Slip-Op. 00-144
UNITED STATES COURT OF INTERNATIONAL TRADE
____________________________________
:
:
NMB SINGAPORE LTD and :
PELMEC INDUSTRIES (PTE) LTD :
:
Plaintiffs, :
: Court No. 00-07-00373
v. :
:
UNITED STATES OF AMERICA :
:
Defendant, :
:
:
v. :
:
THE TORRINGTON COMPANY :
:
Defendant-Intervenor. :
:
____________________________________:
[Plaintiffs’ motion for preliminary injunction is granted.]
White & Case (Walter J. Spak, Christopher F. Corr, Lyle B. Vander Schaaf, Richard J.
Burke), Washington, D.C. for Plaintiffs.
Mary Elizabeth Jones, Attorney-Advisor, Office of the General Counsel, International
Trade Commission, Washington, D.C., for Defendants.
Stewart & Stewart (Terence P. Stewart, Geert De Prest), Washington, D.C., for
Defendant-Intervenors
Court No. 00-07-00373 Page 2
MEMORANDUM OPINION
CARMAN, Chief Judge:
Plaintiffs move for a preliminary injunction following a finding by the United States
International Trade Commission (ITC) after a five-year sunset review that revocation of
antidumping orders on anti-friction ball bearings from Singapore would likely lead to a
recurrence of material injury to the domestic industry within a reasonably foreseeable time.
Plaintiffs seek to enjoin the United States from liquidating any and all unliquidated entries of ball
bearings from Singapore manufactured or exported by Plaintiffs and entered for consumption or
withdrawn from warehouse after January 1, 2000, until the lawsuit commenced by the Plaintiffs
challenging the ITC’s sunset review determination, receives final judicial review. Defendant,
United States, consents to the issuance of a preliminary injunction. Defendant-Intervenor, The
Torrington Company, objects.
BACKGROUND
On April 1, 1999, the ITC initiated a five year sunset review pursuant to section 751(c) of
the Tariff Act of 1930, as amended by 19 U.S.C. § 1675(c) (1994) (hereinafter, sunset review).
This review covered certain ball bearings from China, France, Germany, Hungary, Italy, Japan,
Romania, Singapore, Sweden, and the United Kingdom. See Certain Bearings from China,
France, Germany, Hungary, Italy, Japan, Romania, Singapore, Sweden, and the United
Kingdom, 64 Fed. Reg. 15783 (April 1, 1999). On July 2, 1999, the ITC determined that it
would conduct a full review pursuant to the sunset law’s provisions. On June 28, 2000, the ITC
published notice of its final determination, finding in part that revocation of the antidumping
duty orders on anti-friction ball bearings from Singapore would likely lead to recurrence of
Court No. 00-07-00373 Page 3
material injury to the domestic industry within a reasonably foreseeable time. See Certain
Bearings from China, France, Germany, Hungary, Italy, Japan, Romania, Singapore, Sweden,
and the United Kingdom, 65 Fed. Reg. 39925, 39925 (June 28, 2000).
On July 7, 2000, pursuant to a request by the Plaintiffs, the Department of Commerce
(Commerce) initiated the eleventh administrative review of the antidumping order at issue in this
case. This review covered subject merchandise entered into the United States between May 1,
1999 and April 30, 2000. The Plaintiffs subsequently withdrew their request and, because no
other party filed a separate request, the administrative review was terminated. Thus, by
operation of law, any entries made between May 1, 1999 and April 30, 2000, would in the usual
course have been liquidated in accordance with the 1.26% antidumping duty rate established by
the tenth administrative review. 1
On August 25, 2000, Plaintiffs filed a summons and complaint with this Court
challenging the ITC’s sunset review final determination. Plaintiffs timely filed this motion for
preliminary injunction seeking to enjoin liquidation of all unliquidated entries of subject
merchandise manufactured or exported by Plaintiffs and entered or withdrawn from warehouse
after January 1, 2000. 2
1
See 19 C.F.R. §351.212(a) (“Generally, the amount of duties to be assessed is determined in a review of the
[antidumping] order covering a discrete period of time. If a review is not requested, duties are assessed at the rate
established in the completed review covering the most recent prior period or, if no review has been completed, the
cash deposit rate applicable at the time merchandise was entered.”)
2
Commerce has issued a regulation establishing January 1, 2000 as the effective date of a revocation or termination
of a transition order prior to, or as a result of, the initial sunset review. See 19 C.F.R. §351.222(i)(2)(ii). Transition
orders are defined by 19 U.S.C. §1675(c)(6)(C)-(D), in relevant part, as “an antidumping duty order under this
subtitle or a finding under the Antidumping Act of 1921… which is in effect on the date the WTO Agreement enters
into force with respect to the United States, if such order is based on an investigation conducted by both the
administering authority and the Commission.” The antidumping duty order at issue in this case was originally
issued in 1989 and, therefore, was in effect on the date the WTO Agreement entered into force. Although the
antidumping order has been in place for eleven years 19 U.S.C. §1675(c) has only been in effect since 1995 and,
thus, only one sunset review has been performed. As such, the subject matter of this litigation is within the purview
of 19 C.F.R. §351.222(i)(2)(ii).
Court No. 00-07-00373 Page 4
Prior to the Uruguay Round, the antidumping laws did not effectively restrict the duration
of an antidumping order. Antidumping duties were imposed for as long as dumping or injury
continued, subject only to the possibility of yearly administrative reviews establishing the
applicable antidumping duty rate. The law, however, did provide that Commerce could revoke
an antidumping order if there were no request for an administrative review of that order for four
consecutive years. See 19 C.F.R. § 353.25 (1994). This provision, however, was infrequently
used. 3
With the passage of the Uruguay Round Agreements Act, Pub. L. No. 103-465, 108 Stat.
4809 (Dec. 8, 1994), Commerce’s regulations and the Trade Agreements Act of 1979 were
amended to provide several methods by which an antidumping order could be terminated or
revoked. An antidumping order may be revoked where Commerce determines that “[a]ll
exporters and producers covered at the time of revocation by the order… have sold the subject
merchandise at not less than normal value for a period of at least three consecutive years” and
“[I]t is not likely that those persons will in the future sell the subject merchandise at less than
normal value.” 19 C.F.R. §351.222(b)(1)(i)-(ii) (1998). An antidumping order may also be
revoked where either the circumstances surrounding the order have changed sufficiently to
warrant revocation or where the producers accounting for substantially all of the production of
the relevant domestic like product express a lack of interest in the continuation of the order. See
19 U.S.C. §1675(b); 19 C.F.R. §351.222(g) (1998).
Most relevant to this case, however, an antidumping order may be revoked or terminated
by Commerce or the ITC through the sunset review process. See 19 U.S.C. §1675(c). This
3
The Court notes two distinguished legal scholars have found that between January 1, 1980 and July 31, 1994 a
total of 533 antidumping and countervailing duty orders were placed in effect. During the same period, however,
only 162 orders (30.39%) were revoked. During this period, the average length of time a revoked duty order
remained in effect was 8.28 years. See Raj Bhala & Anthony Kennedy, W ORLD TRADE LAW at 628.
Court No. 00-07-00373 Page 5
process requires Commerce and the ITC to invite interested parties to provide information
pertaining to the impact that revocation of the antidumping order would have on the relevant
domestic industry. See 19 U.S.C. §1675(c)(2). If this information is provided, it is then used to
aid Commerce in determining whether the revocation of the antidumping order would likely lead
to “a continuation or recurrence of sales of the subject merchandise at less than fair value.” 19
U.S.C. §1675a(c)(1). The ITC similarly uses this information when determining whether
revocation of the same order would likely lead to “continuation or recurrence of material injury
within a reasonably foreseeable time” 19 U.S.C. §1675a(a)(1). If Commerce and the ITC make
affirmative determinations, the antidumping orders are to remain in effect for an additional five
years, subject to yearly administrative reviews. Under the sunset review procedures, this process
is to repeat until either Commerce determines that there is no threat of continued or recurring
dumping or the ITC determines that there will likely not be a continuation or recurrence of
material injury to the domestic industry within a reasonably foreseeable time. See 19 U.S.C.
§1675(c)(1)(C). Where, however, no interested parties submit information regarding the effect
of revocation on the domestic industry, the antidumping duty order is automatically terminated.
See 19 U.S.C. §1675(c)(3)(A).
DISCUSSION
This Court has jurisdiction over the Plaintiffs’ underlying litigation pursuant to 19 U.S.C.
§1581(c) and sections 516A(a)(2)(A)(i)(I) and (B)(iii) of the Tariff Act of 1930, as amended by
19 U.S.C. §§1516a(a)(2)(A)(i)(I) and (B)(iii) (1999). The Plaintiffs’ motion for preliminary
injunction is properly before this Court pursuant to 19 U.S.C. §1516a(c)(2) (1999).
Court No. 00-07-00373 Page 6
There seems to be no dispute as to the events precipitating this motion. As stated, on
April 1, 1999, the ITC, pursuant to 19 U.S.C. §1675(c), initiated a sunset review of an
antidumping order originally issued in 1989 on certain anti-friction ball bearings from Singapore.
Since the antidumping order’s inception, there have been ten administrative reviews, with the
tenth one resulting in an antidumping duty margin of 1.26%. On July 7, 2000, the Plaintiffs
petitioned Commerce and the ITC for an eleventh administrative review but subsequently
withdrew this request. Because no other party had asked for an administrative review of this
antidumping order, all entries relevant to that administrative review would ordinarily be
liquidated at the 1.26% duty rate. Normally, had the administrative review proceeded, the
government would have been enjoined from liquidating the relevant entries pending full and
final judicial review. 4
On August 25, 2000, the Plaintiffs filed a summons and complaint challenging the ITC’s
sunset review final determination in this case. Plaintiffs now seek preliminary injunctive relief
to prevent liquidation of all unliquidated entries from January 1, 2000 until judicial review of the
ITC’s sunset determination is final. The United States consents to the granting of the
preliminary injunction.
Defendant-Intervenor objects, arguing Plaintiffs put themselves in this position when
they withdrew their request for an administrative review, thereby terminating the administrative
review. Because the administrative review was terminated on account of Plaintiffs’ actions,
Defendant-Intervenor maintains that Plaintiffs effectively lost their per se right to a preliminary
4
In Zenith Radio Corp. v. United States, 710 F.2d 806 (Fed. Cir. 1983), the United States Court of Appeals for the
Federal Circuit granted plaintiffs a per se right to a preliminary injunction enjoining liquidation of unliquidated
entries pending final judicial review of administrative review determinations. Defendant-Intervenor acknowledges
the per se right to a preliminary injunction that attaches in cases challenging an administrative review. See
Defendant Intervenors’ Brief, at 2 (“In the case of an annual review, the plaintiff cannot obtain effective relief
absent an injunction against liquidation, because without the injunction all entries subject to the litigated annual
review would likely be liquidated before litigation could conclude.”)
Court No. 00-07-00373 Page 7
injunction enjoining liquidation of unliquidated entries pending final judicial review. It is
noteworthy that Defendant-Intervenor ignores the differences in the two types of proceedings.
Administrative reviews are structured to determine the rate at which entries are to be liquidated
or to impose no duties if the facts so warrant. Sunset reviews are designed to determine whether
an antidumping or countervailing duty order should be terminated or should remain in effect for
an additional five-year period. The mere fact that Plaintiffs have elected not to seek an
administrative review should not effectively preclude Plaintiffs from obtaining injunctive relief
in a different type of proceeding. It would seem bizarre if parties could secure final judicial
review in the former while they could not in the latter.
The issue presented in this case is whether, in light of an appeal of an affirmative ITC
sunset review determination, the government should be enjoined from liquidating entries entered
between the date the antidumping order would have terminated and the completion of final
judicial review. Put another way, should the Plaintiffs be entitled to a preliminary injunction
enjoining liquidation of all unliquidated entries pending final judicial review where there has
been a challenged affirmative ITC sunset review determination.
It is well settled that a preliminary injunction is an extraordinary remedy. Therefore,
before the Plaintiffs can be granted such relief they must establish: (1) in the absence of a
preliminary injunction, they will suffer irreparable harm; (2) the balance of hardships tilts in the
movant’s favor; (3) there is a likelihood of success on the merits; and (4) the grant of a
preliminary injunction is not contrary to public interest. See FMC Corp. v. United States, 3 F.3d
424, 427 (Fed. Cir. 1993). For the reasons stated below, this Court finds that the Plaintiffs have
satisfied the four criteria and are, therefore, entitled to preliminary injunctive relief.
Court No. 00-07-00373 Page 8
A. Irreparable Harm
Plaintiffs argue they will suffer irreparable harm if the entries of subject merchandise
entered into the United States after January 1, 2000 are liquidated prior to the completion of final
judicial review of this case. Specifically, the Plaintiffs argue that if they succeed in their legal
challenge to the ITC’s sunset review determination they will suffer the unrecoverable loss of all
antidumping duties paid on the liquidated entries, as well as the negation of their statutory right
to effective and meaningful judicial review. The Court finds Plaintiffs’ contentions persuasive.
The United States Court of Appeals for the Federal Circuit (Federal Circuit) noted, in
Zenith Radio Corp. v. United States, that the antidumping laws do not contain a provision
permitting the reliquidation of entries or the recovery of wrongfully assessed antidumping duties
in the event a foreign manufacturer or exporter successfully challenges an affirmative
antidumping determination. 710 F.2d 806, 810 (Fed. Cir. 1983). Rather, Section 516A(c)(1) of
the Trade Agreements Act of 1979 provides, in relevant part:
Unless such liquidation is enjoined by the court under paragraph (2) of this subsection,
entries of merchandise of the character covered by a determination of the Secretary, the
administering authority, or the Commission contested under subsection (a)… shall be
liquidated in accordance with the determination of the Secretary, the administering
authority, or the Commission.
19 U.S.C. §1516a(c)(1). Thus, “once liquidation occurs, a subsequent decision by the trial court
on the merits of [a foreign manufacturer or exporter’s] challenge can have no effect on the
dumping duties assessed.” Zenith, 710 F.2d at 810.
The Federal Circuit and this Court have long recognized the severe harm caused by
liquidation in cases similar to this case. Because a foreign manufacturer or exporter cannot
recover liquidated duties when it successfully challenges the underlying administrative
Court No. 00-07-00373 Page 9
determination, in the absence of a preliminary injunction, judicial review would provide the
plaintiff with no tangible benefit. See Zenith, 710 F.2d at 810. Accordingly, it is now well
established that when a foreign manufacturer or exporter seeks a preliminary injunction while
challenging the results of an administrative review, “the consequences of liquidation…constitute
irreparable injury.” Id.
Similarly, this Court has held that foreign manufacturers or exporters challenging an
administrative review suffer irreparable harm not only because of the economic loss occasioned
by the liquidation of disputed entries, but also by the deprivation of their statutory right to obtain
meaningful judicial review. See CHR Bjelland Seafoods A/S v. United States, 19 CIT 35, 51
(1995); PG Industries,11 CIT at 7 (1987); Oki Electric Industry Co., Ltd. v. United States, 669 F.
Supp. 480, 485 (CIT 1987); Timken Co. v. United States, 569 F. Supp, 65, 69 (CIT 1983).
Although the cases cited above involved administrative reviews, the underlying rationale
is equally applicable to the present case. The Plaintiffs challenge the ITC’s sunset review
determination affirming the continuation of an antidumping order. Had the ITC terminated the
antidumping order, all entries of subject merchandise after January 1, 2000 would have been
liquidated free of any antidumping duties. However, because the antidumping order remains in
effect, and because the liquidation of entries is not suspended during the pendancy of the
Plaintiffs’ legal challenge, the Plaintiffs are faced with potential irreparable harm similar to that
faced by parties challenging an administrative review determination in the absence of injunctive
relief. As stated, if the United States liquidates the subject entries prior to the completion of final
judicial review and the antidumping order is subsequently revoked, the Plaintiffs would be
without recourse to recover the wrongfully paid antidumping duties. For judicial review to be
meaningful, it must be capable of providing a party with effective relief and the ability to enforce
Court No. 00-07-00373 Page 10
its rights. Absent a preliminary injunction suspending liquidation, judicial review could not
provide the Plaintiffs with meaningful relief. Any judicial remedy would be fruitless.
This Court finds that the Plaintiffs would suffer irreparable harm if any entries were
liquidated pursuant to the antidumping order prior to the completion of final judicial review
because the Plaintiffs would be unable to recover any duties paid under this order and would be
unable to avail themselves of effective and meaningful final judicial review.
B. Balance of Hardships
An inquiry into the balance of hardships requires this Court to determine which party will
suffer the greatest adverse effects as a result of the grant or denial of the preliminary injunction.
The balance of hardships tilts in favor of the Plaintiffs. As stated, if the preliminary injunction
were to be denied, the Plaintiffs would suffer the potential unrecoverable loss of all antidumping
duties paid on the liquidated entries and the negation of their statutory right to meaningful
judicial review. In contrast, United States has consented to the grant of the preliminary
injunction and, presumably, has no complaint if the Plaintiffs’ motion is granted. Although the
Defendant-Intervenor opposes the Plaintiffs motion, it expresses no basis as to how such relief
would unduly burden or impose hardship on the Defendant-Intervenor.
This Court finds that the balance of hardships clearly favors the Plaintiffs.
C. Likelihood of Success on the Merits
The moving party is required to demonstrate a likelihood of success on the merits of its
case before a preliminary injunction will be issued. Although this requirement is important, it is
not determinative and must be balanced against the comparative injuries of the parties. See
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Timken Co., 569 F. Supp. at 70. This balancing involves an inverse relationship between the
level of hardship the moving party will suffer if the preliminary injunction is denied and the
standard that must be met to demonstrate a likelihood of success on the merits. The greater the
harm to the moving party, the lower the standard will be. See id. Where it is clear that the
moving party will suffer substantially greater harm by the denial of the preliminary injunction
than the non-moving party would by its grant, it will ordinarily be sufficient that the movant has
raised “serious, substantial, difficult and doubtful” questions that are the proper subject of
litigation. PG Industries, 11 CIT at 8; See Floral Trade Council, 17 CIT 1022, 1023 (1993).
The Plaintiffs challenge the ITC’s final determination on the grounds that it was
unsupported by substantial evidence and otherwise not in accordance with law. Specifically, the
Plaintiffs allege that the ITC erred in both its legal and factual analysis of the likely volume and
price effects of anti-friction ball bearing imports from Singapore on the United States domestic
market. The Plaintiffs additionally allege that the ITC improperly interpreted the cumulation
provision in the sunset review statute and that its final cumulation decision was unsupported by
substantial evidence. Finally, the Plaintiffs challenge the ITC’s interpretation of the sunset
review statute’s standard for determining the likelihood of injury.
On the papers before this Court, the likelihood of the Plaintiffs success on the merits is
unclear. It is clear, however, that the issues raised by the Plaintiffs are “serious, substantial,
difficult and doubtful” and thereby establish them as a legitimate ground for litigation.
This Court finds that the Plaintiffs have raised sufficiently serious legal questions to
warrant granting their motion for preliminary injunction.
Court No. 00-07-00373 Page 12
D. Public Interest
The final factor that this Court must consider is whether the granting of a preliminary
injunction is consistent with public interest. It is well settled that the public interest is served by
“ensuring that the ITA complies with the law, and interprets and applies [the] international trade
statutes uniformly and fairly.” See PG Industries, 11 CIT at 9, quoting, Ceramica Regiomontana
v. United States, 590 F. Supp. 1260, 1265 (CIT 1984). Similarly, in the present case, the public
interest would be served by preserving the Plaintiffs’ right to meaningful judicial review.
In Neenah Foundry Co. v. United States, 86 F. Supp.2d 1308 (CIT 2000), the Court
denied an application for a preliminary injunction by plaintiff domestic industry to require
deposits on future imports, finding no irreparable harm where the ITC had terminated a
countervailing duty order as part of a challenged negative sunset review. 5 In Neenah there was
no issue as to whether the parties could obtain meaningful judicial review, whereas in the case
before this Court, absent preliminary injunctive relief, it is clear the plaintiff-importer will suffer
irreparable injury.
This Court finds that the public interest is best served by granting the preliminary
injunction.
5
It is interesting to note that the Court entered an unpublished order granting, on consent, a preliminary injunction
enjoining liquidation of deposits pending the outcome of a challenged affirmative ITC sunset review determination.
See Chefline Corp. v. United States, Ct. No. 00-05-00212 (CIT, July 14, 2000).
Court No. 00-07-00373 Page 13
CONCLUSION
For the above stated reasons, this Court is persuaded that the Plaintiffs have satisfied the
judicially established prerequisites for obtaining a preliminary injunction. Accordingly,
Plaintiffs’ motion is GRANTED.
________________________________
Gregory W. Carman,
Chief Judge
Dated: November _____, 2000
New York, NY