Atlantic Steel Co. v. United States

• Decision Date: 24 August 1984
• Docket Number: Court No. 84-4-00536.
• Citation: 592 F. Supp. 679
• Parties: ATLANTIC STEEL COMPANY, Continental Steel Corporation, Georgetown Steel Corporation, North Star Steel Texas, Inc., and Raritan River Steel Company, Plaintiffs, v. The UNITED STATES of America, Defendant, and Companhia Siderurgica De Guanabara and Companhia Siderurgica Belgo-Mineira, Intervenors.
• Court: U.S. Court of International Trade

592 F. Supp. 679

ATLANTIC STEEL COMPANY, Continental Steel Corporation, Georgetown Steel Corporation, North Star Steel Texas, Inc., and Raritan River Steel Company, Plaintiffs, v. The UNITED STATES of America, Defendant and Companhia Siderurgica De Guanabara and Companhia Siderurgica Belgo-Mineira, Intervenors.

Court No. 84-4-00536.

United States Court of International Trade.

August 24, 1984.

Patton, Boggs & Blow, Washington, D.C. (Charles O. Verrill, Jr., Frank R. Samolis, Michael D. Esch, and Jennifer A. Hillman, Washington, D.C., of counsel), for plaintiffs, Continental Steel Corp., Georgetown Steel Corp., North Star Steel Texas, Inc., and Raritan River Steel Co.

Fried, Frank, Harris, Shriver & Kampelman, Washington, D.C. (David E. Birenbaum, Alan Kashdan and Matt T. Morley, Washington, D.C., of counsel), for plaintiff Atlantic Steel Co.

Commercial Litigation Branch, Civ. Div., Dept. of Justice, Washington, D.C., (Richard K. Willard, Acting Asst. Atty. Gen., David M. Cohen, Director, J. Kevin Horgan, Washington, D.C., of counsel), for defendant.

Wald, Harkrader & Ross, Washington, D.C., (Christopher A. Dunn, Washington, D.C., of counsel), for intervenors COSIGUA and Belgo-Mineira.

Memorandum and Order on Plaintiff's Motion for Injunctive Relief

WATSON, Judge.

Plaintiffs have moved for a preliminary injunction enjoining the defendant from enforcing the Commerce Department's International Trade Administration's (ITA) Early Determination of Antidumping Duties¹ (Early Determination) made pursuant to 19 U.S.C. § 1673e(c), as well as returning dumping margins to the pre-Early Determination levels.

Plaintiffs allege that the ITA's Early Determination was not made in accordance with the law, resulting in the improper reduction of dumping margins from the approximately 65 percent level determined to exist in the ITA's Antidumping Duty Order to a revised level of approximately 6 percent proclaimed by the ITA in the Early Determination in question.

This Court finds that the plaintiffs are not entitled to an injunction that would return dumping margins to their pre-Early Determination level because such a remedy constitutes the ultimate relief plaintiffs are seeking. The Court does however, enjoin liquidations of the two August, 1983 entries that are encompassed within the ITA's Early Determination review.

Plaintiffs on September 30, 1982 filed petitions with the ITA and the International Trade Commission (ITC) alleging that carbon steel wire rod from Brazil was being sold in the United States at less than fair market value. The ITA and ITC made affirmative final determinations (48 Fed. Reg. 43202 (1983) and 48 Fed.Reg. 51178 (1983)) and an Antidumping Duty Order was published by the ITA in the Federal Register on November 16, 1983. 48 Fed. Reg. 52110 (1983). This Antidumping Duty Order directed United States Customs officers to require cash payment of estimated duties of 49.61 percent for future importations of carbon steel from Cosigua and 76.49 percent when importations from Belgo-Mineira occur.

On November 19, 1983 Cosigua and Belgo-Mineira requested that the ITA make an Early Determination and waive the cash deposit requirement mandated by the ITA's Antidumping Order. The ITA published notice of its intent to make an Early Determination on December 19, 1983. 48 Fed. Reg. 56098 (1983). Subsequently the ITA published its Early Determination of antidumping duty on April 10, 1984. 49 Fed. Reg. 14156 (1984). 19 U.S.C. § 1673e(c) requires that an early determination, determine the foreign market value and the United States price for all merchandise of such manufacturer, producer, or exporter described in that order which was entered, or withdrawn from warehouse, for consumption on or after the date of publication of an affirmative preliminary determination by the ITA under 19 U.S.C. § 1673b(b) and before the date of publication of the affirmative final determination by the ITC under 19 U.S.C. § 1673d(b).

The ITA's Early Determination was based on one export sale to the United States made by each of the intervenors in August, 1983 and home market sales made 15 days before and after the two export sales. As a result of its Early Determination the ITA recalculated dumping margins of 7.43 percent for Cosigua and 0 percent for Belgo Mineira. On April 16, 1983 the ITA instructed the Customs Service to liquidate the two August, 1983 entries encompassed within its Early Determination.

Plaintiffs claim that without a preliminary injunction enjoining the Early Determination from taking effect, as well as an injunction returning dumping margins to the higher level expressed in the ITA's Final Dumping Order, they will suffer irreparable injury from lost sales and foregone profits resulting from entries made on or after the publication of the Early Determination.

Plaintiffs allege that the Early Determination failed to take into account evidence contained within the administrative record of increases in October and November, 1983 in home market prices of approximately 20 percent, above the August prices examined in the Early Determination and offers of sales to the United States by intervenors in October and November, 1983 at prices substantially below the two export sales occurring in August, 1983, examined by the ITA in its Early Determination. Plaintiffs also contend that the Early Determination was not made in accordance with the law because it was not concluded within 90 days. Additionally, plaintiffs allege that the radical reduction in dumping margins expressed in the Early Determination, resulted...