ight to use an alternative comparison method on a

case

- by

- case basis. Id. at 8104. Commerce indicated that the changes specified in the notice would go into effect for all ongoing reviews with at least 60 days remaining until the scheduled issuance of th e preliminary results. Id. at 8 111. When Commerce published the notice regarding the default comparison method for annual administrative reviews, Commerce did not specify a deadline for a party to request that Commerce consider the use of an altern ative comparison methodology, such as the average

- to

transaction method

, for targeted dumping . Commerce also did not issue any memoranda or notice s providing a

separa te deadline for such requests.DIAMOND SAWBLADES MA NUFACTURER v. UNITED STATES 11

During the pendency of this case, 2 Commerce did not have any regu lations specifying the time period for ma king targeted dumping allegations in antidumping duty investigations or administrative reviews thereof

. While parties once were required to make targeted dumping allegations at least 30 days before the preliminary determina tion in investigations , s ee Withdrawal of the Regul atory Provisions Governing Targeted Dumping in Antidumping Duty Investigations ( Targeted Dumping Regulation 2008 ), 73 Fed. Reg. 74,930, 74,930 ( Dep’t of Commerce Dec. 10, 2008), Commerce withdrew th at rule in 2008. Id. at 74,930

– 31. Commerce explained that it promulgated the rule at a time when it “had never pe rformed a targeted dumping analysis,” and

, thus

, had promulgat ed the regulation “without the benefit of any departmenta l experience on the issue of targeted dum ping.” Id. at 74,930. Commerce noted, however, that it had seen very few allegations or findings of targeted dumping by 2008, leading Commerce to question whether it had established an impractical deadline for sub mitting such allegations. Id. It determined that a “withdrawal of

2 As the government explains, Commerce changed its methodology in 2013 for determining whether an alternative comparison methodology is appropriate. See Xantham Gum from the People’s Republic of China: Final Determination of Sales at Less Than Fair Value , 7 8 Fed. Reg. 33,351, 33,352 (Dep’t of Commerce June 4, 2013). Rather than employ a targeted dumping analysis, Co mmerce now uses a differential pricing analysis to dete rmine whether an alternative comparison methodology is appropriate. Commerce also conduc ts a differential pricing analysis in every segment of a proceeding, thereby negating the need for a party such as DSMC to make a targeted dumping allegation before Commerce will co nsider whether to apply an alternative comparison met hodology.DIAMOND SAWBLADES MA NUFACTURER v. UNITED STATES 12

the provisions will provide the agency with an opportun ity to analyze extensively the concept of targeted dumping and develop a meaningful practice in this area as it gains experience in e valuating such allegations.” Id. at 74,930

– 31. It also clarified that Commerce was “not replacing these provisions with new provisions” but instead “retur ning to a case

- by

- case adjudication, until additional exper ience allows the Department to gain a gre ater understanding of the issue.” Id. at 74,931.
After 2008, Commerce specified when targeted dum ping allegations were due in some initial investigations, but did not establish a policy applying to all investig ations and reviews

. No deadlines were ever s pecified in this case, and Commerce points to no rule or order which DSMC allegedly violated.

B. Timeliness of DSM C’s Targeted Dumping Allegation
DSMC argues that the CIT erred in sustain ing Co mmerce’s decision rejecting DSMC’s targeted dumping allegation as untimely

. DSMC asserts that, because it had no notice of a deadline for filing a targeted dumping allegation, it properly filed its allegation in its case brief, which , in accordance with 19 C.F.R. § 351.309, must
pr esent all arguments that a party believes are relevant to Commerce’s final determination

. Because its case brief complied with 19 C.F.R. § 351.309 and included the targeted dumping allegation, DSMC argues that Co mmerce’s decision to reject the targeted dumping allegation as untimely was unsupported by substantial evidence and contrary to law. We agree.
The parties dispute whether Commerce had esta blished a regular practice of requiring the submission of targeted dumping allegations prior to the issuance of preliminary results on three grounds . First, the parties dispute whether the Final Modification , explaining that the new policy outlined there would become effective for reviews in which the preliminary results would issue atDIAMOND SAWBLADES MA NUFACTURER v. UNITED STATES 13

least 60 days after the p olicy’s publication, directed parties to submit targeted dumping allegations sufficiently in advance of the preliminary results. Second, the parties dispute whether Commerce’s decisions in previous admi nistrative reviews, particularly Purified Carboxymeth y lcellulose From Finland; Notice of Preliminary Results of Antidumping Duty Administrative Review , 77 Fed. Reg. 47,036 (Dep’t of Commerce Aug. 7, 2012), and Circular Welded Carbon Steel Pipes from Turkey: Final Results of Antidumping Duty Administrative Re view , 77 Fed. Reg. 72,818 (Dep’t of Commerce Dec. 6, 2012), put parties on notice of an obligation to submit targeted dumping alleg ations prior to Commerce ’s preliminary results. And third, the parties dispute whether Commerce’s regular practice in initia l antidumping investigations constituted notice that Commerce required parties to submit targeted dum ping allegations in administrative reviews before Co mmerce issued its preliminary results.
As explained in more detail below, w e agree with DSMC that none o f the actions to which Appellee s point in support of the decision in this case established a r equirement that targeted dumping allegations be made prior to Commerce’s preliminary results. As DSMC contends, Commerce and the CIT pointed to “no single regul ation, Federal Register notice, prior precedent or other communication made to the bar in general or the DSMC in particular that provides actual or constructive notice of any deadline for filing targeted dumping alleg ations in administrative reviews, much less a pre

preliminary deadline.” Appellant’s Resp./Reply Br. 43. Indeed, Commerce even admitted in the Issues and Dec ision Memorandum accompanying the final results of this administrative review that it “has not established specific deadlines for when the Department will accept targeted dumping allegations in administrative reviews.” J.A. 101. We conclude that Commerce’s decision to reject the all egations as untimely because DSMC submitted the alleg a-DIAMOND SAWBLADES MA NUFACTURER v. UNITED STATES 14

tions after Commerce released the preliminary results

— despite DSMC having no notice of such a requirement

— is not supported by substantial evidence and is not in a ccordance with law

. 1. The Final Modification

T he Final Modification d id not indicate t hat Co mmerce was adopting a practice that parties were to submit targeted dumping allegations prior to the release of preliminary results. The Final Modification ended Co mmerce’s historical default practice of using “ zeroing ” methodologies and instead mad e the average

- to

- average methodology the default methodology

, while reserving to Commerce the right to use an alternative methodology on

a case

- by

- case basis if the criteria of 19 U.S.C. § 1677f

1(d)(1) were met.
While considering the effective date of imp lement ation for the changes laid out in the Final Modification

, Commerce reviewed submissions from “[a] number of commentators” that supported a wide range of impleme ntation deadlines. Final Modification , at 8110. Many proposed that Commerce should imple ment a 60

- day delay because the new method might “confuse interested parties in several different ways” when applied to pending
matters. Id. Other s proposed that it would be unfair for Commerce to apply the new policy to any administrative reviews alread y under consideration. Id. Still others

propose d shorter or longer time frames. Id.

After considering the comments , Commerce decided to apply the changes to all reviews in which the scheduled date for the preliminary results was at least 60 days after the publication date of the Final Modification

. Id. at 8111. Commerce determined that this timing was appr opriate so that parties could submit any new data and provide comment on the changes that it would render to the individual administrative review at issue. Id. Co mmerce’s review of the effective date for implementation,DIAMOND SAWBLADES MA NUFACTURER v. UNITED STATES 15

however, did not include any discussion regarding the timeline required for a party to request the application of a targeted dumping methodology . Instead, the policy described the methodology that Commerce would apply in administrative reviews, and Commerce provided time for parties to consider the changes.

Commerce’s decision i n Circular Welded Carbon Steel Pipes from Turkey further refute s Appellees’ argument that the Final Modification supports Commerce’s reaso ning in this case. In the final results of that administrative review, Commerce stated , “ when the Department recently announced that it would consider whether to use an alternative comparison method in administrative reviews

on a case

- by

- case basis, the announcement contained no guidelines on the filing of a request to apply an altern ative comparison method. ” Circular Welded Carbon Steel Pipes from Turkey

, 77 Fed. Reg. at 72,820. Contrary to assertions by the A ppellees, the Final Modification did not establish, or even hint at , any requirement that parties submit targeted dumping allegations prior to the issuance of preliminary results.

2. Commerce’s Decisions in Previous Administrative Reviews

T he two administrative review decisions identified by the parties did not establish a requirement by Commerce that parties submit targeted dumping allegations before the preliminary results. In Purified Carboxymethylcell ulose From Finland , Commerce stat ed that it “ has not established a deadline for targeted dumping allegations in admini strative reviews, and so it would be unreasonable to reject this allegation as ‘untimely’ where no such time limit was established.” 77 Fed. Reg. at 47,038. Although the petitioner in that administrative review filed targeted dumping allegations 45 days before the scheduled date for the preliminary results, Commerce clearly state d that it would have been unreasonable to reject the allegation asDIAMOND SAWBLADES MA NUFACTURER v. UNITED STATES 16

untimely because Commerce “ ha[d] not established a deadline for targeted dumping allegations in administr ative r eviews

. ” Id. (emphasis added). While Commerce also noted that the petitioner’s submission of the targeted dumping allegations in Purified Carboxymethylcellulose From Finland would have met the “ typical ” investigation timeline for submitting targeted dump ing allegations, it did not specify th at timeline as a precondition to conside ring the allegation. See i d.

Commerce’s decision in Circular Welded Carbon Steel Pipes from Turkey is similar . When deciding that the targeted dumping allegations in that revie w were timely, Commerce provided this reasoning:
Importantly, neither section 777A(d)(1)(B) of the Act nor the SAA provide any deadline as to when an interested party must file a targeted dumping allegation in either an investigation or an admi nistrative review

. Similarly, the Department’ s regulations do not provide for such a deadline in an investigation or an administrative review

. Moreover, when the Department recently a nnounced that it would consider whether to use an alternative comparison method in administrative reviews on a case

- by

- case basis, the announc ement contained no guidelines on the filing of a r equest to apply an alternative comparison method. Further, the Departmen t’ s current practice r egarding the submission of a targeted dumping a lleg ation in the initiation notice for an antidumping investigation is limited to antidum ping investigations and not administrative reviews

. Finally, by permitting Borusan to comment on the Post

- Preliminary Analysis and to submit add itional factual informatio n in support of its co mments, the D epartment has preserved Borusan’ s right to comment on the targeted dumping alleg a-DIAMOND SAWBLADES MA NUFACTURER v. UNITED STATES 17

tion. For these reasons, the D epartment finds that U.S. Steel’ s allegation was timely filed.

Issues and Decision Memorandum for the Final Results of the Antidumping Duty Administrative Review: Circular Welded Carbon Steel Pipes and Tubes from Turkey , A

- 489

- 501, at cmt. 1 (footnotes omitted).
Commerce made no mention of a pre

- preliminary r esults deadline for targeted dumping allegations. Co mm erce instead noted that (1) there is no deadline provided by statute or regulation for administrative reviews ; (2) even to the extent it employed a regular practice for targeted dumping requests, that practice was not e mployed in administrative reviews; an d (3) there is no unfairness to allowing targeted dumping allegations where the opposing party has an opportunity to comment on the merits of those allegations. The same reasoning applies here.
In addition to Commerce’s express recognition that it had no established deadline for submitting targeted dumping allegations, the fact that it did consider targeted dumping allegations after the preliminary results in these other administrative reviews further undercuts the A ppe llees’ argument that these reviews somehow put DSMC on notice that it was required to submit targeted dumping allegations before the preliminary results. For example, in Purified Carboxymethylcellulose From Finland , Co mmerce stated that it had “not conducted a targeted dum ping analysis” fo r the preliminary results. 77 Fed. Reg. at 47,038. The government acknowledged in its brief that Commerce did not complete the targeted dumping anal ysis in that administrative review until after the release of the preliminary results. U.S. B r

. 27

– 28. A nd in Circular Welded Carbon Steel Pipes from Turkey , Commerce e xplained that it provided a “Post

- Preliminary Analysis” of the targeted dumping allegations. 77 Fed. Reg. at 72,820. Commerce al so “preserved” the parties’ “right to commentDIAMOND SAWBLADES MA NUFACTURER v. UNITED STATES 18

on the targeted dumping allegation” despite issuing its analysis after the preliminary results. Id.
Commerce’s willingness to release its review of ta rgeted dumping allegations after the preliminary results, and to allow for a separate comment period after that relating to the preliminary results, shows that Commerce could have done the same thing in this case

, and that DSMC was not on notice that Commerce would refuse to do so . Indeed, Commerce even stated in Purified Carbo xymethylcellulose From Finland that it would co ntinue to consider “whether another method is appropriate in this administrative review in light of the parties’ pre

preliminary comments and any comments on the issue that parties may include in their case and rebuttal briefs .” 77 Fed. Reg. at 47,038 (em phasis added). Commerce’s willingness to consider comments related to another methodology in the case briefs filed by the parties in Purified Carboxymethylcellulose From Finland while refusing to do so here indicates that Commerce’s decis io n in this case is not in accordance either with its own pra ctices or with law

. 3. Commerce’s Practice in Investigation Proceedings

Commerce’s practice in investigations similarly did
not establish a pre

- preliminary results deadline for ta rgeted dumping allegations that would apply to admini strative reviews . As discussed above, the history of regulations in the investigation context shows that Co mmerce withdrew the regulations relating to a deadline for targeted dumping allegations in 2008 because it needed to cond uct further analysis. Targeted Dumping Regulation 2008 , 73 Fed. Reg. at 74,930

– 31 . Commerce also e xplained that it was “not replacing these provisions with new provisions” but instead “returning to a case

- by

- case adjudication, until additional experience allows the D epartment to gain a greater understanding of the issue.” Id.DIAMOND SAWBLADES MA NUFACTURER v. UNITED STATES 19

As Appellees note

, Commerce includes a deadline in initiation notices for initial investigations that requires parties to submit targeted dumping allegations 45 days prior to the is suance of the preliminary results. Co mmerce’s failure to include a similar deadline for admini strative reviews shows that Commerce treated administrative reviews differently. Indeed, Commerce

even broke from the typical 45

- day requirement in initial inve stigations when it accepted targeted dumping alleg ations filed about 15 days prior to the preliminary results date in Circular Welded Carbon Steel Pipes from Turkey

. See 77 Fed. Reg. at 72,818 . DSMC therefore had notice both that Commerce did not apply t he same deadlines it used for investigations to administrative reviews , and that, even in initial investigations , those deadlines were not hard

- and

- fast rules. DSMC simply had no reason to believe that it needed to satisfy any timing requi rements established by Commerce for investigations in this admi nistrative review

. 4. Remaining Arguments and Other Considerations

We find t he remaining argument s set forth by A ppe llees similarly unpersuasive. Appellees acknowledge that Commerce extended the deadline for the final results in this case because of a need to address other methodology calculation issues

, and they provide no reason why Co mmerce likewise could not have extended the deadline for the final resul ts to consider the targeted dumping alleg ation while allowing time for comments. This argument seems particularly weak given that Commerce did not complet e its antidumping analysis in Purified Carbo xymethylcellulose From Finland until after the issuance o f the preliminary results, thereby requiring Commerce to undertake some comment process after the preliminary results had been issued, just as it could have done in this

case. See 77 Fed. Reg. at 47,038. A ppellees’ reliance on cases decided after this ad ministrative review is equally unpersuasive . Commerce’s actions after this case couldDIAMOND SAWBLADES MA NUFACTURER v. UNITED STATES 20

not have provided DSMC with notice of a deadline by which it would need to file a targeted dumping allega tion here

. Because Commerce never established regulations or gui delines creating a deadline for filing targeted dumping allegations and because DSMC never had any other notice of a deadline for filing targeted dumping allegations, Commerce’s rejection of DSMC’s argument as untimely when it was raised as an argument in DSMC’s case brief,

as authorized by 19 C.F.R. § 351.309, is unsupported by law. We therefore vacate the CIT’s decision affirming Commerce’s decision regarding DSMC’s targeted dumping allegation s and remand for further consideration. W e express no opinion on the merits of the targeted dumping allegation, particularly given that Weihai’s merits arg uments were not considered below.

C. Margin for Non

- Selected Separate Rate Respondents
Commerce’s calculation of the dumping margin for

non

- selected s eparate rate respondents in this second administrative review was based entirely on Weihai’s final margin. See Final Remand Redetermination , slip op. 14

- 112, at 9

– 10. DSMC asserts that Commerce’s failure to consider the targeted dumping allegation calls Weihai’s dumping margin into question, thereby undermining the dumping margin of the non

- selected separate rate r espondents. DSMC requests that we vacate and remand this issue for further consideration consistent with any future analysis of the targeted d umping allegation. All parties agree that this issue depends entirely on our decision with respect to the targeted dumping allegation, and A ppellees provide no separate argument for affirming the margin for the non

- selected separate rate respon dents. Bec ause we vacate Commerce’s decision regarding the timeliness of DSMC’s targeted dumping allegation, we similarly vacate and remand this issue for further consi d-DIAMOND SAWBLADES MA NUFACTURER v. UNITED STATES 21

eration in light of any analysis performed with respect to DSMC’s targeted dumping allegation aga inst Weihai.
D. ATM’s Receipt of the PRC

- Wide Entity Rate
ATM challenges Commerce’s application of the PRC

wide entity rate to ATM in the second administrative review and the CIT’s decision affirming Commerce’s order doing that. ATM’s arguments in this a dministrative review mirror its arguments from the first administrative review, which we have considered and decided in Di amond Sawblades I

. Because the substance of ATM’s arguments on this issue do not extend beyond those considered in our opinion relati ng to the first administr ative review, we affirm for the same reasons provided in that opinion.

III. C ONCLUSION For the foregoing reasons, we affirm in part, vacate in part, and remand for further consideration in light of this opinion.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED IN PART

C OSTS

No costs.