dissenting:
Having reconsidered the order entered on July 26, 1988, I would grant plaintiffs’ motion to modify an injunction, pending appeal, against liquidation of merchandise entered during the first review period to *1531include merchandise entered during a second annual review period.
BACKGROUND
The International Trade Administration of the United States Department of Commerce (Commerce) and the United States International Trade Commission (Commission) determined that pipe fittings from Brazil are being sold in the United States at less than fair value and that these sales are materially injuring a United States industry. Antidumping Duty Order: Malleable Cast Iron Pipe Fittings From Brazil, 51 Fed.Reg. 18,640 (May 21, 1986). Plaintiff filed an action in this Court to challenge the Commerce and Commission determinations.
After the antidumping order was published, unliquidated entries and warehouse withdrawals for consumption made on or after the date of publication of the preliminary determination were assessed with estimated antidumping duties. 19 U.S.C. § 1673e(a) (1982). Actual dumping duties are calculated during a section 751 administrative review of the dumping order. Under current law, an interested party must request an administrative review in the anniversary month of the publication of the antidumping duty order. 19 U.S.C. § 1675(a)(1) (1982 & Supp. IY 1986). If no review is requested, a Commerce regulation provides for the unliquidated entries and warehouse withdrawals for consumption to be liquidated at the estimated anti-dumping duty rate. 19 C.F.R. § 353.53a(d)(l) (1988). See also Horlick & DeBusk, Commerce Procedures Under Existing and Proposed Antidump-ing/Countervailing Duty Regulations, 22 Int’l Law. 99, 117-18 (1988). Entries, once liquidated, are no longer subject to the effect of a subsequent judicial decision. See 19 U.S.C. § 1516a(c)(l), (e) (1982).
In the May 11, 1987 Federal Register, Commerce published notice that pursuant to 19 C.F.R. §§ 353.53a and 355.10 (1987), any interested party could request an administrative review of the antidumping order on pipe fittings from Brazil imported into the United States in the period from January 14, 1986 to April 30, 1987. Anti-dumping or Countervailing Duty Order, Finding, or Suspended Investigation; Opportunity to Request Administrative Review, 52 Fed.Reg. 17,621 (May 11, 1987).
No party requested an administrative review of this first review period. Rather, plaintiffs asked this Court to enjoin liquidation of the entries made during the first review period. In their motion for an injunction, plaintiffs did not challenge the validity of 19 C.F.R. § 353.53a(d), which is the regulation providing for the automatic assessment of antidumping duties at the estimated duty rate. On August 3, 1987 the Court denied the motion for a preliminary injunction:
The relevant statutory scheme contemplates that Commerce, in the first instance, be afforded an opportunity to review its determinations in the course of calculating actual dumping margins for a given period. Under the facts of this case, to grant the extraordinary remedy of an injunction would be to improperly reward plaintiffs’ efforts to thwart that scheme. Accordingly, this Court will not exercise its injunctive power to rescue plaintiffs from the consequence of its decision not to initiate the administrative review process.
Fundicao Tupy S.A. v. United States, 11 CIT —, 669 F.Supp. 437, 439 (1987) (Tupy I). In denying the preliminary injunction, Tupy I found that any “immediate and irreparable harm” resulted from plaintiffs’ failure to employ the available administrative remedy. Id,
On August 28, 1987, another judge of this Court granted a preliminary injunction in a case with similar facts. Oki Elec. Indus. Co. v. United States, 11 CIT —, 669 F.Supp. 480 (1987). Oki held that importers did not need to request an administrative review in order to obtain an injunction against liquidation. Oki did not address the decision in Tupy I. Oki was not appealed.
Faced with a split of authority within the Court of International Trade, the Court granted an injunction pending plaintiffs’ appeal of the denial of the injunction in *1532Tupy I. Fundicao Tupy S.A. v. United States, 11 CIT —, 671 F.Supp. 27 (1987) (Tupy II).
The merits of this case were decided on January 12, 1988. Fundicao Tupy S.A. v. United States, 12 CIT —, 678 F.Supp. 898 (1988) (Tupy III), appeal docketed, No. 88-1233 (Fed.Cir. Jan. 12, 1988). Tupy III affirmed the determinations of both Commerce and the Commission. Plaintiffs appealed Tupy III on January 12, 1988 and moved to enjoin liquidation of entries made during the first review period pending that appeal.
On March 14, 1988, the Court of Appeals for the Federal Circuit dismissed on grounds of mootness the appeal from Tupy I and declared that Tupy I should have no precedential value. Fundicao Tupy S.A. v. United States, 841 F.2d 1101, 1104 (Fed. Cir.1988). However, the Federal Circuit maintained the status quo by stating that because an appeal is pending from Tupy III, “it would be inappropriate at this time to remand to the trial court with a direction to vacate its order.” Id.
On March 16, 1988, this Court granted plaintiffs motion for an injunction pending appeal of Tupy III. Fundicao Tupy S.A. v. United States, 12 CIT —, Slip Op. 88-32 (Mar. 16, 1988) (Tupy IV).
The time then arrived to request reviews of merchandise imported during the second review period, May 1, 1987 to April 30, 1988. Notice was again published in the Federal Register that, in accordance with 19 C.F.R. §§ 363.53a and 355.10, administrative reviews would have to be requested not later than May 31, 1988. Antidump-ing or Countervailing Duty Order, Finding, or Suspended Investigation; Opportunity to Request Administrative Review, 53 Fed.Reg. 16,178 (May 5, 1988). The notice advised that if no review was requested, Commerce would instruct the Customs Service to assess antidumping duties on the Brazilian entries
at a rate equal to the cash deposit of (or bond for) estimated antidumping or countervailing duties required on those entries at the time of entry, or withdrawal from warehouse, for consumption and to continue to collect the cash deposit previously ordered.
This notice is not required by statute, but is published as a service to the international trading community.
53 Fed.Reg. at 16,179. Plaintiffs did not request Commerce to initiate an administrative review before the May 31, 1988 deadline. Instead, plaintiffs moved on June 28, 1988 to modify the injunction pending appeal issued in Tupy IV to include the second review period.
On July 21, 1988, yet another judge of the Court of International Trade lined up with Oki and held that it is not necessary for interested parties to request an administrative review in order to preserve their rights to an injunction. Ipsco, Inc. v. United States, 12 CIT —, 692 F.Supp. 1368 (1988).
In an order entered July 26, 1988, this Court denied plaintiffs’ motion to extend Tupy IV to include the second review period. Invoking Rule 52 of the Rules of this Court and the renewed split of authority after Ipsco, plaintiffs move for reconsideration of the July 26, 1988 order.
On September 6, 1988, another case ruling on a motion for an injunction against liquidation of merchandise entered in subsequent review periods found that the Court of International Trade possesses the equitable jurisdiction to fashion narrow stays in order to preserve the status quo pending an appeal. Algoma Steel Corp. v. United States, 12 CIT —, 696 F.Supp. 656 (1988). Exercising its discretion, Algo-ma denied an injunction as to the first review period but enjoined the United States from issuing liquidation instructions to the Customs Service as to the second review period.
DISCUSSION
Plaintiffs did not request an administrative review of merchandise entered during the second review period, but rather moved to modify the existing injunction now covering merchandise entered during the first review period. The majority indicates that plaintiffs have used the wrong procedure *1533and should have instead applied for a preliminary injunction:
Plaintiffs may not sidestep an application for a new injunction with regard to the entries made during a second review period by seeking to modify the previous stay, because there is no outstanding decision which could be stayed with regard to these new entries.
Supra, at 1529. The majority thus expresses a view that this Court cannot extend the existing injunction to cover the second review period.
Although the majority admonishes plaintiffs to apply for a preliminary injunction, the majority also indicates that if plaintiffs had applied for a preliminary injunction, the majority would repeat the holding in Tupy I and deny the motion. While the majority would apparently require plaintiffs to pursue a possibly vain action, a motion for a preliminary injunction for the second review period would bring the Court to squarely reconsider Tupy I in light of arguments, not made before the Court in Tupy I, that Congress never intended to require importers to request substantially meaningless but expensive administrative reviews. For example, it would be meaningless for Commerce to conduct an administrative review of the dumping margins that Commerce found when the importers only complaint is with the material injury determination made by the Commission.
I disagree that the Court cannot modify the injunction against liquidation of merchandise entered during the first review period in the absence of a motion for a preliminary injunction. There is no need for an importer to apply for a preliminary injunction when the merits of the case have already been decided. A preliminary injunction is a procedural device which is interlocutory in nature and which is designed to preserve the existing status of the litigants until a determination can be made on the merits of the controversy. Black’s Law Dictionary 1062 (5th ed.1979). The plaintiffs seek an injunction pending appeal. I see no great substantive difference between a separate injunction pending appeal and modifying an existing injunction pending appeal. When the Federal Circuit dismissed the appeal from Tupy I, it expressed its desire to preserve the status quo pending plaintiffs’ appeal of the merits because the Federal Circuit did not remand to this Court with direction to vacate. Fundicao Tupy S.A. v. United States, 841 F.2d 1101, 1104 (Fed.Cir.1988).
As in Tupy IV, the Court has jurisdiction to enjoin liquidation of merchandise entered in subsequent review periods pending appeal of the merits. See also Algoma Steel Corp. v. United States, 12 CIT —, 696 F.Supp. 656 (1988) (where the Court fashioned a limited injunction pending appeal as to merchandise entered in a second review period even though the importers did not first apply for a preliminary injunction).
In Tupy IV, the Court followed Tupy II and granted an injunction pending appeal after considering the four factors: (1) whether there is a likelihood of success on the merits; (2) whether the applicant will be irreparably injured; (3) whether other parties will be substantially injured; and (4) where the public interest lies. See also Hilton v. Braunskill, — U.S. -, 107 S.Ct. 2113, 2119, 95 L.Ed.2d 724 (1987); Tupy II, 11 CIT at —, 671 F.Supp. at 29-30.
I find that none of the four factors have weakened in the application to modify the injunction pending appeal. In fact, the first factor has strengthened in favor of extending the injunction pending appeal because of the line of decisions holding that interested parties do not need to request administrative reviews to preserve their rights to an injunction against liquidation of merchandise entered in subsequent review periods.
I would grant plaintiffs’ motion to modify the injunction pending appeal to include merchandise entered during the second review period, without requiring plaintiffs to apply for that relief from the Federal Circuit. As the majority recognizes, Rule 8(a) of the Federal Rules of Appellate Procedure provides that a motion to modify an injunction during the pendency of an appeal must ordinarily be made in the first *1534instance in the district court. Rule 8(a) of the Federal Rules of Appellate Procedure works to advance cases through crowded appellate dockets. Other cases may be better suited to bring the issue before the Federal Circuit.