Parkdale International Ltd. v. United States , 31 Ct. Int'l Trade 1728 ( 2007 )

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