666 F.Supp. 1558 (CIT. 1987), 87-06-00738, Timken Co. v. United States

Docket Nº:Court No. 87-06-00738.
Citation:666 F.Supp. 1558
Party Name:The TIMKEN COMPANY, Plaintiff, v. UNITED STATES, Defendant.
Case Date:July 14, 1987
Court:Court of International Trade
 
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Page 1558

666 F.Supp. 1558 (CIT. 1987)

The TIMKEN COMPANY, Plaintiff,

v.

UNITED STATES, Defendant.

Court No. 87-06-00738.

United States Court of International Trade.

July 14, 1987

Stewart and Stewart, Eugene L. Stewart and Terence P. Stewart, Washington, D.C., for plaintiff.

Richard K. Willard, Asst. Atty. Gen., David M. Cohen, Director, Civil Div., Commercial Litigation Branch, U.S. Dept. of Justice, Platte B. Moring, III, Washington, D.C., for defendant.

Graham & James, Lawrence R. Walders and Brian E. McGill, Washington, D.C., for China Nat. Machinery & Equipment Import and Export Corp., amicus curiae.

MEMORANDUM OPINION

TSOUCALAS, Judge:

This opinion is issued in conformity with this Court's order of June 24, 1987, denying plaintiff's application for a preliminary injunction. Plaintiff commenced this action to challenge a final affirmative determination by the Department of Commerce, which excluded one foreign exporter from the scope of the dumping finding. Tapered Roller Bearings from the People's Republic of China; Final Determination of Sales at Less Than Fair Value, 52 Fed.Reg. 19748 (May 27, 1987). Plaintiff concurrently applied for a temporary restraining order and preliminary injunction, seeking to enjoin liquidation of the entries from China National Machinery & Equipment Import & Export Corporation (CMEC), the exporter excluded from the final determination. On June 17, 1987, this Court denied plaintiff's application for a temporary restraining order and on June 23, 1987, oral arguments and a full hearing were had before this Court on whether a preliminary injunction should issue. CMEC's application to appear amicus curiae at the hearing was granted.

BACKGROUND

Plaintiff is a domestic producer of tapered roller bearings (TRBs), and was petitioner below in the antidumping investigation of TRBs from the People's Republic of

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China (PRC). The investigation covered two exporters: (1) CMEC, the only known exporter of TRBs from the PRC to the United States; and (2) Premier Bearing & Equipment, Limited (Premier), a Hong Kong based trading company, exporting TRBs produced in the PRC, from Hong Kong to the United States. In the PRC, the same factories produce TRBs for both companies. Therefore, when Commerce issued its preliminary determination of sales at less than fair value, a single margin of 9.65 percent was estimated for both companies, to prevent those factories from selling through the exporter with the lower margin. 52 Fed.Reg. 3833 (February 6, 1987). As of the date of that preliminary determination, liquidation of Chinese TRB entries was suspended. On May 27, 1987, Commerce published the results of its final determination that TRBs from the PRC are being sold at less than fair value with a weighted average dumping margin of .97 percent; however, no dumping margins were found for CMEC. 52 Fed.Reg. 19748 (May 27, 1987). Subsequently, the ITC determined that a domestic industry is suffering material injury or threat thereof by reason of imports from the PRC. Tapered Roller Bearings and Parts Thereof and Certain Housings Incorporating Tapered Rollers from Hungary, The PRC, and Romania, 52 Fed.Reg. 22399 (June 11, 1987).

As a result of the negative finding that CMEC exports were not subject to dumping duties, Commerce directed suspension of liquidation terminated for these entries. 52 Fed.Reg. 19748. Plaintiff alleges several errors committed by Commerce in its finding of no dumping by CMEC, and argues that if its contentions are ultimately sustained after the goods have been liquidated, then its remedy has been forfeited. This loss of complete relief, in conjunction with the proprietary losses, which it is alleged that plaintiff will incur, are the gravamen of plaintiff's claim of irreparable injury.

DISCUSSION

In order for a preliminary injunction to issue, plaintiff must clearly demonstrate: (1) the threat of immediate irreparable harm; (2) the likelihood of success on the...

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