Parkdale International Ltd. v. United States

Slip Op. 07-159

UNITED STATES COURT OF INTERNATIONAL TRADE
______________________________
:
PARKDALE INTERNATIONAL LTD., :
:
Plaintiff, :
: Before: Richard K. Eaton, Judge
v. :
: Court No. 07-00166
UNITED STATES, :
:
Defendant. :
______________________________:

MEMORANDUM OPINION

[Plaintiff’s Motion for a Preliminary Injunction granted.]

Dated: October 31, 2007

Hunton & Williams, LLP (Richard P. Ferrin), for plaintiff.

Peter D. Keisler, Assistant Attorney General; Jeanne E. Davidson,
Director, Commercial Litigation Branch, Civil Division, United
States Department of Justice (Stephen C. Tosini); Office of the
Chief Counsel for Import Administration, United States Department
of Commerce (Mark B. Lehnardt), for defendant.

Eaton, Judge: Before the court are the motion of plaintiff

Parkdale International Ltd. (“Parkdale” or “plaintiff”) for a

preliminary injunction pursuant to USCIT Rule 65(a) and the

response to Parkdale’s motion of defendant the United States

(“defendant”).1 See Pl.’s Mot. Prelim. Inj. (“Pl.’s Mot.”);

Pl.’s Br. Supp. Mot. Prelim. Inj. (“Pl.’s Mem.”); Def.’s Resp.

Pl.’s Mot. Inj. (“Def.’s Resp.”); Def.’s Suppl. Resp. Pl.’s Mot.

1
Pursuant to the temporary restraining order entered on
May 18, 2007, the United States is presently restrained from
liquidating the entries that are the subject of Parkdale’s
complaint. See Parkdale Int’l Ltd. v. United States, Court No.
07-00166 (CIT May 18, 2007).
Court No. 07-00166 Page 2

Prelim. Inj. (“Def.’s Suppl. Resp.”). By its motion, Parkdale

seeks to enjoin liquidation of its entries of certain corrosion-

resistant carbon steel flat products (“CORE”) from Canada,

entered on or after September 26, 2000. For the following

reasons, the court finds that it has jurisdiction pursuant to 28

U.S.C. § 1581(i)(4) (2000)2 and grants Parkdale’s motion for a

preliminary injunction.

BACKGROUND

Parkdale is an importer of CORE from Canada. Compl. ¶ 3.

In the early 1990s, CORE was the subject of an antidumping

investigation. As a result of that investigation, the United

States Department of Commerce (“Commerce” or the “Department”)

issued an antidumping duty order on CORE from Canada (the

“Order”) in 1993. See Certain CORE and Certain Cut-to-Length

Carbon Steel Plate From Canada, 58 Fed. Reg. 44,162 (Dep’t of

Commerce Aug. 19, 1993) (antidumping duty order). The Order was

later amended in 1995. See Certain CORE and Certain Cut-to-

Length Carbon Steel Plate From Canada, 60 Fed. Reg. 49,582 (Dep’t

of Commerce Sept. 26, 1995) (amended final determination).

2
Subsection 1581(i)(4) grants this Court exclusive
jurisdiction to entertain “any civil action commenced against the
United States, its agencies, or its officers, that arises out of
any law of the United States providing for . . . (4)
administration and enforcement with respect to the matters
referred to in paragraphs (1)–(3) of this subsection and
subsections (a)–(h) of this section.” 28 U.S.C. § 1581(i)(4).
Court No. 07-00166 Page 3

On September 1, 1999, Commerce and the United States

International Trade Commission (“ITC” or the “Commission”)

commenced a “sunset review”3 of the Order, and determined,

respectively, that revocation of the Order was likely to lead to

the continuation or recurrence of dumping and material injury to

an industry in the United States. Thus, Commerce published

notice of the continuation of the Order in the Federal Register,

which by its terms was effective as of December 15, 2000. See

Continuation of Antidumping and Countervailing Duty Orders on

Certain Carbon Steel Prods. from Australia, Belgium, Brazil,

Canada, Finland, France, Germany, Japan, South Korea, Mexico,

3
Administrative reviews, including five-year or “sunset”
reviews, are covered in § 1675 of Title 19 of the United States
Code. Subsection 1675(c) provides the general rule for sunset
reviews:

Notwithstanding subsection (b) of this
section and except in the case of a
transition order defined in paragraph (6), 5
years after the date of publication of—

(A) . . . an antidumping duty order
. . . or

(C) a determination under this
section to continue an order . . .,

[Commerce] and the Commission shall conduct a
review to determine, in accordance with . . .
[19 U.S.C. § 1675a], whether revocation of
the . . . antidumping duty order . . . would
be likely to lead to continuation or
recurrence of dumping . . . and of material
injury.

19 U.S.C. § 1675(c)(1) (2000).
Court No. 07-00166 Page 4

Poland, Romania, Spain, Sweden, Taiwan, and the United Kingdom,

65 Fed. Reg. 78,469, 78,470 (Dep’t of Commerce Dec. 15, 2000)

(notice).

Five years later, on November 1, 2005, Commerce and the ITC

commenced the second sunset review of the Order. See Initiation

of Five-year (“Sunset”) Revs., 70 Fed. Reg. 65,884 (Dep’t of

Commerce Nov. 1, 2005) (notice). In the second sunset review,

while Commerce determined that revocation of the Order would

likely result in the continuation or recurrence of dumping, the

ITC determined that revocation of the Order would not be likely

to lead to the continuation or recurrence of material injury to a

domestic industry within a reasonably foreseeable time. See

Certain Carbon Steel Prods. From Australia, Belgium, Brazil,

Canada, Finland, France, Germany, Japan, Korea, Mexico, Poland,

Romania, Spain, Sweden, Taiwan, and the United Kingdom, 72 Fed.

Reg. 4529 (ITC Jan. 31, 2007) (final determination).4 As a

result, the Order was revoked. See 19 C.F.R. § 351.218(a) (2006)

(providing for revocation of an order based on a sunset review if

either Commerce’s or the ITC’s determination is negative);

4
The full text of the ITC’s final determination is
contained in Volumes I and II of Certain Carbon Steel Products
from Australia, Belgium, Brazil, Canada, Finland, France,
Germany, Japan, Korea, Mexico, Poland, Romania, Spain, Sweden,
Taiwan, and the United Kingdom, USITC Pub. 3899, Inv. Nos.
AA1921-197 (Second Rev.); 701-TA-319, 320, 325-327, 348, and 350
(Second Rev.); and 731-TA-573, 574, 576, 578, 582-587, 612, and
614-618 (Second Rev.) (Jan. 2007).
Court No. 07-00166 Page 5

Certain CORE from Australia, Canada, Japan, and France, 72 Fed.

Reg. 7010 (Dep’t of Commerce Feb. 14, 2007) (notice of

revocation) (“Revocation Notice”). In its Revocation Notice,

Commerce stated that “[p]ursuant to [19 U.S.C. § 1675(d)(2)]5 and

19 C.F.R. § 351.222(i)(2)(i), the effective date of revocation is

December 15, 2005 (i.e., the fifth anniversary of the date of

publication in the Federal Register of the notice of continuation

of the [Order]).” Revocation Notice, 72 Fed. Reg. at 7011.

Parkdale then brought this action pursuant to the

Administrative Procedure Act, 5 U.S.C. § 702 (2000).6 Parkdale

seeks judicial review of the effective date of the Revocation

Notice and invokes the Court’s residual jurisdiction provision,

28 U.S.C. § 1581(i)(4). Compl. ¶¶ 1, 2. Parkdale insists that

5
This subsection provides that Commerce “shall revoke”
an order unless two conditions are met:

(A) [Commerce] makes a determination that
dumping . . . would be likely to continue or
recur, and

(B) the Commission makes a determination that
material injury would be likely to continue
or recur as described in [19 U.S.C.
§ 1675a(a)].

19 U.S.C. § 1675(d)(2).
6
The Administrative Procedure Act provides that a person
who has suffered a legal wrong or has been “adversely affected or
aggrieved by agency action within the meaning of a relevant
statute,” 5 U.S.C. § 702, may seek judicial review of “final
agency action for which there is no other adequate remedy in a
court . . . .” Id. § 704.
Court No. 07-00166 Page 6

the revocation of the Order should be effective as of September

26, 2000, i.e., the fifth anniversary of the September 26, 1995

amendment to the Order, not December 15, 2005, as Commerce found.

Compl. ¶ 3; Pl.’s Mot. 6 n.1. By its motion, Parkdale argues

that without a preliminary injunction in place during the

pendency of this action its entries, that are covered in the

complaint, will be subject to liquidation, which would render its

underlying claim moot. Pl.’s Mot. 3. Defendant opposes

Parkdale’s motion, arguing that the Court does not have

jurisdiction to hear Parkdale’s underlying claim, and that, in

any event, Parkdale has failed to establish that a preliminary

injunction is warranted here. Def.’s Resp. 1.

STANDARD OF REVIEW

Parkdale bears the burden of establishing that a preliminary

injunction is warranted in light of four factors: (1) the

likelihood that Parkdale will succeed on the merits of its claim;

(2) that Parkdale will suffer irreparable harm without the

requested injunctive relief; (3) that the balance of hardships

tips in Parkdale’s favor; and (4) that granting the requested

relief would not be contrary to the public interest. See FMC

Corp. v. United States, 3 F.3d 424, 427 (Fed. Cir. 1993) (citing,

inter alia, Zenith Radio Corp. v. United States, 710 F.2d 806,

809 (Fed. Cir. 1983)). In determining whether the movant has
Court No. 07-00166 Page 7

carried its burden and satisfied the four-part test, “[n]o one

factor, taken individually, is necessarily dispositive.” Id.

Indeed, “[a]s a basic proposition, the matter lies largely within

the sound discretion of the [Court].” Id. (citations omitted).

DISCUSSION

I. Likelihood of Success on the Merits

A. The Court Has Jurisdiction
Under 28 U.S.C. § 1581(i)(4)

The Court of Appeals for the Federal Circuit has held that

“[t]he question of jurisdiction closely affects the [movant]’s

likelihood of success on its motion for a preliminary

injunction.” U.S. Ass’n of Imps. of Textiles & Apparel v. United

States Dep’t of Commerce, 413 F.3d 1344, 1348 (Fed. Cir. 2005).

In its complaint, Parkdale alleges that the Court has

jurisdiction under 28 U.S.C. § 1581(i)(4) to hear its challenge

to “Commerce’s implementation date of the revocation of the

[Order], pursuant to the determination by the [ITC] that

revocation of this antidumping duty order would not be likely to

lead to continuation or recurrence of material injury to the U.S.

industry within a reasonably foreseeable time.” Compl. ¶ 1.

Parkdale argues that providing notice that an order has been

revoked is a “ministerial act,” not a reviewable determination

under 19 U.S.C. § 1516a (2000), and that therefore jurisdiction

under 28 U.S.C. § 1581(c) is either not available, or is
Court No. 07-00166 Page 8

“manifestly inadequate.” Pl.’s Mem. 3-5. Parkdale insists the

Court has jurisdiction to hear its claim under § 1581(i)(4) based

on the reasoning set forth in Canadian Wheat Board v. United

States, 31 CIT __, 491 F. Supp. 2d 1234 (2007) (“CWB”). Pl.’s

Mem. 4. As the Federal Circuit stated in Miller & Co. v. United

States, 824 F.2d 961, 963 (Fed. Cir. 1987), “[s]ection 1581(i)

jurisdiction may not be invoked when jurisdiction under another

subsection of § 1581 is or could have been available, unless the

remedy provided under that other subsection would be manifestly

inadequate.” Id. (citation omitted); see also CWB, 31 CIT at __,

491 F. Supp. 2d at 1240. Thus, the court must address, as an

initial matter, defendant’s contention that jurisdiction under 28

U.S.C. § 1581(i)(4) is improper because, as defendant asserts,

plaintiff could have brought a claim challenging the Revocation

Notice under § 1581(c).

Defendant argues that Commerce’s decision to revoke the

Order is a final determination reviewable under 28 U.S.C.

§ 1581(c). Defendant bases this argument on Commerce’s statement

in the Revocation Notice that it was revoking the Order pursuant

to 19 U.S.C. § 1675(d)(2). Because final determinations made

under § 1675 are expressly referenced in 19 U.S.C.

§ 1516a(a)(2)(B)(iii), defendant contends that 28 U.S.C.

§ 1581(c), which grants this Court “exclusive jurisdiction of any

civil action commenced under [19 U.S.C. § 1516a],” was available
Court No. 07-00166 Page 9

to Parkdale as the proper basis of the Court’s jurisdiction. See

28 U.S.C. § 1581(c); see also Def.’s Resp. 3-4; Def.’s Suppl.

Resp. 4-6.

The court finds that the reasoning in CWB addresses the

jurisdiction question presented here and, as in CWB, finds that

the court has jurisdiction to hear Parkdale’s claim under 28

U.S.C. § 1581(i)(4). In CWB, the ITC issued a negative material

injury determination with respect to imports of Canadian hard red

spring wheat after a North American Free Trade Agreement

(“NAFTA”) panel7 remanded the ITC’s original, affirmative injury

determination. Accordingly, Commerce published a Timken notice8

and a notice of revocation of the antidumping and countervailing

duty orders on Canadian hard red spring wheat.

The notice of revocation indicated that Commerce would

7
The court notes that the procedural histories of CWB
and the instant case differ because in CWB the parties appealed
the ITC’s material injury decision to a NAFTA panel instead of
this Court, as is their right under article 1904 of NAFTA. This
distinction does not compel a different result in this case
because in both cases, plaintiffs sought judicial review of legal
conclusions Commerce stated in the notices of revocation, which
were not reached in the context of a reviewable determination.
See discussion infra at 11-13.
8
Title 19 U.S.C. § 1516a(c)(1) requires that Commerce
publish notice of a Court decision “not in harmony” with an
original agency determination. The same rule applies with a
NAFTA panel decision. See 19 U.S.C. § 1516a(g)(5)(B).
Subsection 1516a(c) was the subject of Timken Co. v. United
States, 893 F.2d 337, 340 (Fed. Cir. 1990), and notices issued
pursuant to that subsection have come to be known as Timken
notices. See CWB, 31 CIT at __, 491 F. Supp. 2d at 1238 n.4.
Court No. 07-00166 Page 10

instruct Customs and Border Protection to liquidate, without

duties, only those imports that entered the United States after

the effective date of the Timken notice. Entries made prior to

the effective date of the Timken notice would be liquidated at

the then-prevailing rates under the antidumping and

countervailing duty orders, even though the foundation of the

orders had been removed. Plaintiff sought judicial review of

Commerce’s legal conclusion that the Timken notice would have

prospective effect only and sought an injunction to prevent the

liquidation of entries entered prior to the date of the Timken

notice. See CWB, 31 CIT at __, 491 F. Supp. 2d at 1236-39.

The CWB Court held that Commerce’s conclusion that

liquidation without duties would be prospective only, stated for

the first time in the notice of revocation, was not a reviewable

final determination within the meaning of 19 U.S.C.

§ 1516a(a)(2)(B)(i):

Commerce’s arguments notwithstanding, the
court finds that the Notice of Revocation is
not a reviewable final determination under 19
U.S.C. § 1516a and, as a result, plaintiff
had no remedy available to it under 28 U.S.C.
§ 1581(c). While the agency may have had
internal discussions regarding the contents
of the Notice of Revocation, its legal
conclusion that the revocation of the orders
should be prospective only, was reached
without notice, public hearings or briefing
by the parties and was outside of the
reviewable determinations found in 19 U.S.C.
§ 1516a. In other words, the Notice of
Revocation “was not made during any
proceeding that would culminate in a
Court No. 07-00166 Page 11

determination for which judicial review is
provided under 19 U.S.C. § 1516a and 28
U.S.C. § 1581(c).”

CWB, 31 CIT at __, 491 F. Supp. 2d at 1241-42 (quoting Ceramica

Regiomontana, S.A. v. United States, 5 CIT 23, 26, 557 F. Supp.

596, 600 (1983) (emphasis in original)). Thus, because the

decision at issue was not a “final determination” subject to

judicial review under 19 U.S.C. § 1516a, the Court found that 28

U.S.C. § 1581(c) was not available as a basis for jurisdiction.

As a result, the Court held that jurisdiction was proper under 28

U.S.C. § 1581(i)(4) to hear the plaintiff’s challenge to

Commerce’s administration and enforcement of the ITC’s negative

injury determination. Id. at __, 491 F. Supp. 2d at 1243. That

is, the Court had the authority to hear a challenge to Commerce’s

decision that liquidation of entries would be prospective only

under § 1581(i) because relief was not available under § 1581(c).

As a result, it also had jurisdiction to issue an injunction

while the case was being heard.

Defendant attempts to distinguish this case from CWB on the

ground that CWB addressed the meaning of “final determination” in

the context of § 1516a(a)(2)(B)(i), not § 1516a(a)(2)(B)(iii).

For defendant, because the effective date of the revocation was

set in the context of a sunset review rather than following a

finding that the Order was invalid ab initio, CWB is not valid

precedent. Def.’s Resp. 8. The court is not persuaded by this
Court No. 07-00166 Page 12

argument. Both the antidumping/countervailing duty determination

that was the subject of CWB and the sunset review at issue here

are listed as reviewable by the Court pursuant to 19 U.S.C.

§ 1516a. While § 1516a references decisions made pursuant to

§ 1671d and § 1673d as well as sunset reviews, it does so in the

context of providing for judicial review of “[f]inal

determinations” made pursuant to those sections. See 19 U.S.C.

§§ 1516a(a)(2)(B)(i) (providing for judicial review of “final

affirmative determinations by [Commerce] and by the Commission

under section 1671d or 1673d . . . including any negative part of

such a determination . . .”) & (iii) (providing for judicial

review of “[a] final determination . . . by [Commerce] or the

Commission under . . . [19 U.S.C. § 1675]”).

Just as in CWB, however, the requirement that Commerce’s

action be a “final determination” reviewable under 19 U.S.C.

§ 1516a is not satisfied here. As with the Commerce conclusion

in CWB that liquidation, without duties, of the entries covered

by the orders at issue there would be prospective only,

Commerce’s conclusion here concerning the effective date of

revocation was not a part of the ITC’s final negative injury

determination. Rather, it was a conclusion made by Commerce

after the final determination was issued. See Norsk Hydro Can.,

Inc. v. United States, 472 F.3d 1347, 1355 (Fed. Cir. 2006)

(stating this Court must “look to the true nature of [an] action”
Court No. 07-00166 Page 13

in determining jurisdiction) (internal quotation marks & citation

omitted). Thus, as in CWB, Commerce’s legal conclusion that the

revocation of the Order would be effective as of December 15,

2005, “was reached without notice, public hearings or briefing by

the parties and was outside of the reviewable determinations

found in 19 U.S.C. § 1516a.” CWB, 31 CIT at __, 491 F. Supp. 2d

at 1242. In other words, the Revocation Notice “was not made

during any proceeding that would culminate in a determination for

which judicial review is provided under 19 U.S.C. § 1516a and 28

U.S.C. § 1581(c).” Ceramica Regiomontana, S.A., 5 CIT at 26, 557

F. Supp. at 600 (emphasis in original). Accordingly, the court

concludes that jurisdiction under 28 U.S.C. § 1581(c) was not

available to Parkdale to challenge the Revocation Notice.

The court further concludes that jurisdiction under 28

U.S.C. § 1581(i)(4) is available to Parkdale. Again, CWB is

instructive. In CWB, the Court analyzed Consolidated Bearings

Co. v. United States, 348 F.3d 997 (Fed. Cir. 2003), and Shinyei

Corp. of America v. United States, 355 F.3d 1297 (Fed. Cir.

2004), where the Federal Circuit held that § 1581(i) provided the

jurisdictional basis for review of Commerce’s liquidation

instructions. See CWB, 31 CIT at __, 491 F. Supp. 2d at 1242-43.

As the CWB Court explained:

In Consolidated Bearings, an importer
challenged Commerce’s liquidation
instructions to Customs, seeking to compel
Court No. 07-00166 Page 14

the application of the antidumping duty rates
from the Department’s final determination to
its merchandise. The Federal Circuit
confirmed jurisdiction under 28 U.S.C.
§ 1581(i) after finding that “Consolidated
[did] not object to the final results.
Rather Consolidated [sought] application of
those final results to its entries . . . .”
The Federal Circuit based its finding on its
conclusion that plaintiff’s “case involve[d]
a challenge to [Commerce’s] 1998
instructions, which is not an action defined
under [19 U.S.C. § 1516a].” The Federal
Circuit further found that “[b]ecause
Consolidated [was] not challenging the final
results, [28 U.S.C. § 1581(c)] is not and
could not have been a source of jurisdiction
for this case.” Finally, after concluding
that jurisdiction did not lie pursuant to
§ 1581(c), the Federal Circuit found the case
“squarely within the provisions of subsection
(i).” Specifically, the Federal Circuit
observed that “Commerce’s liquidation
instructions direct Customs to implement the
final results of administrative reviews.
Consequently, an action challenging
Commerce’s liquidation instructions is not a
challenge to the final results, but a
challenge to the ‘administration and
enforcement’ of those final results.”

Id. at __, 491 F. Supp. 2d at 1242-43 (quoting Consol. Bearings

Co., 348 F.3d at 1002; alterations in original). The CWB Court

continued:

Likewise, the Federal Circuit found in
Shinyei Corp. of America v. United States,
355 F.3d 1297 (Fed. Cir. 2004), that
Commerce’s liquidation instructions were
reviewable under 28 U.S.C. § 1581(i)(4):

As we have recently held, a
challenge to Commerce instructions
on the ground that they do not
correctly implement the published,
amended administrative review
Court No. 07-00166 Page 15

results, “is not an action defined
under [19 U.S.C. § 1516a] of the
Tariff Act.” [19 U.S.C.
§ 1516a] is limited on its face to
the judicial review of
“determinations” in countervailing
duty and antidumping duty
proceedings.

Id. at __, 491 F. Supp. 2d at 1243 (quoting Shinyei Corp. of Am.,

355 F.3d at 1309; alterations in original). Upon concluding its

review of the Consolidated Bearings and Shinyei cases, the CWB

Court reasoned that “if a legal conclusion, found in liquidation

instructions based on Commerce’s own final determination, is

reviewable under 28 U.S.C. § 1581(i), then a legal conclusion

found in the Notice of Revocation resulting from an ITC final

determination is too.” Id. at __, 491 F. Supp. 2d at 1243.

As with the challenges to agency actions in Consolidated

Bearings, Shinyei and CWB, Parkdale’s challenge to the Revocation

Notice is a challenge to the “administration and enforcement” of

the ITC’s final negative injury determination in a sunset review,

namely, the effective date of revocation of the Order, not to the

ITC’s final determination. Indeed, “as the prevailing party,

[Parkdale] had no dispute with the ITC’s final negative

determination that resulted in the [Revocation Notice].” CWB, 31

CIT at __, 491 F. Supp. 2d at 1242. The court therefore finds

that Commerce’s conclusion that the revocation shall be effective

as of the fifth anniversary of the publication of notice of

continuation of the Order, rather than the fifth anniversary of
Court No. 07-00166 Page 16

publication of the original Order, is reviewable under 28 U.S.C.

§ 1581(i)(4).

B. Parkdale Has Sufficiently Demonstrated
a Likelihood of Success on the Merits

Having found jurisdiction in this case, the court next turns

to whether Parkdale has sufficiently demonstrated that it is

likely to succeed on the merits of its claim. The standard that

a party seeking a preliminary injunction must satisfy to

establish a likelihood of success on the merits remains unsettled

by the Federal Circuit; however, several competing standards have

been articulated: (1) whether the movant has raised “serious,

substantial, difficult, and doubtful” questions regarding the

merits; (2) “[whether] the likelihood of success and harm-related

prongs are viewed as a continuum in which the required showing of

harm varies inversely with the required showing of

meritoriousness”; and (3) “[whether] the movant [has

demonstrated] at least a fair chance of success on the

merits . . . .” U.S. Ass’n of Imps. of Textiles & Apparel, 413

F.3d at 1347 (internal quotation marks omitted). This Court

recently observed,

The [Federal Circuit] appears to have
accepted a sliding scale approach regarding
the standard for likelihood of success on the
merits: the greater the potential harm to the
movant if the court denies injunctive relief,
the lesser the burden on the movant to make
the required showing of likelihood of success
Court No. 07-00166 Page 17

on the merits.

Corus Staal BV v. United States, 31 CIT __, __, 493 F. Supp. 2d

1276, 1283 n.10 (2007) (citing Ugine & Alz Belg. v. United

States, 452 F.3d 1289, 1293 (Fed. Cir. 2006); Mikohn Gaming Corp.

v. Acres Gaming, Inc., 165 F.3d 891, 895 (Fed. Cir. 1998)). In

any event, it is clear that the court must, at minimum, weigh

Parkdale’s arguments in favor of its position against those

raised in opposition by defendant. See U.S. Ass’n of Imps. of

Textiles & Apparel, 413 F.3d at 1347 (“[T]he movant’s evidence

and arguments must actually be weighed against those of the

non-movant to determine whether the movant’s likelihood of

success meets the applicable standard, whatever that standard may

be.”) (citations & footnote omitted).

To understand the parties’ arguments, a recitation of the

relevant statutes and regulations is necessary. Title 19 U.S.C.

§ 1675 covers administrative reviews, including sunset reviews.

In the case of a review of a transition order, like the Order

here,9 special rules apply. See 19 U.S.C. § 1675(c)(6). These

9
A transition order is “an antidumping duty order under
[Title 19] . . . which [was] in effect on the date the [World
Trade Organization (“WTO”)] Agreement enter[ed] into force with
respect to the United States.” 19 U.S.C. § 1675(c)(6)(C). The
WTO Agreement entered into force in the United States on January
1, 1995. See Proclamation No. 6763, 60 Fed. Reg. 1007 (Jan. 4,
1995). That date, January 1, 1995, shall be treated as the date
a transition order was issued, “if such order is based on an
investigation conducted by both [Commerce] and the Commission.”
19 U.S.C. § 1675(c)(6)(D). Here, the Order is a transition
(continued...)
Court No. 07-00166 Page 18

rules provide a schedule for the initiation and completion of

administrative reviews, including sunset reviews, subsequent

reviews and the revocation of transition orders:

(A) Schedule for reviews of transition orders

(i) Initiation

[Commerce] shall begin its review
of transition orders in the 42d
calendar month after the date such
orders are issued. A review of all
transition orders shall be
initiated not later than the 5th
anniversary after the date such
orders are issued.

(ii) Completion

A review of a transition order
shall be completed not later than
18 months after the date such
review is initiated. Reviews of
all transition orders shall be
completed not later than 18 months
after the 5th anniversary of the
date such orders are issued.

(iii) Subsequent reviews

The time limits set forth in
clauses (i) and (ii) shall be
applied to all subsequent 5-year
reviews of transition orders by
substituting “date of the
determination to continue such
orders” for “date such orders are
issued”.

9
(...continued)
order. It was issued in 1993 and amended in September of 1995.
Thus was in effect as of January 1, 1995. Moreover, it was based
on an investigation conducted by Commerce and the ITC, and
therefore is to be treated as issued on January 1, 1995.
Court No. 07-00166 Page 19

(iv) Revocation and termination

No transition order may be revoked
under this subsection before the
date that is 5 years after the date
the WTO Agreement enters into force
with respect to the United States.

19 U.S.C. § 1675(c)(6)(A). Revocation of an order, regardless of

whether it is a transition order, is governed by 19 U.S.C.

§ 1675(d)(2), and shall occur when either Commerce or the ITC

makes a negative determination. See 19 C.F.R. § 351.218(a).

Here, because the ITC made a negative injury determination in the

second sunset review, the Order was revoked.

Subsection 351.222(i) of Commerce’s regulations set out the

rules and procedures that Commerce must follow in revoking an

order based on a sunset review. With respect to the effective

date of revocation, Commerce’s regulations provide:

(i) In general. Except as provided in
paragraph (i)(2)(ii) of this section, where
[Commerce] revokes an order . . . , pursuant
to . . . [19 U.S.C. § 1675(d)(2)] (see
paragraph (i)(1) of this section), the
revocation . . . will be effective on the
fifth anniversary of the date of publication
in the Federal Register of the order . . . .
This paragraph also applies to subsequent
sunset reviews of transition orders (see
paragraph (i)(2)(ii) of this section and [19
U.S.C. § 1675(c)(6)(A)(iii)]).

(ii) Transition orders. Where the Secretary
revokes a transition order (defined in [19
U.S.C. § 1675(c)(6)]) pursuant to . . . [19
U.S.C. § 1675(d)(2)] (see paragraph (i)(1) of
this section), the revocation . . . will be
effective on January 1, 2000. This paragraph
does not apply to subsequent sunset reviews
Court No. 07-00166 Page 20

of transition orders (see [19 U.S.C.
§ 1675(c)(6)(A)(iii)]).

19 C.F.R. § 351.222(i)(2)(i) & (ii).

It is Parkdale’s position that 19 C.F.R. § 351.222(i)(2)(i)

unambiguously requires that revocation of the Order shall be

effective on the fifth anniversary of the original Order, which

Parkdale asserts is January 1, 2000, or at the latest September

26, 2000, and not on the “fifth anniversary of the date of

publication in the Federal Register of the notice of continuation

of the [Order],” i.e., December 15, 2005, as Commerce concluded.

Revocation Notice, 72 Fed. Reg. at 7011 (emphasis added).

Parkdale argues:

Commerce’s interpretation, that the effective
date is five years after publication of
continuation of the antidumping duty order,
is squarely contradicted by the regulation
itself. As if the phrase “the
revocation . . . will be effective on the
fifth anniversary of the date of publication
in the Federal Register of the order” is not
clear enough, the next sentence of the [19
C.F.R. § 351.222(i)(2)(ii)] drives the point
home. The next sentence says that “[t]his
paragraph also applies to subsequent sunset
reviews of transition orders.” This sentence
leaves no mistake but that the drafters of
the regulation meant for the five years to be
counted from the date of the antidumping duty
order itself, even if the revocation was
pursuant to a subsequent review of a
transition order.

Pl.’s Mem. 11 (emphasis in original; internal citation omitted).

Thus, Parkdale contends that the plain language of the regulation

demonstrates that it is likely to succeed on the merits of its
Court No. 07-00166 Page 21

claim.

For its part, defendant argues that “the statutory and

regulatory scheme, as well as Commerce’s consistent past

practice,10 demonstrate that revocation of a transition order—

pursuant to a second or later sunset review—is effective from the

fifth anniversary of the preceding sunset-review notice

continuing the order.” Def.’s Resp. 10 (footnote omitted).

Specifically, defendant contends:

[B]ecause 19 C.F.R. § 351.222(i)(2)(i)
references 19 U.S.C. § 1675(c)(6)(A)(iii),
Commerce’s revocations of transition orders,
pursuant to second or later sunset reviews,
such as that which is the subject of
Parkdale’s claim here, are effective from the
fifth anniversary of the preceding sunset-
review notice continuing the order. . . .
[P]ursuant to 19 U.S.C. § 1675(c)(6)(A)(iii),
the statute substitutes the “‘date of the
determination to continue such orders’ for
‘date such orders are issued’” in the conduct
of subsequent sunset reviews. That is, when
revoking transition orders in which there
have been subsequent reviews, Commerce
revokes not from “the fifth anniversary of
the date of publication in the Federal
Register of the order,” but from the fifth
anniversary of the date of the determination
to continue the order. This is the only
possible interpretation that gives meaning to
the reference to 19 U.S.C.
§ 1675(c)(6)(A)(iii) in the revocation
provision.

Def.’s Resp. 11 (citations omitted).

10
Defendant cites Commerce’s decision in Furfuryl Alcohol
from Thailand, 72 Fed. Reg. 9729 (Dep’t of Commerce Mar. 5, 2007)
(final results of second sunset review and revocation of order),
among others. See Def.’s Resp. 12 n.2.
Court No. 07-00166 Page 22

The court finds that Parkdale’s argument is sufficient to

satisfy this factor of the test for injunctive relief. At issue

is the meaning of subsection 351.222(i)(2)(i). The parties

construe this subsection differently. The court finds that

Parkdale has raised a substantial question regarding the merits

of its claim and has demonstrated “at least a fair chance of

success on the merits . . . .” U.S. Ass’n of Imps. of Textiles &

Apparel, 413 F.3d at 1347 (internal quotation marks omitted).

Moreover, as discussed in Part II, infra, the potential harm to

the movant if the court were to deny injunctive relief is

indisputable. Therefore, based on the Federal Circuit’s “sliding

scale” approach, Parkdale’s “burden . . . to make the required

showing of likelihood of success on the merits” is lessened.

Corus Staal BV, 31 CIT at __, 493 F. Supp. 2d at 1283 n.10. The

court therefore finds the likelihood of success on the merits

factor tips in favor of Parkdale.

II. Irreparable Harm

Federal Circuit case law favors the granting of a

preliminary injunction where it is clear that irreparable harm

would result absent the injunction. See Ugine & Alz Belg., 452

F.3d at 1293 (citing, inter alia, Corus Group PLC v. Bush, 26 CIT

937, 942, 217 F. Supp. 2d 1347, 1353-54 (2002), where the Court

stated, “In reviewing the factors, the court employs a ‘sliding
Court No. 07-00166 Page 23

scale.’ Consequently, the factors do not necessarily carry equal

weight. The crucial factor is irreparable injury.”). There can

be little doubt that Parkdale would suffer irreparable harm if

liquidation of the entries entered on or after September 26,

2000, were not enjoined and were it to prevail on the merits.

CWB, 31 CIT at __, 491 F. Supp. 2d at 1246 (“It has long been

established that liquidation renders without meaning a movant’s

‘statutory right to obtain judicial review’ with respect to the

liquidated entries and, thus, that the ‘consequences of

liquidation do constitute irreparable injury.’”) (quoting Zenith,

710 F.2d at 810). Indeed, the parties do not dispute this point.

Thus, the court finds this factor favors granting a preliminary

injunction in this case.

III. Balance of Hardships

“In evaluating whether to grant a motion for injunctive

relief, the court must ‘determine which party will suffer the

greatest adverse effects as a result of the grant or denial of

the preliminary injunction.’” Nat’l Fisheries Inst., Inc. v.

United States Bureau of Customs & Border Protection, 30 CIT __,

__, 465 F. Supp. 2d 1300, 1329 (2006) (quoting Ugine-Savoie Imphy

v. United States, 24 CIT 1246, 1250, 121 F. Supp. 2d 684, 688

(2000)). Parkdale contends that the hardship it would suffer if

a preliminary injunction were not granted, i.e., the possibility
Court No. 07-00166 Page 24

of its claims being rendered moot by liquidation of its entries,

is comparably much greater than any inconvenience defendant might

suffer by continuing to suspend liquidation pending the court’s

decision on the merits. See Pl.’s Mot. 7. The defendant, which

has plaintiff’s deposits in its possession, does not seriously

contend that this is not the case. The court thus finds this

factor tips in favor of granting Parkdale’s motion.

IV. Public Interest

“[T]he public interest is served by ensuring that [Commerce]

complies with the law, and interprets and applies [the]

international trade statutes uniformly and fairly.” Ugine-Savoie

Imphy, 24 CIT at 1252, 121 F. Supp. 2d at 690 (internal quotation

marks & citations omitted; third alteration in original).

Parkdale’s complaint raises an important question concerning

whether Commerce complied with the law when it concluded that the

effective date of the Revocation Notice was the fifth anniversary

of the publication of notice of the continuation of the Order,

rather than of the original Order. Thus, the public’s interest

in ensuring that duties are assessed in accordance with law

favors granting Parkdale’s motion.
Court No. 07-00166 Page 25

CONCLUSION

For the foregoing reasons, the court finds that it has

jurisdiction to hear Parkdale’s claim under 28 U.S.C.

§ 1581(i)(4). In addition, the court finds that Parkdale has

demonstrated its entitlement to injunctive relief. Therefore, it

is hereby

ORDERED that Parkdale’s motion for a preliminary injunction

is granted; and it is further

ORDERED that the parties consult and jointly submit to the

court the form of the preliminary injunction on or before

November 9, 2007. The parties’ submission shall be made to Casey

Ann Cheevers, Case Manager, United States Court of International

Trade, One Federal Plaza, New York, New York, 10278.

/s/Richard K. Eaton
Richard K. Eaton

Dated: October 31, 2007
New York, New York