Ugine-Savoie Imphy v. U.S.

• Decision Date: 03 November 2000
• Docket Number: Court No. 00-08-00423.,Slip Op. 00-145.
• Citation: 121 F.Supp.2d 684
• Parties: UGINE-SAVOIE IMPHY, Ugine Stainless and Alloys, Inc., and Techalloy, Inc., Plaintiffs, v. UNITED STATES, Defendant, and Carpenter Technology, Empire Specialty Steel, United Steelworkers of America (AFL-CIO/CLC), Defendant Intervenors.
• Court: U.S. Court of International Trade

121 F.Supp.2d 684

UGINE-SAVOIE IMPHY, Ugine Stainless and Alloys, Inc., and Techalloy, Inc., Plaintiffs, v. UNITED STATES, Defendant and Carpenter Technology, Empire Specialty Steel, United Steelworkers of America (AFL-CIO/CLC), Defendant Intervenors.

Slip Op. 00-145.

Court No. 00-08-00423.

United States Court of International Trade.

November 3, 2000.

Weil, Gotshal & Manges (Stuart M. Rosen, Gregory Husisian), New York, NY, for Plaintiffs.

Collier, Shannon, Scott (Laurence J. Lasoff, Kathleen Cannon), Washington, D.C., for Defendant-Intervenors.

MEMORANDUM OPINION

CARMAN, Chief Judge.

Plaintiffs move for a preliminary injunction following a finding by the United States International Trade Commission (ITC) after a five year sunset review that revocation of antidumping orders on stainless steel wire rod from France would likely lead to a recurrence of material injury to the United States domestic industry within a reasonably foreseeable time. Plaintiffs seek to enjoin the United States from issuing instructions to liquidate or from liquidating any and all unliquidated entries of stainless steel wire rod from France produced by the Plaintiffs and entered or withdrawn from warehouse for consumption after January 1, 2000 until the lawsuit commenced by the Plaintiffs challenging the ITC's sunset review determination receives final judicial review. The United States consents to the issuance of a preliminary injunction. Defendant-Intervenors object.

BACKGROUND

On July 1, 1999, the ITC initiated a five year review pursuant to section 751(c) of the Tariff Act of 1930, as amended by 19 U.S.C. § 1675(c) (hereinafter, sunset review). See Stainless Steel Wire Rod From Brazil, France, India, and Spain, 64 Fed. Reg. 35697 (July 1, 1999). This review was conducted to determine whether revocation of the countervailing duty and antidumping duty orders on stainless steel wire rod from Brazil, France, India, and Spain would likely lead to continuation or recurrence of material injury within a reasonably foreseeable time. On October 15 1999, the ITC determined that it would conduct a full review pursuant to the sunset law's provisions. On July 21, 2000, the ITC published notice of its final determination, finding in part that revocation of the antidumping duty orders on stainless steel wire rod from France would likely lead to a continuation or recurrence of material injury to the United States domestic industry within a reasonably foreseeable time. See Stainless Steel Wire Rod From Brazil, France, India, and Spain, 65 Fed.Reg. 45409, 45409 (July 21, 2000).

On September 20, 2000, Plaintiffs timely filed a complaint with this Court challenging the ITC's final sunset review determination. On October 20, 2000, Plaintiffs filed this motion for preliminary injunction seeking to enjoin liquidation of all unliquidated entries of subject merchandise produced by the Plaintiffs and entered or withdrawn from warehouse for consumption after January 1, 2000.¹

Prior to the Uruguay Round, the antidumping laws did not effectively restrict the duration of an antidumping order. Antidumping duties were imposed for as long as dumping or injury continued, subject only to the possibility of yearly administrative reviews establishing the applicable antidumping duty rate. The law, however, did provide that Commerce could revoke an antidumping order if there were no request for an administrative review of that order for four consecutive years. See 19 C.F.R. § 353.25 (1994). This provision, however, was infrequently used.²

With the passage of the Uruguay Round Agreements Act, Pub.L. No. 103-465, 108 Stat. 4809 (Dec. 8, 1994), Commerce's regulations and the Trade Agreements Act of 1979 were amended to provide several methods by which an antidumping order could be terminated or revoked. An antidumping order may be revoked where Commerce determines that "[a]ll exporters and producers covered at the time of revocation by the order... have sold the subject merchandise at not less than normal value for a period of at least three consecutive years" and "[I]t is not likely that those persons will in the future sell the subject merchandise at less than normal value." 19 C.F.R. § 351.222(b)(1)(i)-(ii) (1998). An antidumping order may also be revoked where either the circumstances surrounding the order have changed sufficiently to warrant revocation or where the producers accounting for substantially all of the production of the relevant domestic like product express a lack of interest in the continuation of the order. See 19 U.S.C. § 1675(b); 19 C.F.R. § 351.222(g) (1998).

Most relevant to this case, however, an antidumping order may be revoked or terminated by Commerce or the ITC through the sunset review process. See 19 U.S.C. § 1675(c). This process requires Commerce and the ITC to invite interested parties to provide information pertaining to the impact that revocation of the antidumping order would have on the relevant domestic industry. See 19 U.S.C. § 1675(c)(2). If this information is provided, it is then used to aid Commerce in determining whether the revocation of the antidumping order would likely lead to "a continuation or recurrence of sales of the subject merchandise at less than fair value." 19 U.S.C. § 1675a(c)(1). The ITC similarly uses this information when determining whether revocation of the same order would likely lead to "continuation or recurrence of material injury within a reasonably foreseeable time" 19 U.S.C. § 1675a(a)(1). If Commerce and the ITC make affirmative determinations, the antidumping orders are to remain in effect for an additional five years, subject to yearly administrative reviews. Under the sunset review procedures, this process is to repeat until either Commerce determines that there is no threat of continued or recurring dumping or the ITC determines that there will likely not be a continuation or recurrence of material injury to the domestic industry within a reasonably foreseeable time. See 19 U.S.C. § 1675(c)(1)(C). Where, however, no interested parties submit information regarding the effect of revocation on the domestic industry, the antidumping duty order is automatically terminated. See 19 U.S.C. § 1675(c)(3)(A).

DISCUSSION

The Court has jurisdiction over Plaintiffs' underlying litigation pursuant to 19 U.S.C. § 1581(c) and sections 516A(a)(2)(A)(i)(I) and (B)(iii) of the Tariff Act of 1930, as amended by 19 U.S.C. §§ 1516a(a)(2)(A)(i)(I) and (B)(iii) (1999). Plaintiffs' motion for preliminary injunction is properly before this Court pursuant to 19 U.S.C. § 1516a(c) (1994).

The facts before this Court are undisputed. On July 21, pursuant to a five-year sunset review, the ITC published notice of its final determination that antidumping duty orders on stainless steel wire rod from France were to continue due to the likelihood that revocation would lead to continued material injury to the United States domestic industry. Plaintiffs challenge this determination and, now, seek a preliminary injunction enjoining the United States from liquidating any and all entries of subject merchandise produced by the Plaintiffs and entered or withdrawn from warehouse for consumption after January 1, 2000.

It is well settled that a preliminary injunction is an extraordinary remedy. Therefore, before the Plaintiffs can be granted such relief they must establish: (1) in the absence of a preliminary injunction, they will suffer irreparable harm; (2) the balance of hardships tilts in the movant's favor; (3) there is a likelihood of success on the merits; and (4) the grant of a preliminary injunction is not contrary to public interest. See NMB Singapore Ltd. v. United States, 120 F.Supp.2d 1146, ___, No. 00-144, Slip Op., at 7 (CIT, Nov. 3, 2000), citing, FMC Corp. v. United States, 3 F.3d 424, 427 (Fed.Cir.1993). For the reasons stated below, this Court finds that the Plaintiffs have satisfied the four criteria and are, therefore, entitled to preliminary injunctive relief.

A. Irreparable Harm

Plaintiffs argue they will suffer immediate and irreparable harm if the unliquidated entries of subject merchandise entered into the United States after January 1, 2000 are liquidated prior to the completion of final judicial review in this case. Specifically, Plaintiffs argue that if they succeed in their legal challenge of the ITC's sunset review determination they will suffer the unrecoverable loss of all antidumping duties paid on the liquidated entries, as well as the negation of their statutory right to effective and meaningful judicial review.

In NMB Singapore, Ltd. v. United States, 120 F.Supp.2d at ___-___, Slip Op., at 9-10, this Court extended the rule established by the United States Court of Appeals for the Federal Circuit (Federal Circuit) in Zenith Radio Corp. v. United States, 710 F.2d 806, 810 (Fed.Cir.1983)³ to cases challenging an affirmative sunset review determination where the order has continued in force. The Zenith court held that "the inability of reviewing courts to meaningfully correct the [administrative] review determination is irreparable injury that must be considered by the trial court..." 710 F.2d at 811. In NMB Singapore, this Court held that, when a plaintiff challenges an affirmative sunset review determination, the potential unrecoverable loss of antidumping duties paid on entries liquidated prior to the entry of final judgment and the attendant negation of a plaintiff's statutory right to meaningful judicial review constitutes irreparable harm. See NMB Singapore, at ___, Slip Op., at 9. This Court found that "because the antidumping order remains in effect, and because the liquidation of entries is not suspended during the pendancy of the Plaintiffs' legal challenge, the Plaintiffs are faced with potential harm similar to that faced by parties challenging an administrative review determination" and that "absent a preliminary injunction suspending liquidation, judicial review could not...