Atlantic Steel Co. v. United States

8 Ct. Int'l Trade 146, 592 F. Supp. 679, 8 C.I.T. 146, 1984 Ct. Intl. Trade LEXIS 1899
CourtUnited States Court of International Trade
DecidedAugust 24, 1984
DocketCourt No. 84-4-00536
StatusPublished
Cited by1 cases

This text of 8 Ct. Int'l Trade 146 (Atlantic Steel Co. v. United States) is published on Counsel Stack Legal Research, covering United States Court of International Trade primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Atlantic Steel Co. v. United States, 8 Ct. Int'l Trade 146, 592 F. Supp. 679, 8 C.I.T. 146, 1984 Ct. Intl. Trade LEXIS 1899 (cit 1984).

Opinion

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 Duties 1 (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 Cosi-gua 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 en[148]*148tered, 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 in-tervenors 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 solely because of a devaluation of Brazilian currency that took place in early 1983 and that any change in dumping margins occurring because of this devaluation is contrary to law.

The defendant and intervenors claim that the Early Determination was made in accordance with the law and supported by substantial evidence. Although the intervenors contest the issuance of a preliminary injunction in any form, the defendant is willing to consent to an injunction enjoining liquidation of the two August, 1983 entries.

In order to preserve the status quo this Court is authorized to grant injunctive relief. 28 U.S.C. § 2643(c). Plaintiffs must establish the following four elements in order to prevail on its motion for a preliminary injunction:

(1) That they will be immediately and irreparably injured

(2) That there is a likelihood that they will succeed on the merits

(3) That the public interest would be better served if the relief requested was granted

[149]*149(4) That the balance of hardships on all the parties favors the moving party.

Zenith Radio Corp. v. United States, 710 F.2d 806, 809 (Fed. Cir. 1983).

While this Court is required to consider all four factors, a flexible approach has been adopted in which the moving party’s burden of persuasion on its likelihood of success on the merits, is in inverse proportion to the severity of the injury the moving party will sustain without injunctive relief. American Air Parcel v. United States, 1 CIT, 293, 515, F. Supp. 47 (1981). “The critical factors are the probability of irreparable injury to the movant should the equitable relief be withheld and the likelihood of harm to the opposing party if the Court were to grant the interlocutory injunction.” American Air Parcel v. United States, at 299-300.

After examining all four factors this Court holds that during the pendency of this action an injunction is required enjoining liquidation of the two August, 1983 entries.

The consequences of liquidation of entries involved in an agency determination occurring prior to judicial review of that determination has been deemed to constitute irreparable injury to a party moving for injunctive relief. Zenith Radio Corp. v. United States, supra. Entries encompassed within an Early Determination investigation are subject to assessment and liquidation at any time after the publication of the Early Determination. 19 U.S.C. § 1673e(c).

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Related

United States Steel Corp. v. United States
614 F. Supp. 1241 (Court of International Trade, 1985)

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8 Ct. Int'l Trade 146, 592 F. Supp. 679, 8 C.I.T. 146, 1984 Ct. Intl. Trade LEXIS 1899, Counsel Stack Legal Research, https://law.counselstack.com/opinion/atlantic-steel-co-v-united-states-cit-1984.