FMC Corp. v. US
| Citation | 792 F. Supp. 1285,16 CIT 378 |
| Decision Date | 15 May 1992 |
| Docket Number | Court No. 92-04-00287. |
| Parties | FMC CORPORATION and Monsanto Company, Plaintiffs, v. UNITED STATES, Defendant, Rotem Fertilizers Ltd., Defendant-Intervenor. |
| Court | U.S. Court of International Trade |
Gibson, Dunn & Crutcher, Joseph H. Price and Thomas P. Simon, Washington, D.C., for plaintiffs FMC Corp. and Monsanto Co.
Stuart M. Gerson, Asst. Atty. Gen., David M. Cohen, Director, Commercial Litigation Branch, Civ. Div., U.S. Dept. of Justice, Jeffrey M. Telep, of counsel: Jeffery B. Denning, Attorney-Advisor, Office of the Chief Counsel for Import Admin., U.S. Dept. of Commerce, Washington, D.C., for defendant.
Kaplan Russin & Vecchi, Dennis James, Jr. and Kathleen F. Patterson, Washington, D.C., for defendant-intervenor Rotem Fertilizers Ltd.
Plaintiffs, FMC Corporation and Monsanto Company, have moved for a preliminary injunction to prevent the Government from liquidating any unliquidated entries of industrial phosphoric acid exported from Israel by defendant-intervenor Rotem Fertilizers Ltd. Rotem Fertilizers Ltd. is the corporate successor to Negev Phosphates, Ltd. ("Negev"), a party to the underlying administrative proceeding. For ease of understanding, defendant-intervenor will be referred to in this opinion as Negev.
On May 1, 1992, plaintiffs filed a motion for a temporary restraining order and a motion for a preliminary injunction. The Court granted plaintiffs' motion for a temporary restraining order on May 1, 1992 and scheduled a hearing on plaintiffs' motion for a preliminary injunction which was held on May 11, 1992.
On August 19, 1987, the Department of Commerce, International Trade Administration ("ITA"), published an antidumping duty order subjecting unliquidated entries of industrial phosphoric acid from Israel made on or after April 20, 1987 to possible assessment of antidumping duties. Antidumping Duty Order; Industrial Phosphoric Acid From Israel, 52 Fed.Reg. 31,057 (1987).
On July 19, 1991, the ITA published the final results of its first and second administrative reviews of the order covering exports of industrial phosphoric acid from Israel. Industrial Phosphoric Acid From Israel; Final Results of Antidumping Duty Administrative Reviews, 56 Fed. Reg. 33,248 (1991). The ITA determined that the dumping margin for Negev Phosphates, Ltd. was zero for the periods April 20, 1987 through July 31, 1988, and August 1, 1988 through July 31, 1989.
On September 24, 1990, at the request of plaintiffs and defendant-intervenor Negev, the ITA initiated a third administrative review of the antidumping duty order for the period August 1, 1989 through July 31, 1990. Initiation of Antidumping and Countervailing Duty Administrative Reviews, 55 Fed.Reg. 39,032 (1990).
During the course of the third administrative review, plaintiffs requested that the ITA determine whether Negev's home market sales were made at less than the cost of production ("COP") pursuant to 19 U.S.C. § 1677b(b) (1988).1 In support of their request, plaintiffs submitted a 1986 report estimating Negev's cost of producing industrial phosphoric acid. Plaintiffs compared this report to home market sales data submitted by Negev during the review.
ITA rejected plaintiffs' request for a COP investigation. ITA found that plaintiffs' COP allegation was deficient because the study was based on three year old COP data which had not been updated with information from Negev's response. Plaintiffs requested the ITA to reconsider its decision not to conduct a COP investigation and to allow them to submit supplemental information in regard to their COP allegation. ITA refused.
ITA issued its preliminary determination for the third review finding that Negev's dumping margin was zero and announcing its intention to revoke the antidumping duty order with respect to Negev. Industrial Phosphoric Acid From Israel; Preliminary Results of Antidumping Duty Administrative Review and Intent to Revoke in Part; Antidumping Duty Order, 56 Fed.Reg. 67,059 (1991). The basis for the revocation would be that Negev had zero dumping margins for three consecutive reviews and Negev's written agreement to immediate suspension of liquidation of entries and reinstatement of the antidumping duty order if Negev resumed less-than-fair-value sales of industrial phosphoric acid. Id. at 67,060.
Plaintiffs submitted a prehearing brief where they renewed their request that the ITA conduct a COP investigation. Plaintiffs also submitted supplemental information supporting their request.
On March 23, 1992, the ITA issued the final results of the third administrative review. Industrial Phosphoric Acid From Israel; Final Results of Antidumping Duty Administrative Review and Revocation in Part of the Antidumping Duty Order, 57 Fed.Reg. 10,008 (1992). In its final results, the ITA explained its denial of plaintiffs' request for a COP investigation. Id. at 10,008-09 (Comment 1). Since the ITA had found zero dumping margins with respect to Negev for three consecutive reviews, the ITA revoked the antidumping duty order with respect to Negev for all unliquidated entries of industrial phosphoric acid made on or after August 1, 1990. Id. at 10,008.
On April 21, 1992, plaintiffs filed a summons and on April 29, 1992, a complaint, challenging the ITA's final determination in the third administrative review of industrial phosphoric acid from Israel and the partial revocation. The complaint alleges that the ITA applied a legally incorrect standard to determine whether to initiate a COP investigation, that the administrative record does not contain substantial evidence to support the ITA's decision not to conduct a COP investigation, and that the ITA's refusal to accept supplemental information regarding the allegation of sales at below cost denied plaintiffs their right to procedural due process.
In order for a preliminary injunction to issue, plaintiffs must clearly demonstrate: (1) the threat of immediate irreparable harm; (2) the likelihood of success on the merits; (3) that the public interest is better served by issuing rather than denying the injunction; and (4) that the balance of hardships to the parties favors the plaintiffs. Zenith Radio Corp. v. United States, 710 F.2d 806, 809 (Fed.Cir.1983); Timken Co. v. United States, 11 CIT 504, 506, 666 F.Supp. 1558, 1559 (1987). "If any one of the requisite factors has not been established by plaintiffs, the motion for a preliminary injunction must be denied." Trent Tube Div., Crucible Materials Corp. v. United States, 14 CIT ___, ___, 744 F.Supp. 1177, 1179 (1990) citing S.J. Stile Assocs. Ltd. v. Snyder, 68 CCPA 27, 30, C.A.D. 1261, 646 F.2d 522, 525 (1981); Budd Co. Wheel and Brake Div. v. United States, 12 CIT 1020, 1023, 700 F.Supp. 35, 37 (1988).
Plaintiffs argue that if they prevail in this action, the ITA will be required to conduct a COP investigation which may lead to the finding of a dumping margin for Negev for the third administrative review. ITA will then be required to reinstate the antidumping duty order against Negev and will require the posting of cash deposits reflecting the dumping margin. Liquidation of Negev's future entries will be suspended until subsequent administrative reviews determine actual margins. Unless the ITA is enjoined, it will instruct the U.S. Customs Service to liquidate Negev's unliquidated entries and the opportunity to assess potential dumping duties will be lost on those entries even if the antidumping duty order is reinstated.
Liquidation of entries which are the subject of a challenged section 751 administrative review may constitute irreparable injury. Zenith, 710 F.2d at 810. In such a situation, generally only a one-year time period and a discrete number of entries are at issue. To allow the entries to be liquidated prior to the completion of the judicial challenge would eliminate the subject of the plaintiffs' only potential remedy. Id.
However, what is at issue in this case is more than just a challenge to an administrative review. Plaintiffs also challenge the partial revocation of the antidumping duty order. If plaintiffs win on the merits of this case, the...
To continue reading
Request your trial
-
Neenah Foundry Co. v. U.S.
...judicial review, on the grounds of failure to show irreparable harm and likelihood of success on the merits. FMC Corp. v. United States, 16 CIT 378, 792 F.Supp. 1285 (1992). The court of appeals concurred as to the second ground, thereby affirming the denial of the injunction, but it agreed......
-
Nucor Corp. v. U.S.
...entries, based on applicant's failure to establish irreparable harm and likelihood of success on the merits); FMC Corp. v. United States, 16 CIT 378, 792 F.Supp. 1285 (1992) (same), aff'd on alternative grounds, 3 F.3d 424 (Fed.Cir.1993). Moreover, as ICDAS itself candidly acknowledges, the......
-
Diamond Sawblades Mfrs. Coal. v. United States
...form of uncertainty in circumstances where Commerce has determined that no dumping has occurred, and that, as in FMC Corp. v. United States, 16 CIT 378, 792 F. Supp. 1285 (1992), aff'd, supra, 3 F.3d 424, liquidation of future entries cannot constitute immediate and irreparable harm to a do......
-
FMC Corp. v. U.S., 92-1366
...of IPA entries exported from Israel by Rotem Fertilizers Ltd. and its predecessor corporation, Negev Phosphate, Ltd. (Negev). 792 F.Supp. 1285. For the reasons set forth below, we I. BACKGROUND In 1987, the International Trade Administration of the United States Department of Commerce (Comm......