Tembec, Inc. v. United States

Slip Op. 06-152

UNITED STATES COURT OF INTERNATIONAL TRADE

____________________________________
:
TEMBEC, INC., :
:
Plaintiff, :
:
and :
:
GOVERNMENT OF CANADA, :
GOUVERNEMENT DU QUEBEC, :
GOVERNMENT OF ONTARIO, :
GOVERNMENT OF ALBERTA, :
GOVERNMENT OF BRITISH :
COLUMBIA, CANADIAN LUMBER :
TRADE ALLIANCE, and ABITIBI- : Before: Jane A. Restani, Chief Judge,
CONSOLIDATED, INC., : Judith M. Barzilay & Richard K. Eaton,
: Judges
Plaintiff-Intervenors, :
: Consol. Court No. 05-00028
v. :
:
UNITED STATES, :
:
Defendant, :
:
and :
:
COALITION FOR FAIR LUMBER :
IMPORTS EXECUTIVE COMMITTEE, :
:
Defendant-Intervenor. :
____________________________________ :

OPINION

Decided: October 13, 2006

[Cash deposits on entries of softwood lumber from Canada, the liquidation of which is
suspended, refunded to Plaintiffs.]

Baker & Hostetler, LLP (Elliot Jay Feldman, Bryan Jay Brown, John Burke, Robert Lewis
LaFrankie) for Plaintiff Tembec, Inc.
Consol. Court No. 05-00028 Page 2

Arnold & Porter, LLP (Michael Tod Shor) for Plaintiff-Intervenor Abitibi-Consolidated, Inc.

Steptoe & Johnson, LLP (Mark Astley Moran, Alice Alexandra Kipel, Sheldon E. Hochberg,
Michael Thomas Gershberg) for Plaintiff-Intervenor Canadian Lumber Trade Alliance Executive
Committee.

Arent Fox Kintner Plotkin & Kahn, PLLC (Matthew J. Clark, Keith Richard Marino) for
Plaintiff-Intervenor Gouvernement du Quebec.

Hogan & Hartson, LLP (Mark S. McConnell, Craig Anderson Lewis, Harold Deen Kaplan,
Jonathan Thomas Stoel) for Plaintiff-Intervenor Government of Ontario.

Akin, Gump, Strauss, Hauer & Feld, LLP (Spencer Stewart Griffith, Bernd G. Janzen, Anne K.
Cusick, Jason Alexander Park) for Plaintiff-Intervenor Government of British Columbia.

Weil, Gotshal & Manges, LLP (M. Jean Anderson, Amy Tross Dixon, Gregory Husisian, Jahna
Hartwig, John Michael Ryan, J. Sloane Strickler); Wilmer, Cutler, Pickering, Hale & Dorr, LLP
(Randolph Daniel Moss) for Plaintiff-Intervenor Government of Canada.

Arnold & Porter, LLP (Claire Elizabeth Reade) for Plaintiff-Intervenor Government of Alberta.

Peter D. Keisler, Assistant Attorney General; David M. Cohen, Director; (Jeanne E. Davidson),
Deputy Director; (Stephen Carl Tosini), Commercial Litigation Branch, Civil Division, United
States Department of Justice; Dean Pinkert, Senior Attorney, Office of the Chief Counsel for
Import Administration, United States Department of Commerce; Theodore R. Posner, Associate
General Counsel, Office of the United States Trade Representative for Defendant United States.

Dewey Ballantine, LLP (Kevin M. Dempsey, Alan W illiam Wolff, Harry Lewis Clark, David
Adrian Bentley) for Defendant-Intervenor Coalition for Fair Lumber Imports Executive
Committee.

Per Curiam: On July 21, 2006, the court issued its opinion in Tembec, Inc. v. United

States, 30 CIT __, 441 F. Supp. 2d 1302 (2006) (“Tembec I”), in which it found invalid the

action of the United States Trade Representative (“USTR”) ordering the implementation1 of a

United States International Trade Commission (“ITC”) affirmative threat of material injury

1
The parties and the court use the term “implement” to indicate action taken by the
United States Department of Commerce to “give domestic legal effect” to a determination by
Commerce or the United States International Trade Commission. See Tembec I, 30 CIT at __,
441 F. Supp. 2d at 1310, n.10.
Consol. Court No. 05-00028 Page 3

determination arising from imports of Canadian softwood lumber into the United States. In that

opinion, the court reserved decision on the remedy to be imposed, i.e., the extent to which cash

deposits made on the importation of the Canadian merchandise must be refunded. This opinion

addresses the remedy issue.

Plaintiff Tembec, Inc. (“Tembec”), Plaintiff-Intervenors Canadian Lumber Trade

Alliance (“CLTA”), and the Governments of Canada2 (collectively “Plaintiffs”); Defendant

United States, and Defendant-Intervenor Coalition for Fair Lumber Imports Executive

Committee (“CFLI”) (collectively “Defendants”); and the court all agree that the deposits made

on merchandise that entered the United States after the publication of the Timken notice3 must

be refunded. In its analysis, the court now concludes that because liquidation is suspended for

most of the entries made on or prior to the Timken notice, they are preserved for liquidation in

accordance with the final decision of the North American Free Trade Agreement (“NAFTA”)

panel. 4 The court, therefore, finds that the refund of the deposits on such entries is required as

well. As we explained in Tembec I, the court has jurisdiction to grant this relief.

I. Background

The history of this case is set out in the court’s opinion in Tembec I. What follows is as

much of that history as is necessary here. On May 16, 2002, the ITC reached its amended final

2
In this opinion, “Governments of Canada” refers to the Government of Canada and the
Governments of Alberta, British Columbia, Ontario, and Quebec.

3
In Timken Co. v. United States, 893 F.2d 337, 340 (Fed. Cir. 1990), the United States
Court of Appeals for the Federal Circuit held that Commerce must publish notice of a decision
of this Court that is “not in harmony” with the Commerce’s previously issued final results. See
19 U.S.C. § 1516a(c)(1) (2000). This is also true for a NAFTA panel decision “not in harmony”
with the results of an ITC threat of injury determination. See generally 19 U.S.C. § 1516a(g).

4
Parties to NAFTA may opt to replace judicial review of certain final determinations
with review by a NAFTA arbitral panel. See Feldspar Corp. v. United States, 16 CIT 1067,
1068, 809 F. Supp. 971, 973 (1992).
Consol. Court No. 05-00028 Page 4

determination that the United States softwood lumber industry was threatened with material

injury by reason of imports from Canada. See Softwood Lumber from Canada, Inv. Nos. 701-

TA-414, 731-TA-928 (Final) USITC Pub. 3509 (May 2002). The United States Department of

Commerce (“Commerce”) implemented the ITC’s determination by issuing the antidumping

(“AD”) and countervailing duty (“CVD”) orders incorporating it. Those orders were effective

upon publication in the Federal Register on May 22, 2002. See Certain Softwood Lumber

Products from Canada, 67 Fed. Reg. 36,068 (Dep’t Commerce May 22, 2002) (notice of

amended final determination of sales at less than fair value and notice of antidumping order);

Certain Softwood Lumber Products from Canada, 67 Fed. Reg. 36,070 (Dep’t Commerce May

22, 2002) (notice of amended final affirmative countervailing duty determination and notice of

countervailing duty order) (collectively “May 22, 2002 orders”). That publication served as

notice to the Bureau of Customs and Border Protection (“Customs”) that it was henceforth to

collect cash deposits for the subject merchandise equal to the amended weighted average AD

margin 5 and net subsidy rate.6 See Certain Softwood Lumber Products from Canada, 67 Fed.

Reg. at 36,068; Certain Softwood Lumber Products from Canada, 67 Fed. Reg. at 36,070. The

5
19 U.S.C. § 1677(35)(A) defines “dumping margin” as “the amount by which the normal
value exceeds the export price or constructed export price of the subject merchandise.”
Subsection (35)(B) defines “weighted average dumping margin” as the “percentage determined
by dividing the aggregate dumping margins determined for a specific exporter or producer by
the aggregate export prices and constructed export prices of such exporter or producer.”
19 U.S.C. § 1677(35)(B).

6
A countervailable subsidy is present when a government or related authority provides a
financial contribution to an entity and a benefit is thereby conferred. The statute defines
“financial contribution” as: (i) the direct transfer of funds; (ii) foregoing or not collecting
revenue that is otherwise due, such as granting tax credits or deductions from taxable income;
(iii) providing goods or services, other than general infrastructure; or (iv) purchasing goods.
See 19 U.S.C. § 1677(5)(D).
Consol. Court No. 05-00028 Page 5

deposits largely remain in the United States treasury.7

The ITC’s affirmative determination was appealed to a NAFTA panel pursuant to Article

1904 of the NAFTA. On September 10, 2004, at the direction of the panel, the ITC issued a

negative threat of injury determination. See Softwood Lumber from Canada, Inv. Nos. 701-TA-

414, 731-TA-928 (Final) (Third Remand), USITC Pub. 3815, Views on Remand (Sept. 10,

2004) at 13–14. On October 12, 2004, the NAFTA panel affirmed the ITC’s negative threat of

injury determination, and the NAFTA Secretariat issued a Notice of Final Panel Action. See

Certain Softwood Lumber Products from Canada, USA-CDA-2002-1904-07, Panel Decision

(Oct. 12, 2004) (“final panel decision”). Commerce thereafter published the Timken notice,

reflecting that the final panel decision was “not in harmony” with the ITC’s original injury

determination of May 2002 and suspending liquidation of the entries of the subject merchandise.

See Certain Softwood Lumber Products from Canada, 69 Fed. Reg. 69,584, 69,585 (Dep’t

Commerce Nov. 30, 2004). The effective date of the Timken notice was November 4, 2004. 8

7
The United States has collected over $4 billion in estimated duties under the AD/CVD
orders. As of October 1, 2005, Customs held $1,291,632,917.84 in AD cash deposits under case
number A-122-838 and $2,898,194,521.75 in CVD cash deposits under case number C-122-839.
See FY 2005 Annual Disbursement Report: Section III (Nov. 29, 2005), available at
http://www.customs.gov/xp/cgov/import/add_cvd/cont_dump/cdsoa_05/fy_2005_annual_report/
(last visited Sept. 25, 2006).

8
Pursuant to § 1516a(g)(5)(B), notice of the final decision was to be published within ten
days of the issuance of the NAFTA panel decision, or by November 4, 2004. In fact, publication
was not made until November 30, 2004. See 69 Fed. Reg. at 65,585. The notice set forth that
“the Department must publish notice of decision . . . which is ‘not in harmony’ with the
Department’s results. . . . Publication of this notice fulfills [this] obligation. . . . [T]his notice
will serve to suspend liquidation of entries [made] on or after November 4, 2004, i.e., 10 days
from the issuance of the Notice of Final Action.” Id. Thus, the court and the parties treat
November 4, 2004 as the effective date, as it was the last lawful day that notice of an adverse
decision could be published.
Consol. Court No. 05-00028 Page 6

Periodic reviews9 of the May 22, 2002 AD/CVD orders have been requested. The results

of these reviews have been appealed to NAFTA panels or this Court.

II. Analysis

At issue is the disposition of the cash deposits made on or before the publication of the

Timken notice. Specifically, the court must determine if 19 U.S.C. § 1516a(g)(5)(B) controls

liquidation of the pre-Timken notice entries. Should that be the case, entries made on and before

November 4, 2004 would be liquidated in accordance with the May 22, 2002 orders

incorporating the May 16, 2002 ITC affirmative determination, rather than the subsequent

negative determination upheld by the NAFTA panel. In other words, the court must determine

whether the unfair trade laws: (1) require that entries made on or before November 4, 2004, the

liquidation of which has been suspended, are to be liquidated in accordance with the May 22,

2002 affirmative unfair trade orders, even though those orders have been invalidated; or (2) call

for the liquidation of all unliquidated entries in accordance with the ITC’s Negative Remand

Determination. See Certain Softwood Lumber Products from Canada, USA-CDA-2002-1904-

07, Panel Decision (Oct. 12, 2004).

Review of AD/CVD determinations involving merchandise from free trade area

countries,10 such as softwood lumber imported into the United States from Canada under

9
See 19 U.S.C. § 1675.
10
Section 1516a(f)(10) defines “free trade area country” as:

(A) Canada for such time as the NAFTA is in force with respect
to, and the United States applies the NAFTA to, Canada. (B)
Mexico for such time as the NAFTA is in force . . . . (C) Canada
for such time as - (i) it is not a free trade area country under
subparagraph (A); and (ii) the Agreement [United States-Canada
Free-Trade Agreement] is in force with respect to, and the United
States applies the Agreement to, Canada.
Consol. Court No. 05-00028 Page 7

NAFTA, is governed by 19 U.S.C. § 1516a(g). According to Defendants, where a NAFTA

panel review of an ITC final determination is requested, § 1516a(g)(5)(B) controls the

liquidation of merchandise subject to the panel’s review:

In the case of a determination for which binational panel review
is requested pursuant to article 1904 of the NAFTA or of the
Agreement,[11] entries of merchandise covered by such
determination shall be liquidated in accordance with the
determination of the administering authority [Commerce] or the
Commission [ITC], if they are entered, or withdrawn from
warehouse, for consumption on or before the date of publication
in the Federal Register by the administering authority of notice
[the Timken notice] of a final decision of a binational panel, or
of an extraordinary challenge committee, not in harmony with
that determination.

19 U.S.C. § 1516a(g)(5)(B). Defendants maintain that despite the ITC’s ultimate

determination that there was no injury or threat of injury, Plaintiffs are not entitled to refunds

of AD/CVD deposits made on merchandise entered on or before November 4, 2004. See

Def.’s Mem. 35; Def.-Int.’s Reply 46. Defendants base this argument primarily on what they

insist is the plain meaning of § 1516a(g)(5)(B): that the pre-Timken notice entries must be

liquidated “in accordance with the [original] determination of the . . . Commission.” See

Def.’s Reply 42 (characterizing the rule in § 1516a(g)(5)(B) as “the unambiguous text of the

controlling statute”); see also Def.-Int.’s Reply 46.

We agree with Defendants that, were § 1516(a)(g)(5)(B) to control, entries made on or

before the date of publication of the Timken notice would be liquidated in accordance with the

order incorporating the ITC’s initial affirmative determination, even though the ITC reversed

that determination in response to the NAFTA panel decision. We further agree that any entries

11
The “Agreement” refers to the United States-Canada Free-Trade Agreement. See
19 U.S.C. § 1516a(f).
Consol. Court No. 05-00028 Page 8

made after the date of publication of the Timken notice would be liquidated in accordance

with Commerce’s order reflecting the final decision of the NAFTA panel. Accordingly, were

the court to find that § 1516(a)(g)(5)(B) governs here, entries of softwood lumber made on or

before November 4, 2004 would be liquidated in accordance with the May 22, 2002 orders,

which incorporate the ITC’s May 16, 2002 affirmative threat of injury determination. Those

entries made after November 4, 2004, however, would be liquidated in accordance with the

final NAFTA panel decision affirming the ITC’s September 10, 2004 negative determination.

The issue, then, is whether § 1516a(g)(5)(B) is the controlling statute under the facts of

this case. Plaintiffs claim that it is not. According to Plaintiffs, § 1516a(g)(5)(B) must be read

together with § 1516a(g)(5)(C), and that such reading requires the refund of deposits for

entries made before, on, and after November 4, 2004. Pl.-GOC’s Mem. 39 (“The United

States must refund all cash deposits on softwood lumber . . . pursuant to the AD/CVD

orders.”). They contend that all entries of the subject merchandise, the liquidation of which

remains suspended by virtue of § 1516a(g)(5)(C), must be liquidated in accordance with the

October 12, 2004 final NAFTA panel decision reversing the ITC affirmative determination.

Plaintiffs insist that, having prevailed on the merits in the NAFTA review, they must receive

the full benefit of their victory. They further assert that such result is consistent with the

statutory scheme as a whole and the legislative history of the relevant provisions. The court

agrees with Plaintiffs and finds that the provisions of § 1516a(g)(5)(B) do not apply to entries,

the liquidation of which continues to be suspended under §1516a(g)(5)(C).

Subsection 1516a(g)(5)(C), entitled “Suspension of Liquidation,” provides:

(i) In general
Consol. Court No. 05-00028 Page 9

Notwithstanding the provisions of subparagraph (B), in the case of a
determination described in clause (iii) [§ 1675 administrative review] or
(vi) [scope determination] of subsection (a)(2)(B) of this section for
which binational panel review is requested pursuant to article 1904 of
the NAFTA or of the Agreement, the administering authority
[Commerce], upon request of an interested party who was a party to the
proceeding in connection with which the matter arises and who is a
participant in this binational panel review, shall order the continued
suspension of liquidation of those entries of merchandise covered by the
determination that are involved in the review pending the final
disposition of the review.

19 U.S.C. § 1516a(g)(5)(C) (emphasis added). Central to the court’s conclusion is its finding

that the “continued” suspension of liquidation provided for in § 1516a(g)(5)(C) acts as the

equivalent of an injunction against liquidation and thus halts liquidation until the suspension

expires. In reaching its result, the court recognizes that liquidation of most pre-November 4,

2004 entries has been suspended through the following steps.12 Pursuant to 19 U.S.C.

§§ 1671b(d)(2) and 1673b(d)(2), when Commerce issues an affirmative preliminary

determination, it must order the suspension of liquidation of all entries made on or after the

determination’s date of publication. When the final determination is also affirmative, the

suspension remains in place. See Int’l Trading Co. v. United States, 281 F.3d 1268, 1272

(Fed. Cir. 2002) (citing 19 U.S.C. § 1673b(d) (1988)); see also Fijutsu Gen. Am., Inc. v.

12
There were three adjustments to the ongoing suspension of liquidation. In its final
determination, the ITC found threat of injury rather than material injury. Consequently,
pursuant to 19 U.S.C. §§ 1671e(b)(2) and 1673e(b)(2), the suspension of liquidation was
removed for entries from the date of publication of the preliminary Commerce determinations to
the date of publication of the final ITC determination, and no duties should have been assessed
on those entries. Prior to the issuance of the final determination, the suspensions of liquidation
in both the AD and the CVD investigations were discontinued pursuant to the last paragraphs of
§§ 1671b(d)(2) and 1673b(d)(2) because the permitted period for a preliminary suspension of
liquidation had expired. Suspension resumed upon completion of the proceedings in May 2002.
Consol. Court No. 05-00028 Page 10

United States, 283 F.3d 1364, 1380 (Fed. Cir. 2002).13 Notice of this suspension is given

pursuant to 19 C.F.R. § 159.58 (2006), which states that: “[u]pon receipt of notification from

the Commissioner, each port director shall suspend liquidation . . . on or after the date of

publication of . . . [a] Notice of Final Affirmative Antidumping Determination.” 19 C.F.R.

§ 159.58(a) (internal quotations omitted). This suspension stays in place until the period to

request a periodic review14 has expired. See generally id.; 19 U.S.C. § 1673b(d)(2).

Suspension is further extended upon a request for a periodic review pursuant to § 1675 for

entries subject to such review. See generally 19 U.S.C. § 1675(a); OKI Elec. Indus. Co. v.

United States, 11 CIT 624, 627, 669 F. Supp. 480, 483 (1987). Thereafter, if the results of a

periodic review are appealed to a NAFTA panel, at a party’s request, the suspension of

13
Sections 1671b(d) and 1673b(d) authorize Commerce to order Customs to collect
“provisional measures” upon a preliminary finding of material injury to the domestic industry.
As discussed in Tembec I, duties collected pursuant to a provisional measure are to be
refunded if the ITC’s final determination finds either no injury, or, under certain
circumstances, merely a threat of material injury to the domestic industry. The suspension
following a preliminary determination under §§ 1671b(d) and 1673b(d) is intended to ensure
that entries are not liquidated until after the final determination has been made.
14
The purpose of a periodic review is to provide an opportunity to make adjustments to
the duties provided for in AD/CVD orders, based on actual experience. “Unlike systems of
some other countries, the United States uses a ‘retrospective’ assessment system under which
final liability for antidumping and countervailing duties is determined after merchandise is
imported.” 19 C.F.R. § 351.212. “If Commerce finds that dumping or subsidization has
occurred, and the ITC finds that dumping or subsidization causes, or threatens to cause,
material injury to a domestic industry, interested parties, may, each year, upon the anniversary
of the original findings, request a [periodic review] to adjust the dumping or countervailing
duty in light of the importers’ actual current conduct.” Ontario Forest Indus. Ass’n v. United
States, 30 CIT __, __, 444 F. Supp. 2d 1309, 1311 (2006) (citing 19 U.S.C. § 1675.). Indeed,
in a “‘[periodic] review, Commerce recalculates the relevant variables to determine whether a
foreign country is continuing the practice of dumping, i.e., selling its merchandise in the
United States for less than a foreign like product in its home market.’” Decca Hospitality
Furnishings, LLC v. United States, 30 CIT __, __, 427 F. Supp. 2d 1249, 1251 (2006) (quoting
NTN Bearing Corp. v. United States, 295 F.3d 1263, 1266 (Fed. Cir. 2002)).
Consol. Court No. 05-00028 Page 11

liquidation continues pending the outcome of the appeal. See 19 U.S.C. § 1516a(g)(5)(C).

As to the subject merchandise, the parties agree that liquidation continues to be

suspended for a large majority of the entries.15 See Private-Party Pl.’s Resp. Remedy

Questions 6 (“Periodic reviews have been requested, and liquidation has been suspended or

enjoined, for entries from May 22, 2002 through November 4, 2004.”); Def.’s Resp. Ct.’s July

21, 2006 Order 6 (“Once periodic administrative reviews were requested, the liquidation of

pre-November 4, 2004 entries could be suspended only as a consequence of the conduct of

those reviews and subsequent suspensions . . . .”); Def.-Int.’s Resp. Ct.’s July 21, 2006 Order 4

(“To the extent that . . . periodic reviews have been requested in this case . . . liquidation of

those entries remain suspended pending the outcome of the binational panel review.”); Resp.

Pl. Gov’t of Canada, Pl.-Int. Canadian Provincial Gov’ts Ct.’s Remedy Questions 4

(“[R]espondents have requested administrative reviews and liquidation of entries covered by

those reviews remains suspended . . . .”).

Defendants do not quarrel with the timing or duration of the suspension of liquidation.

They agree that a suspension of liquidation has been in place for most of the entries from the

publication of the ITC final determination forward. See Def.’s Reply 43; Def.’s Resp. Ct.’s

July 21, 2006 Order 8. Rather, they argue that the continued suspension of liquidation

provided for in § 1516a(g)(5)(C), which results from the appeal of a final determination in a

periodic review, does not allow for what they describe as “retroactive” relief. Thus,

Defendants contend that this suspension of liquidation does not have the same effect as an

15
Those few pre-November 4, 2004 entries for which periodic reviews were not
requested have been liquidated through active or deemed liquidation. See generally 19 U.S.C.
§ 1504.
Consol. Court No. 05-00028 Page 12

injunction entered by this Court. See Def.-Int.’s Resp. Ct.’s July 21, 2006 Order 2 (“[T]he

liquidation rule of § 1516a(g)(5)(B) must continue to apply even if liquidation is

suspended . . . .”); see also Def.’s Reply 43 (“Canada’s interpretation ignores the express

language of the statute by superimposing upon the statute the concept that the effective date

established in 19 U.S.C. § 1516a(g)(5)(B) applies only to the extent that any entries have not

been suspended in a subsequent review. Indeed, acceptance of that interpretation would grant

parties what the statute specifically precludes — a retroactive effective date for a panel

decision concerning an investigation determination as a consequence of a subsequent

administrative suspension.”).16

Despite Defendants’ contentions, a review of the legislative history for subsections

1516a(g)(5)(B) and (C) confirms that they were enacted to achieve the goals of prompt

liquidation of uncontested entries and the ultimate liquidation of contested entries in

accordance with final litigation results. Viewed in the context of the law as it existed when the

subsections were drafted, it becomes apparent that § 1516a(g)(5)(B) operates more narrowly

than Defendants argue, and that the operation of § 1516a(g)(5)(C) is necessarily broader.

16
It should be noted that in at least one past investigation, Commerce ordered a full refund
of cash deposits in response to an adverse NAFTA panel decision. See, e.g., Fresh Chilled and
Frozen Pork from Canada, 56 Fed. Reg. 29,464 (Dep’t Commerce June 27, 1991) (revocation of
countervailing duty order and termination of administrative review ). In Fresh Chilled and
Frozen Pork from Canada, Commerce ordered the refund of all estimated duties on
unliquidated entries following an adverse final NAFTA panel decision, notwithstanding
§ 1516a(g)(5)(B). There, the ITC originally rendered an affirmative threat of injury
determination, and issued a countervailing duty order. Canadian respondents subsequently
appealed the determination to a NAFTA panel. The panel reviewing the threat of injury
determination remanded to the ITC, and pursuant to that remand, the ITC rendered a negative
threat of injury determination. An Extraordinary Challenge Committee later affirmed the
panel’s negative determination. Thereafter, Commerce revoked the countervailing duty order
and instructed Customs “to proceed with liquidation of all unliquidated merchandise without
regard to countervailing duties and to refund all cash deposits and release all securities posted
to cover estimated countervailing duties.” Id.
Consol. Court No. 05-00028 Page 13

The drafters of § 1516a(g)(5)(B) 17 and of the simultaneously enacted § 1516a(g)(5)(C)

intended that a suspension of liquidation, continued by the appeal of a periodic review18 to a

NAFTA panel, was to act as would an injunction against liquidation issued by this Court under

the same circumstances.

Subsections 1516a(g)(5)(B) and (C), first appeared in the United States-Canada Free-

Trade Agreement Implementation Act of 1988 (“CAFTA”). See Pub. L. No. 100-449, 102

Stat. 1851 (1988). CAFTA’s Statement of Administrative Action (“US-CFTA SAA”) explains

that 19 U.S.C. § 1516a(g) was enacted to reflect the law relating to appeals to this Court as it

existed at that time:

Article 1904(15)(d) of the Agreement requires that the United
States and Canada amend their respective laws in order to ensure
that existing procedures concerning the refund, with interest, of
duties operate to give effect to a final binational panel decision.

US-CFTA SAA at 265–66. Congress thus intended that decisions by the newly created

binational panels would result in the same relief with respect to refunds, as would decisions of

this Court.

More particularly, the US-CFTA SAA explains that:

In order to enable a successful plaintiff to reap the fruits of its
victory . . . the statute authorizes the CIT [United States Court of

17
While the court need not identify every instance in which subsection 1516a(g)(5)(B),
rather than (C), may control, one example is useful. Where: (1) the original order is negative
(e.g., reflects a final determination of no injury to the domestic industry); (2) that order is
found to be “not in harmony” with a NAFTA panel decision following an appeal; and (3) no
periodic review is requested; § 1516a(g)(5)(B) would appear to control and the subject
merchandise entered before publication of the Timken notice would thus be liquidated without
AD/CV duties.
18
Prior to 1984, periodic reviews were automatic. Under current law, however, they must
be requested. See Sonco Steel Tube Div., Ferrum, Inc. v. United States, 12 CIT 990, 992, 698 F.
Supp. 927, 928 (1988) (“Congress amended the law in 1984 to make annual reviews optional.”).
Consol. Court No. 05-00028 Page 14

International Trade] to enjoin the liquidation of entries of
merchandise covered by certain types of challenged AD/CVD
determinations upon request for such relief and a proper
showing that the relief should be granted under the
circumstances. 19 U.S.C. 1516a(c)(2).[19] Under existing
caselaw, injunctive relief is granted automatically upon request
in cases involving challenges to AD/CVD determinations made
during the assessment stage of an AD/CVD proceeding. Zenith

19
19 U.S.C. § 1516a(c)(2) provides:

(2) Injunctive relief

In the case of a determination described in paragraph (2) of
subsection (a) of this section [“Review of determination”] by
the Secretary, the administering authority, or the Commission,
the United States Court of International Trade may enjoin the
liquidation of some or all entries of merchandise covered by a
determination of the Secretary, the administering authority, or
the Commission, upon a request by an interested party for such
relief and a proper showing that the requested relief should be
granted under the circumstances.

19 U.S.C. § 1516a(e) then makes court decisions applicable to enjoined entries as
follows:

(e) Liquidation in accordance with final decision

If the cause of action is sustained in whole or in part by a decision
of the United States Court of International Trade or of the United
States Court of Appeals for the Federal Circuit–

(1) entries of merchandise of the character covered by the
published determination of the Secretary, the
administering authority, or the Commission, which is
entered, or withdrawn from warehouse, for consumption
after the date of publication in the Federal Register by the
Secretary or the administering authority of a notice of the
court decision, and

(2) entries, the liquidation of which was enjoined under
subsection (c)(2) of this section,

shall be liquidated in accordance with the final court decision in
the action. Such notice of the court decision shall be published
within ten days from the date of the issuance of the court decision.
Consol. Court No. 05-00028 Page 15

Radio Corp. v. United States, 710 F.2d 806 (Fed. Cir. 1983).
However, injunctive relief is rarely, if ever, granted in cases
involving challenges to AD/CVD determinations made during
the initial investigation stage of an AD/CVD proceeding. See,
e.g., American Spring Wire Corp. v. United States, 578 F. Supp.
1405 (Ct. Int’l Trade 1984).

Id. at 265. The legislative history, therefore, indicates that Congress intended subsections

1516a(g)(5)(B) and (C) to provide for the same liquidation results when appeals were taken to

a NAFTA panel, as when appeals of final determinations were taken to this Court. Because a

NAFTA panel would have no equity powers,20 however, the device used to achieve this result

was an injunction-like suspension of liquidation. Hence, because injunctions were “rarely, if

ever, granted”21 when appeals were taken to this Court following final determinations at the

initial investigation stage, i.e., the process leading to an AD/CVD order, § 1516a(g)(5)(B)

makes no provision for a suspension of liquidation when such final determinations are

appealed to NAFTA panels. On the other hand, because injunctions were viewed by Congress

as automatic when requested following the appeal of a periodic review to this Court,

§ 1516a(g)(5)(C) makes the “continued” suspension of liquidation automatic when these

results are appealed to a NAFTA panel.

20
Congress specifically chose not to provide such authority, as demonstrated by its
instruction that “panels will not have equity powers” and that “the injunctive remedy provided
by section [1516a(c)(2)] will not be available to prevent liquidation.” US-CFTA SAA at 266.

21
Such injunctions were rare because of the legal standard requiring proof of “irreparable
harm.” Because foreign exporters’ and importers’ interests in upsetting unfair trade orders
were protected by the administrative suspension of liquidation, they did not need injunctive
relief at the investigative stage. The domestic industry, which would be opposed to the
nonexistence of such orders, could obtain relief going forward and, bearing no duty obligation,
likewise could not show irreparable harm in connection with the investigative stage. See Am.
Spring Wire Corp., 7 CIT at 6, 578 F. Supp. at 1408.
Consol. Court No. 05-00028 Page 16

Thus, the purpose of the subsections was to codify Congress’s understanding of the

law. Subsequent judicial developments with respect to matters appealed to this Court cannot,

of course, change the meaning of the subsections’ words with respect to matters appealed to

NAFTA panels. An examination of contemporaneous judicial decisions, though, can serve to

clarify how they apply to the facts of this case. When the subsections were drafted, there was

no disagreement22 that if a periodic review were requested and an injunction granted, all

unliquidated merchandise would be liquidated in accordance with the ultimate determination

of: (1) the appeal of the periodic review; or (2) the appeal of the underlying AD duty order.

See Sonco Steel Tube Div., Ferrum, Inc. v. United States, 12 CIT 990, 993, 698 F. Supp. 927,

930 (1988) (“Apparently, there is agreement that where requested annual reviews have not

22
In response to the court’s questions, Defendants have acknowledged that “section
1516a(g)(5)(C) reflects the Government’s prior view that a request for an administrative
review was necessary to obtain suspension of liquidation, pursuant to 19 U.S.C. § 1516a(c)(2)
[providing for injunction of liquidation upon request of an interested party in the context of an
appeal to this Court] even if a plaintiff sought review of an issue solely involving the original
investigation.” Def.’s Resp. Ct.’s July 21, 2006 Order 3. The other parties agree with this
conclusion. See Def.-Int. Resp. Ct.’s July 21, 2006 Order 3 (“That the Congress . . . provided
for a statutory equivalent to court-ordered injunction against liquidation only in the case of
binational panel reviews of periodic reviews . . . does appear to reflect the U.S. Government’s
view of the circumstances under which injunctions against liquidation were properly
granted . . . .”); Private-Party Pl.’s Resp. 3 (stating that a party “could ensure its right to a full
refund by obtaining a continued suspension of liquidation through the periodic review
process . . . by requesting a review”); Resp. Pl. Gov’t of Canada, Pl.-Int. Canadian Provincial
Gov’ts Ct.’s Remedy Questions 3 (“19 U.S.C. § 1516a(g)(5)(c) reflects . . . that it was
necessary for a plaintiff seeking review of an investigation determination to request an
administrative review to obtain continued suspension of liquidation.”). While the
Government’s view was the subject of several divergent opinions in this Court between 1984
and 1998, this position was eventually rejected by the Court of Appeals for the Federal Circuit in
Asociacion Colombiana de Exportadores de Flores v. United States, which found that an
injunction could be sought to halt liquidation where only the findings resulting in the
antidumping duty order were challenged. 916 F.2d 1571, 1575 (Fed. Cir. 1990) (“The
government, however, seeks to liquidate the entries for the initial review period at the original,
and now erroneous, level of 4.4 percent, solely because [appellant] failed to request an annual
review, in which it could not have litigated the validity of that original dumping margin, to
permit the government to do so would be unfair to [appellant]. Nothing in the statute suggests
that Congress intended to produce such an inequitable result.”).
Consol. Court No. 05-00028 Page 17

been completed before a court decision finding an affirmative antidumping determination

invalid there is no basis for liquidation with antidumping duties. Therefore, a court order

totally invalidating an [agency’s] original determination, which order occurs in the midst of an

annual review, will result in the suspended entries being liquidated with no antidumping

duties, even though they were entered prior to the court’s decision.”); see also Asociacion

Colombiana de Exportadores de Flores v. United States, 916 F.2d 1571, 1575 (Fed. Cir. 1990).

Once the first periodic review of an AD/CVD order was completed, an appeal of the review

determination to this Court would result in the entry of an injunction against liquidation. This

injunction would protect unliquidated entries from premature liquidation and ensure the victor

the fruits of its victory resulting from its appeals. Under the facts of this case, there can be

little doubt that Congress intended that the suspension of liquidation found in

§ 1516a(g)(5)(C), which substituted for a court-ordered injunction, would serve to prevent

premature liquidation of pre-Timken notice entries. While Defendants may characterize this

as retroactive relief, it is the result that would have obtained upon the entry of a court-ordered

injunction at the time §§ 1516a(g)(5)(B) and (C) were enacted. It necessarily follows that

Congress, having intended parallel remedies, intended that the suspension of liquidation

provided for in § 1516a(g)(5)(C) would provide the same result following a NAFTA panel

decision, as would an injunction issued by this Court.

The absence of any language in § 1516a(g)(5)(C) explicitly allowing for an order of

liquidation during, or following the appeal process, further demonstrates that Congress

expected liquidation of all entries subject to a suspension of liquidation to occur in accordance

with a NAFTA panel’s final determination. In those situations where no periodic review is

requested following the entry of an unfair trade order, the suspension of liquidation ceases, and
Consol. Court No. 05-00028 Page 18

the liquidation instructions of § 1516a(g)(5)(B) govern. When a periodic review has been

requested, however, § 1516a(g)(5)(C) provides no corresponding authority for Commerce to

order liquidation. The absence of a liquidation provision in § 1516a(g)(5)(C) was not meant to

prevent liquidation altogether. All parties agree that the authority to order liquidation is

necessarily implied at the conclusion of an appeal of a periodic review, and that all suspended

entries are to be liquidated in accordance with the final results of that litigation. See Def.’s

Resp. Ct.’s July 21, 2006 Order 3 (“We agree that, even though 19 U.S.C. § 1516a(g)(5)(C)

lacks a provision expressly governing the liquidation of entries following issuance of a

NAFTA panel report concerning a periodic administrative review, liquidation of those entries

is governed by the panel report, provided that the entries are subject to an administrative

suspension pursuant to 19 U.S.C. § 1516a(g)(5)(C).”) (emphasis in original).

Yet, having conceded the existence of a suspension following a request for a periodic

review, and having agreed that a final determination of a NAFTA panel in a periodic review

necessarily provides authority for Commerce to order liquidation of reviewed entries,

Defendants nonetheless argue that the decision of the NAFTA panel would not apply to all of

the suspended entries. See Def.’s Reply 43. Thus, Defendants claim that the suspension of

liquidation found in § 1516a(g)(5)(C) is effective for some purposes, but not for others. That

is, Defendant maintains that despite the absence of express liquidation language,

§ 1516a(g)(5)(C) contemplates liquidation in accordance with the decision as to matters raised

by a periodic review, but not as to issues that impact the underlying AD/CVD order. The

court rejects this argument as inconsistent with the statute, which does not make such a

differentiation. The argument is also inconsistent with the intent of Congress that there be the

same results with respect to refunds whether an appeal is taken to a NAFTA panel or this
Consol. Court No. 05-00028 Page 19

Court. As the Government of Canada points out, “[t]he absence of an express liquidation

provision in 19 U.S.C. § 1516a(g)(5)(C) demonstrates that, in implementing Chapter 19 of

NAFTA into U.S. law, Congress relied upon the principle that a final appellate decision

applies to all entries of subject merchandise for which liquidation has been suspended.” Resp.

Pl. Gov’t of Canada, Pl.-Int. Canadian Provincial Gov’ts Ct.’s Remedy Questions 1.

The foregoing analysis confirms that Congress established a system to account for

NAFTA determinations that is both fair and in accord with the goal of enabling “a successful

plaintiff to reap the fruits of its victory.” US-CFTA SAA at 265. If an unfair trade order falls

because the underpinning provided by the ITC injury determination fails, there is no basis for

assessing duties to offset unfair trading practices. See Asociacion Colombiana de

Exportadores de Flores, 916 F.2d at 1577 n.21 (“The flaw in the government’s argument is

that without a valid antidumping determination in the original order, there can be no valid

determination in a later annual review.”). Entries, the liquidation of which has been

suspended, cannot, then, be liquidated with AD/CV duties under these conditions. The

legislative history makes it clear that Congress did not set up a system to retain duties that are

not owed. Rather, Congress provided for a suspension of liquidation to keep entries available

for liquidation in accordance with law.
Consol. Court No. 05-00028 Page 20

III. Conclusion

In applying the foregoing analysis to the facts of this case, the court holds that

liquidation of a majority of the subject entries is suspended. As a result, none of these

suspended entries can be liquidated except in accordance with the results of the final litigation

decision. Section 1516a(g)(5)(C) controls, and § 1516a(g)(5)(B) is, therefore, inapplicable.

Accordingly, all of Plaintiffs’ unliquidated entries, including those entered before, on, and

after November 4, 2004, must be liquidated in accordance with the final negative decision of

the NAFTA panel. Judgment shall be entered accordingly.

/s/Jane A. Restani
Jane A. Restani, Chief Judge

/s/Judith M. Barzilay
Judith M. Barzilay, Judge

/s/Richard K. Eaton
Richard K. Eaton, Judge

Dated this 13th day October, 2006
New York, NY