OKI Elec. Industry Co., Ltd. v. US

• Decision Date: 28 August 1987
• Docket Number: Court No. 86-07-00833.
• Citation: 669 F. Supp. 480,11 CIT 624
• Parties: OKI ELECTRIC INDUSTRY COMPANY, LTD., Plaintiff, v. UNITED STATES, Defendant, Motorola, Inc., Texas Instruments, Inc., Micron Technology, Inc., Defendants-Intervenors.
• Court: U.S. Court of International Trade

669 F. Supp. 480

11 CIT 624

OKI ELECTRIC INDUSTRY COMPANY, LTD., Plaintiff, v. UNITED STATES, Defendant Motorola, Inc., Texas Instruments, Inc., Micron Technology, Inc., Defendants-Intervenors.

Court No. 86-07-00833.

United States Court of International Trade.

August 28, 1987.

Wilmer, Cutler & Pickering (A. Douglas Melamed, on the brief, and motion, John D. Greenwald, on the brief, and Barry A. Spergel, on the motion) for plaintiff.

Richard K. Willard, Asst. Atty. Gen., David M. Cohen, Director, Commercial Litigation Branch, Civil Div., U.S. Dept. of Justice (J. Kevin Horgan, on the motion, Velta A. Melnbrencis, on the brief), and Office of the Deputy Chief Counsel for Intern. Trade, U.S. Dept. of Commerce (Andrea Migdal, on the motion) for defendant.

Micron Technology, Inc. (Larry L. Grant, on the motion), for defendants-intervenors.

MEMORANDUM OPINION

CARMAN, Judge:

Plaintiff, OKI Electric Company, Ltd. (OKI) moves for a preliminary injunction to enjoin the liquidation of certain entries of 64K DRAMs¹ from Japan which were entered or withdrawn from warehouse for consumption on or after December 11, 1985. This Court previously granted plaintiff's application for a temporary restraining order (TRO). At the hearing for the preliminary injunction, the parties consented to the extension of the TRO until August 26, 1987, upon which date this Court entered its order granting plaintiff's motion.

FACTS

In the latter part of June 1985, Micron Technology, Inc. filed petitions with the Department of Commerce (Commerce) and the International Trade Commission (ITC) alleging imports of 64K DRAMs from Japan were being sold or were likely to be sold in the United States at less than fair value (LTFV) and these imports were materially injuring or were threatening material injury to a domestic industry producing a like product. Accordingly, Commerce initiated an antidumping investigation, and the ITC commenced an injury investigation.

During the course of the investigation, Commerce examined sales of the subject merchandise for the period of January 1, 1985 through June 30, 1985. On December 11, 1985, Commerce published an affirmative preliminary LTFV determination which resulted in the suspension of liquidation and the commencement of the collection of estimated antidumping duty deposits, at the rate of 12.52% ad valorem, on plaintiff's entries of 64K DRAMs from Japan made on or after that date. 64K Dynamic Random Access Memory Components (64K DRAMs) From Japan; Preliminary Determination of Sales at Less Than Fair Value. 50 Fed.Reg. 50649 (1985).

Notice of the final affirmative LTFV determination, regarding the subject merchandise, was published by Commerce on April 29, 1986. 64K Dynamic Random Access Memory Components (64K DRAMs) From Japan: Final Determination of Sales at Less Than Fair Value. 51 Fed.Reg. 15943 (1986). This notice also stated Commerce was directing Customs to collect deposits at the rate of 35.34% ad valorem on plaintiff's entries and was notifying the ITC of the determination. On June 11, 1986, the ITC published notice of its final determination that an industry in the United States was materially injured by reason of the imports from Japan of 64K DRAMs. 64K Dynamic Random Access Memory Components (64K DRAMs) From Japan. 51 Fed.Reg. 21258 (1986). Consequently, based upon these final affirmative antidumping determinations, Commerce published an antidumping duty order covering the 64K DRAMs from Japan on June 16, 1986. Antidumping Duty Order; 64K Dynamic Random Access Memory Components (64K DRAMs) From Japan. 51 Fed.Reg. 21781 (1986). Commerce also established the estimated antidumping duty rate, on plaintiff's entries, at 35.34% ad valorem.

Shortly thereafter, OKI commenced this action pursuant to 28 U.S.C. § 1581(c). In Count I of its complaint, OKI challenged the lawfulness of the antidumping order. OKI alleged Commerce made numerous legal and factual errors and alleged the determination of sales at LTFV and of the deposit rates for entries during the pendency of this action were erroneous and not in accordance with law. Plaintiff then filed a motion for judgment upon the agency record in accordance with Rule 56.1 of the Rules of this Court. Defendant has not yet responded to that motion, which is still pending.

In Count II of the complaint, OKI alleged regardless of the lawfulness of the antidumping order and the final determination, Commerce erred by imposing an excessive deposit rate on entries between April 29, 1985 (the date of publication of the final determination) and June 16, 1985 (the date of publication of the antidumping order) in violation of 19 U.S.C. § 1673e(a)(3).

While this action, challenging the deposit rate set by the final antidumping duty order, has been pending, the first anniversary month of the antidumping duty order covering 64K DRAMs from Japan occurred in June of 1987. On June 30, 1987, plaintiff requested an administrative review pursuant to 19 U.S.C. § 1675(a) for the period December 11, 1985 through May 31, 1987. On July 31, 1987, however, plaintiff withdrew this request, and as none of the other parties requested an administrative review of plaintiff's entries, no review was undertaken. Consequently, Commerce, in accordance with its regulations, notified OKI it intended to assess and liquidate the subject entries at the deposit rate established in the final antidumping order. See 19 C.F.R. § 353.53a(b)

Plaintiff, in this proceeding, now seeks to restrain and enjoin the liquidation of those entries of 64K DRAMs from Japan.

BACKGROUND

In general, when a proper petition alleging foreign merchandise is being sold in the United States at less than fair value and a domestic industry is being materially injured, is threatened with material injury, or the establishment thereof is materially retarded, Commerce and the ITC, respectively, are required to initiate LTFV and injury investigations. 19 U.S.C. § 1673a; 19 C.F.R. § 353.37. The LTFV investigation usually covers a period from at least 150 days prior to and 30 days after the first date of the month during which the petition was received in acceptable form. 19 C.F.R. § 353.38.

If the ITC makes an affirmative preliminary determination of material injury within 45 days after the date on which the petition has been filed or on which it receives notice an investigation has been commenced, Commerce usually will make a preliminary LTFV determination within 160 days after the filing of the petition. 19 U.S.C. § 1673b; 19 C.F.R. § 353.39. If the preliminary LTFV determination is affirmative, then there is a suspension of the liquidation of the subject entries which were entered or withdrawn from warehouse on or after the date of publication of the determination notice. Importers are required to post a cash deposit, bond, or other security for the payment of estimated antidumping duties equal to the amount the foreign market value exceeds the United States price. 19 U.S.C. § 1673b(d); 19 C.F.R. § 353.39.

If the final determinations of Commerce and the ITC are affirmative, then an antidumping duty order is published and the liquidation of entries of the subject merchandise continues to be suspended. 19 U.S.C. § 1673d; 19 C.F.R. §§ 353.44, 353.48. The preliminary and final determination rates are used initially only as the basis for the collection of bond or cash deposits of estimated duties on entries made on or after the date of publication of the affirmative preliminary or final LTFV determination. See PPG Industries, Inc. v. United States, 11 CIT ___, ___, 660 F.Supp. 965, 969 (1987).

Each year, in accordance with 19 U.S.C. § 1675(a) and 19 C.F.R. § 353.53a, any interested party may obtain an administrative review (751 review) to determine the actual duties to be assessed on the entries subject to the antidumping duty order and to establish future estimated duties to be deposited. The 751 review is obtained by filing a proper request for review during the anniversary month of the publication of an antidumping duty order. If a request for review is timely received, the 751 review usually encompasses entries made during the twelve months immediately preceding the most recent anniversary month. 19 C.F.R. § 353.53a(b)(1). If the request for review is received during the first anniversary month after publication of an antidumping order, then, the first annual administrative review will cover the period from the date when liquidation of entries was first suspended to the end of the month immediately preceding the anniversary month. 19 C.F.R. § 353.53a(b)(2).

If Commerce receives no request for review during any anniversary month, then the entries during the immediate preceding time are not examined to determine the duties to be assessed. Instead, Commerce instructs Customs to assess antidumping duties at the rates of the estimated antidumping duty deposits that had been collected at the time of entry. The Customs Service is further instructed by Commerce to continue to collect estimated future duty deposits at the rate established in the final antidumping duty order ("the cash deposit previously ordered"). 19 C.F.R. § 353.53a(d).

DISCUSSION

It is well settled a preliminary injunction is an extraordinary remedy. Before such relief can be granted, the moving party must establish: (1) that it is likely to prevail on the merits of its claim; (2) that without the injunction, it will be immediately and irreparably harmed; (3) that the balance of hardship on all the parties favors the movant; and (4) that the public interest will be better served by issuing rather than denying the injunction. Matsushita Electric Industrial Co. v. United States, 823 F.2d 505, 509, (Fed.Cir.1987) petition for reh'g filed; Zenith Radio Corp. v. United States, 710 F.2d 806, 809 (Fed.Cir.1983).

Plaintiff contends this Court should enjoin liquidation: (1) to prevent the defendant from denying plaintiff its right not to pay unlawful...