Filed: Aug. 17, 2005
Latest Update: Mar. 26, 2017
Summary: Slip Op. 05 - 97 UNITED STATES COURT OF INTERNATIONAL TRADE - - - - - - - - - - - - - - - - - - - x UGINE & ALZ BELGIUM, N.V.; ARCELOR STAINLESS USA, LLC; and ARCELOR TRAD- : ING USA, LLC, : Plaintiffs, : v. Court No. 05-00444 : UNITED STATES, : Defendant. - - - - - - - - - - - - - - - - - - - x Opinion & Order [Plaintiffs' preliminary application to enjoin Department of Commerce liquidation instructions to Bureau of Customs denied.] Dated: August 17, 2005 Shearman & Sterling LLP (Robert S. LaRu
Summary: Slip Op. 05 - 97 UNITED STATES COURT OF INTERNATIONAL TRADE - - - - - - - - - - - - - - - - - - - x UGINE & ALZ BELGIUM, N.V.; ARCELOR STAINLESS USA, LLC; and ARCELOR TRAD- : ING USA, LLC, : Plaintiffs, : v. Court No. 05-00444 : UNITED STATES, : Defendant. - - - - - - - - - - - - - - - - - - - x Opinion & Order [Plaintiffs' preliminary application to enjoin Department of Commerce liquidation instructions to Bureau of Customs denied.] Dated: August 17, 2005 Shearman & Sterling LLP (Robert S. LaRus..
More
Slip Op. 05 - 97
UNITED STATES COURT OF INTERNATIONAL TRADE
- - - - - - - - - - - - - - - - - - - x
UGINE & ALZ BELGIUM, N.V.; ARCELOR
STAINLESS USA, LLC; and ARCELOR TRAD- :
ING USA, LLC,
:
Plaintiffs,
:
v. Court No. 05-00444
:
UNITED STATES,
:
Defendant.
- - - - - - - - - - - - - - - - - - - x
Opinion & Order
[Plaintiffs' preliminary application to
enjoin Department of Commerce liquidation
instructions to Bureau of Customs denied.]
Dated: August 17, 2005
Shearman & Sterling LLP (Robert S. LaRussa, Stephen J. Marzen
and Ryan A.T. Trapani) for the plaintiffs.
Peter D. Keisler, Assistant Attorney General; David M. Cohen,
Director, and Jeanne E. Davidson, Deputy Director, Commercial Liti-
gation Branch, Civil Division, U.S. Department of Justice (Michael
D. Panzera); and Office of Chief Counsel for Import Administration,
U.S. Department of Commerce (Ada Loo and Arthur Sidney) and Bureau
of Customs and Border Protection, U.S. Department of Homeland
Security (Christopher Chen), of counsel, for the defendant.
Collier Shannon Scott, PLLC (David A. Hartquist, R. Alan Lu-
berda, Kathleen W. Cannon and Adam H. Gordon) for proposed
intervenor-defendants AK Steel Corporation, Allegheny Ludlum
Corporation, North American Stainless, United Auto Workers Local
3303, Zanesville Armco Independent Organization, and United Steel-
workers of America, AFL-CIO/CLC.
AQUILINO, Senior Judge: Jurisdiction of the court is
pleaded to be pursuant to 28 U.S.C. §1581(i) over the subject
matter of this action, which is the propriety of certain liquida-
Court No. 05-00444 Page 2
tion instructions that have been issued to the Bureau of Customs
and Border Protection, U.S. Department of Homeland Security1 by the
International Trade Administration, U.S. Department of Commerce2 in
conjunction with its Notice of Amended Final Determinations:
Stainless Steel Plate in Coils from Belgium and South Africa; and
Notice of Countervailing Duty Orders: Stainless Steel Plate in
Coils from Belgium, Italy and South Africa, 64 Fed.Reg. 25,288 (May
11, 1999), and its Antidumping Duty Orders; Certain Stainless Steel
Plate in Coils From Belgium, Canada, Italy, the Republic of Korea,
South Africa, and Taiwan, 64 Fed.Reg. 27,756 (May 21, 1999).
I
In commencing this action via summons and complaint,
counsel for the plaintiffs also filed applications for immediate
injunctive relief. The court promptly thereupon conferred with
them and counsel for the defendant (and the proposed intervenor-
defendants) who consented to entry (on July 27, 2005) of a
temporary restraining order, which, among other things, enjoins CBP
from implementing Liquidation Instructions issued by the
[ITA] in conjunction with Message No. 5182203 (July 1,
2005)[,] Message No[.] 5189205 (July 8, 2005), Message
No. 5189204 (July 8, 2005), Message No. 5199201 (July 18,
2005), or otherwise taking any action that results in the
treatment of entries of Stainless Steel Plate in Coils
hot rolled in Germany and not further cold rolled in
Belgium as having a country of origin of Belgium for the
purpose of assessing antidumping or countervailing
duties[.]
1
Referred to hereinafter as "CBP".
2
Referred to hereinafter as "ITA".
Court No. 05-00444 Page 3
The order covers listed entries of subject merchandise ("SSPC") in
the ports of Chicago (between July 29, 1999 and Oct. 31, 2001),
Houston (between Oct. 26, 1998 and Feb. 23, 2002), Los Angeles (on
April 13, 1999), Portland (between Feb. 10, 1999 and Jan. 29,
2002), Richmond (between Feb. 24, 1999 and July 17, 2001), Seattle
(between March 4, 1999 and Jan. 13, 2000), and Philadelphia
(between Sept. 8, 1998 and Feb. 25, 2002).
The defendant also consented to the motion of the above-
named domestic interested parties and certified or recognized
unions within the meaning of 19 U.S.C. §1677(9)(C) and (D) for
leave to intervene in this action as parties defendant. The
plaintiffs have now filed papers in opposition to this motion to
intervene, arguing, among other things, that this action
is one solely between [them], whose entries are at issue,
and the Government.
For their part, [the] . . . Proposed Intervenors[]
cannot identify any legally cognizable interest in this
proceeding. Contrary to [their] suggestion, this pro-
ceeding is not an appeal of administrative review pro-
ceedings. Proposed Intervenors' interested party status
in such an appeal is thus entirely irrelevant. Nor is
this proceeding one to determine whether or to what
extent Proposed Intervenors are entitled to disbursements
from the special accounts created by the Continued Dump-
ing and Subsidy Offset Act of 2000 ("CDSOA"), 19 U.S.C.
§ 1675c. As the Government has argued before the World
Trade Organization ("WTO"), the CDSOA is merely a dis-
bursement program and "has nothing to do with imported
goods or importers." . . . Ex. 1. The CDSOA deals only
with the allocation and disbursement of already collected
duties, not the Government's prior discretionary proced-
ures to assess and collect those duties.
Court No. 05-00444 Page 4
Memorandum in Opposition to Motion to Intervene, pp. 1-2. This
opposition has engendered in turn a motion by the proposed
intervenor-defendants for leave to respond to the plaintiffs, which
motion is hereby granted. The response is, in part, that,
while domestic parties may not appeal a liquidation by
Customs that has occurred, they can participate in a
challenge to liquidation instructions issued by Commerce
prior to liquidation. Arcelor cites no authority to the
contrary. Proposed intervenors were interested parties
in the proceedings that generated the challenged liquida-
tion instructions, and indeed, Commerce sought comments
from the domestic industry as well as Arcelor as to the
appropriate scope and nature of those instructions. Pro-
posed intervenors clearly have a cognizable interest in
the instructions issued and the underlying decision that
they represent.
Motion for Leave to Respond to Plaintiffs' Opposition to Motion to
Intervene, pp. 2-3.
Upon consideration of the arguments, well-presented on
both sides, the court concludes that the determinative factor is
the direct participation before the ITA by the petitioners-cum-
proposed-parties-at-bar in the agency promulgation of the liquida-
tion instructions now at issue herein. See, e.g., Memorandum in
Support of Plaintiffs' Motion for Temporary Restraining Order and
Preliminary Injunction [hereinafter "Plaintiffs' Memorandum"], Ex-
hibit 9. That is, having been privy to and part of that admini-
strative process, their motion for leave to formally join the
judicial review of the results thereof can be, and it hereby is,
granted.
Court No. 05-00444 Page 5
II
According to the complaint and corporate disclosure
statements on USCIT Form 13 filed in conjunction therewith, the
first-named plaintiff is a corporation organized under the laws of
Belgium, whereas the two Arcelor firms are creatures of the law of
Delaware, U.S.A. All three corporations are wholly-owned subsidi-
aries of a Luxembourg corporation, Arcelor S.A. Their complaint
avers:
German SSPC Mistakenly Entered as Belgian Merchandise
9. From September 4, 1998 to April 30, 2002, Ar-
celor imported into the United States SSPC that was
hot rolled in Germany and not further cold rolled in
Belgium. The country of origin of such merchandise
is Germany.
10. Although the SSPC was not further cold rolled
in Belgium, it was pickled, annealed, packaged, and
shipped from Belgium. Accordingly, at the time of en-
try, Arcelor mistakenly declared the country of origin
for the merchandise to be Belgium rather than Germany.
11. At the time Arcelor's German SSPC entered the
United States, the Antidumping and Countervailing Duty
Orders for SSPC from Belgium were in effect.
12. Arcelor paid cash deposits of antidumping and
countervailing duties on the German hot-rolled SSPC
that entered the United States at the rates specified
in the Orders for Belgian SSPC.
13. Because the country of origin of the SSPC im-
ported by Arcelor is Germany, that merchandise was not
and never has been subject to the Antidumping and Coun-
tervailing Duty Orders for S[SPC] from Belgium and Ar-
celor should not have had to pay cash deposits of anti-
dumping and countervailing duties.
14. Promptly after realizing its mistake, Arcelor
filed disclosures and timely protests with Customs
pursuant to 19 U.S.C. § 1514 to correct the country of
origin.
Court No. 05-00444 Page 6
15. For its part, Commerce mistakenly included the
German SSPC in its calculation of the antidumping duty
rates for Belgian SSPC in the first, second and third
periods of review.
* * *
16. Consistent with its long-standing practice,
in the Fourth Administrative Review of the Antidumping
Duty Order for S[SPC] from Belgium, Commerce determined
that SSPC hot rolled in Germany and not further cold
rolled in Belgium is German. . . .
* * *
Commerce Instructed Customs to Liquidate Entries
of Arcelor's German SSPC as Belgian Merchandise
* * *
20. On July 1, 2005, Commerce issued to Customs
. . . Fourth Review Period Antidumping Duty Liquida-
tion Instructions[]. Those instructions limited - to
entries of SSPC made on or after May 1, 2002 - appli-
cation of Commerce's determination that SSPC hot roll-
ed in Germany and not further cold rolled in Belgium
is not subject to the Antidumping Duty Order.
21. On July 1, 2005, Commerce issued a memoran-
dum attempting to explain its reasons for issuing the
Fourth Review Period Antidumping Duty Liquidation In-
structions. . . . Commerce refused to state that all
SSPC hot rolled in Germany and not further cold rolled
in Belgium, imported by Arcelor, is German for country-
of-origin purposes. . . .
22. On July 8, 2005, . . . Commerce issued . . .
for . . . entries for the period 09/01/1998 through
12/31/1999 [] "Countervailing Duty Liquidation Instruc-
tions" [that] . . . instructed Customs to liquidate
SSPC hot rolled in Germany and not further cold rolled
in Belgium as merchandise subject to the countervailing
duty order for SSPC from Belgium. . . . Commerce gave
no reason why it instructed Customs to liquidate German
merchandise as Belgian.
23. On July 8, 2005, . . . Commerce issued Coun-
tervailing Duty Cash Deposit Instructions for S[SPC]
from Belgium [that] . . . instructed Customs that
Court No. 05-00444 Page 7
"[e]ffective 05/01/2002 . . . entries of SSPC hot roll-
ed in Germany and not further cold rolled in Belgium
are not subject to the suspension of liquidation and do
not require cash deposits of estimated countervailing
duties." . . .
24. On July 18, 2005, Commerce instructed Customs
to liquidate German hot rolled SSPC entered between
November 4, 1998 and April 30, 2000 as subject to the
Antidumping Duty Order for SSPC from Belgium. . . . As
with the Countervailing Duty Liquidation Instructions,
Commerce gave no reason why it instructed Customs to
liquidate German merchandise as Belgian.3
Whereupon the plaintiffs claim that the referenced liquidation
instructions are arbitrary, capricious, an abuse of discretion, and
otherwise not in accordance with law under 5 U.S.C. §706(2)(A).
They pray for a declaratory judgment to this effect, which would be
the basis of injunction(s) against those instructions and a pos-
sible remand to the defendant in connection therewith.
A
The plaintiffs recognize, as they must, that a prelimi-
nary injunction is an extraordinary remedy and can only be granted
upon showing:
(1) A threat of immediate irreparable harm; (2) that the
public interest would be better served by issuing than by
denying the injunction; (3) a likelihood of success on
the merits; and (4) that the balance of hardship on the
parties favor[s issuance].
S.J. Stile Associates, Ltd. v. Snyder, 68 CCPA 27, 30, C.A.D. 1261,
646 F.2d 522, 525 (1981). That is, failure to bear the burden of
3
Boldface headings in original; citations omitted.
Court No. 05-00444 Page 8
persuasion as to any of these four factors is ground for denial of
an application. E.g., American Stevedoring Inc. v. U.S. Customs
Service, 18 CIT 331, 335, 852 F. Supp. 1067, 1071 (1994), citing Bo-
mont Industries v. United States, 10 CIT 431,
638 F. Supp. 1334
(1986), and FMC Corporation v. United States
3 F.3d 424, 427 (Fed.
Cir. 1993). See Plaintiffs' Memorandum, p. 5, citing Zenith Radio
Corp. v. United States,
710 F.2d 806, 809 (Fed.Cir. 1983).
(1)
Zenith is, of course, seminal authority with regard to
the Trade Agreements Act of 1979, as amended, but the controlling
issue therein was whether liquidation of the underlying entries
would eliminate the only remedy for an incorrect ITA determination
pursuant to that act's section 751 by depriving the Court of Inter-
national Trade of the ability (i.e., jurisdiction) to ensure anti-
dumping duties in accordance with the correct margin for those
entries. The court of appeals concluded that it would. See 710
F.2d at 809-10 and, for example, SKF USA Inc. v. United States, 28
CIT , , 316 F. Supp. 2d 1322, 1327 (2004). But jurisdiction of
the court is not necessarily in jeopardy. Indeed, as recited
above, paragraph 14, the plaintiffs claim to have filed timely
protests with Customs pursuant to 19 U.S.C. §1514 which, one could
assume, provide them with some current protective comfort.
Be those protests as they are, this action encompasses
numerous entries that have yet to be liquidated, and which has been
Court No. 05-00444 Page 9
restrained, at least temporarily pending this preliminary opinion.
In seeking to extend this injunctive relief, plaintiffs' argument
with regard to irreparable harm is as follows:
. . . If Customs executes those [ITA] instructions, this
action will become moot, Commerce's instructions will be
insulated from judicial review, and Arcelor will lose its
day in court. "Plainly, irreparable harm will occur
. . . if Commerce's action is not subject to judicial
review; and if plaintiff will be deprived of its right to
contest antidumping duty assessments when the liquidation
of entries currently held by Customs are liquidated."
Royal Business Machs., Inc. v. United States, . . . 1
C.I.T. 24, 25 . . . [1980).
To be sure, Arcelor ha[s] pending protests before
Customs. But "Customs merely follows Commerce's instruc-
tions" and "has a merely ministerial role in liquidating
antidumping duties under 19 U.S.C. §1514(a)(5)." Mitsu-
bishi Elecs. America, Inc. v. United States, 44 F.3d 973,
977 (Fed.Cir. 1994). Where, as here, "Commerce sent
liquidation instructions to Customs, which then imposed
antidumping duties as directed by Commerce as part of its
ministerial functions," Commerce's liquidation instruc-
tions would not be subject to protest and "[t]he court
has no jurisdiction pursuant to [28 U.S.C.] § 1581(a) for
it was Commerce's instructions, rather than an independ-
ent decision by Customs, which determined the antidumping
rate." J.S. Stone Inc. v. United States, 297 F. Supp. 2d
1333, 1338 (CIT 2003).
Plaintiffs' Memorandum, pp. 5-6.
If this position were well-settled, then plaintiffs'
formal protests could prove to be of no conclusive moment. But
this court notes that all that was before the court in the cited
Royal Business Machines matter was purported immediate concern by
that plaintiff that the ITA might come to modify the scope of an
outstanding antidumping-duty order, ergo the court's conditional
Court No. 05-00444 Page 10
language quoted above; and this court also notes that J.S. Stone,
Inc. v. United States, 27 CIT , and 297 F. Supp. 2d 1333, 1338
n. 6 (2003), aff'd, 111 Fed.Appx. 611 (Fed.Cir. 2004), itself cites
Xerox Corp. v. United States,
289 F.3d 792, 795 (Fed.Cir. 2002), as
holding that,
when a plaintiff's goods are facially outside of the
scope of an antidumping duty order, a scope determination
by Commerce and participation in the antidumping review
were unnecessary predicates to a challenge of Customs
imposition of antidumping duties. The Federal Circuit
explained that . . . "the . . . misapplication of the
order by Customs was properly the subject of a protest"
under 19 U.S.C. §1514(a)(2) and reviewable by the CIT
under 28 U.S.C. §1581(a). . . . Thus, misapplication of
an antidumping order or the erroneous imposition of
antidumping duties by Customs may be protested and suit
brought before the court pursuant to § 1581(a).[]
In fact, it was the undersigned's opinion in Xerox Corp. v. United
States, 24 CIT 1145, 118 F. Supp. 2d 1353 (2000), to the opposite
effect that was reversed and remanded by the court of appeals.
Accepting this appellate enlightenment makes it now
difficult to conclude that plaintiffs' procedural posture herein
amounts to unequivocal irreparable harm.
(2)
As for whatever harm is actually at bar, this court can
conclude that it weighs more on the plaintiffs than on either the
defendant or the intervenor-defendants for the reasons so suc-
cinctly stated, to wit:
. . . The government holds cash deposits. If Arcelor
does not succeed on its claims, interested parties are
fully secured.
Court No. 05-00444 Page 11
Plaintiffs' Memorandum, p. 11. Perhaps this is why experienced
counsel for the defendant and also for the intervenors have now
filed papers, consenting, at least for purposes of orderly pro-
ceeding, to entry of a preliminary injunction. On behalf of the
government, they state their
consent . . ., although we dispute that plaintiff[sic]
has established a likelihood of success upon the merits
of plaintiffs' claims. Indeed, in our view, plaintiffs'
claims are wholly without merit, and plaintiffs stand no
chance of prevailing upon the merits. However, a pre-
liminary injunction will prevent the irreparable harm
from liquidation of any entries that have not yet been
liquidated. See Zenith Radio Corp. v. United States, 710
F.2d 806, 810 (Fed.Cir. 1983).
Defendant's Response to Motion for Preliminary Injunction, p. 1.
The other filing states that the
intervenors believe that plaintiffs do not meet any of
the requirements to receive a preliminary injunction.
. . . [Also], it appears that granting a preliminary in-
junction against liquidation of all of the listed entries
may be inappropriate, because it appears that some or all
of the entries for which plaintiffs seek to enjoin
liquidation have already been deemed liquidated as a
matter of law under 19 U.S.C. § 1504(d). The request for
an injunction is not timely made for any entries that
have been liquidated as a matter of law.
Despite these defects in plaintiffs' application,
proposed intervenors conditionally consent to the
granting of a preliminary injunction for purely practical
reasons -- to allow the Government and the parties to
fully research and brief these substantive issues, par-
ticularly concerning the history and liquidation status
of the subject entries. . . .4
4
Intervenor-Defendants' Response to Plaintiffs' Motion for
Preliminary Injunction, pp. 1-2 (emphasis in original).
(footnote continued)
Court No. 05-00444 Page 12
(3)
However salutary the concerns for orderly proceeding (and
even accommodation) are, all who engage in international trade with
the United States, and in subsequent administrative and judicial
review thereof, must adhere, to the best of their respective
situations, to the dictates of the governing law and related rules
of practice. While the court can subscribe to plaintiffs' argument
that the public has a compelling interest in judicial review of
administrative action5, this subscription does not automatically
favor them (or alleviate their perceived predicament6). That is,
it is not clear from the record, such as it has been presented
initially, that the public's interest compels entry now of a pre-
liminary injunction in favor of the plaintiffs.
The court notes in passing that both responses set forth
lists of entries that respective counsel apparently consider at
least arguably at issue. According to the defendant's,
[o]n August 10, 2005, plaintiffs stated that they have
no objection to our amendments to their original pro-
posed preliminary injunction order.
Defendant's Response to Motion for Preliminary Injunction, p. 2.
5
Plaintiffs' Memorandum, p. 11.
6
Cf. id. at 4 n. 2:
. . . [S]ince Arcelor cannot know until after liqui-
dation whether its remedy lies on review of Customs'
protest decision or Commerce's liquidation instruc-
tions, an injunction must be granted now to preserve
this Court's jurisdiction and Arcelor's right to ju-
dicial review.
Court No. 05-00444 Page 13
(4)
Whatever the harm and its precise balance between the
various parties herein may be, this court and others have held that
the severity of the injury the moving party will sustain without
injunctive relief is in inverse proportion to the showing of
likelihood of success on the merits. E.g., Wolverine Tube (Canada),
Inc. v. United States, 23 CIT 76, 78, 36 F. Supp. 2d 410, 413 (1999),
citing Makita Corp. v. United States, 17 CIT 240, 250,
819 F. Supp.
1099, 1108 (1993); Ceramica Regiomontana, S.A. v. United States, 7
CIT 390, 395,
590 F. Supp. 1260, 1264 (1984); American Air Parcel
Forwarding Co. v. United States, 1 CIT 293, 300,
515 F. Supp. 47, 53
(1981).
The plaintiffs claim a "substantial likelihood of suc-
cess" in challenging the ITA's liquidation instructions because
"they are flatly inconsistent with the agency's long-standing
practice and its subsequent determination in this proceeding".7 Of
course, the main issue at bar is whether that determination can be
drawn into "this proceeding". As the complaint itself indicates,
supra, that subsequent determination was rendered as a result of
the ITA's fourth administrative review pursuant to section 751 of
the Trade Agreements Act, 19 U.S.C. §1675, and not during the
preceding three such reviews that covered the entries that are now
subject to plaintiffs' attempt at resurrection -- in the aftermath
7
Id. at 6 (initial capital letters and boldface print of all
the words deleted).
Court No. 05-00444 Page 14
of that fourth ITA review, which led the agency specifically to
determine that its decision apply only to SSPC entries on or after
May 1, 2002, viz.:
In the context of the fourth review, Respondent sub-
mitted information to the record showing that it had sold
German SSPC to the United States. For the final results
of the fourth review of this antidumping duty order, we
determined that SSPC hot-rolled in Germany and not
further cold-rolled in Belgium was not subject to the
antidumping duty order on SSPC from Belgium. . . . As
such, our analysis of Respondent's sales of SSPC to the
United States made during the POR for the fourth review
did not include sales of German SSPC. During the fourth
administrative review, neither the Petitioners nor the
Respondent raised this country of origin issue with re-
spect to any specific sales reviewed during prior
administrative reviews of this order or the effect of the
country of origin decision on unliquidated entries from
prior closed reviews. As articulated in Comment 1 above,
consistent with the Torrington Remand, we find that 1)
our position regarding the German merchandise is fully
articulated and final, 2) we did not calculate antidump-
ing margins using German merchandise in the Fourth
Administrative Review, and 3) the country of origin of
merchandise hot-rolled in Germany was first raised in the
Fourth Administrative Review. Therefore, we recommend
applying our country of origin determination to entries
covered by the fourth review and future entries, i.e.,
to entries made on or after May 1, 2002.8
And CBP was instructed accordingly. See Plaintiffs' Memorandum,
Exhibit 2, para. 3 (July 1, 2005):
Based on the evidence reviewed by Commerce in con-
ducting the administrative review of entries made during
8
Id., Exhibit 6, p. 7 (July 1, 2005)(Memorandum re Customs
Instructions for the Final Results of the Fourth Administrative
Review of the Antidumping Duty Order on . . . SSPC[] from Bel-
gium)(citation to Comment 4 of the ITA Issues and Decision Mem-
orandum of the Fourth Administrative Review of the Antidumping
Duty Order on . . . SSPC[] from Belgium (Dec. 14, 2004), ibid.,
Exhibit 1, available at http://ia.ita.doc.gov/frn/summary/2004-
dec.htm, omitted).
Court No. 05-00444 Page 15
this period (05/01/02-04/30/03), the Department has
determined that imports of SSPC hot rolled in Germany and
not further cold rolled in Belgium are not subject to the
antidumping duty order on SSPC from Belgium. Entries of
this merchandise made on or after 05/01/02 should be
liquidated without regard to antidumping duties.
Capitalization deleted. Compare id. with id., Exhibit 10 (June 23,
2005)(ITA draft liquidation instructions) and id., Exhibit 4, para.
5 (July 18, 2005)(antidumping-duty liquidation instructions for
period 11/4/98 to 4/30/00) and id. Exhibit 5, para. 7 (July 8,
2005)(countervailing-duty liquidation instructions for period
9/4/98 to 12/31/99).
In support of their claim of "substantial likelihood of
success" on the merits, the plaintiffs challenge the agency's
position on two grounds, namely, (a) it is contrary to law, and
(b), because their entries have not been liquidated, administrative
finality does not prevent correction of the country of origin.
(a)
Their complaint, as recited above, is that, for their
entries between September 4, 1998 and April 30, 2002, they "mis-
takenly" declared the country of origin to be Belgium rather than
Germany, whereupon they paid cash deposits of antidumping and
countervailing duties on their merchandise that entered the United
States during those four years as specified in the underlying
orders governing Belgium. Moreover, the plaintiffs claim that
Court No. 05-00444 Page 16
[n]either Arcelor nor Commerce caught the mistake during
the first three administrative reviews of the antidumping
and countervailing duty orders on SSPC from Belgium. The
mistake was identified and corrected in the fourth admin-
istrative review.
Plaintiffs' Memorandum, p. 2. Yet, they seem critical that the
"only pertinent 'evidence' in the [fourth] administrative record
. . . is evidence of the country in which the steel was hot
rolled." Id. at 8. Nonetheless, they refer to other ITA proceed-
ings involving steel wherein that alone was also the determinative
factor for country of origin. Finally, they cite Renesas Technol-
ogy America, Inc. v. United States, 27 CIT , Slip Op. 03-106
(Aug. 18, 2003), to the effect that "liquidation instructions that
treat identical merchandise differently are arbitrary and capri-
cious". Id. But that case, which contested an ITA instruction to
liquidate entries of an unreviewed reseller of such subject mer-
chandise at the cash deposit rate, has been summarily reversed on
appeal, Renesas Technology America, Inc. v. United States, Nos. 04-
1473,-1474, 2005 WL 1540159 (Fed.Cir. July 1, 2005), based upon the
opinion of the same date in Nissei Sangyo America, Ltd. v. United
States, Nos. 04-1469,-1492,
2005 WL 1540161, at *1 (Fed.Cir. July
1, 2005), wherein the court of appeals stated that,
[b]ecause the arguments in favor of the appellee [im-
ports] are foreclosed by the decisions in Consolidated
Bearings Co. v. United States, 348 F.3d 997 (Fed.Cir.
2003) . . ., and Consolidated Bearings Co. v. United
States, [412 F.3d 1266] (Fed.Cir. June 21, 2005) . . .,
which collectively held that an unreviewed reseller is
not statutorily entitled to the manufacturer's review
rate and that Commerce in the past consistently liqui-
Court No. 05-00444 Page 17
dated unreviewed entries from unrelated resellers at the
cash deposit rate, we reverse the decision of the Court
of International Trade.
Emphasis in original.
If this then is the only court case the plaintiffs can
cite, it provides no obvious support for their thesis herein.
(b)
As indicated above, the ITA provided the parties with
draft customs instructions. See Plaintiffs' Memorandum, Exhibit
10. And both sides responded. Compare id., Exhibit 8 with id.,
Exhibit 9. The agency thereupon promulgated the instructions now
at issue. See generally id., Exhibit 6. Among other things, it
referred to and relied on its Final Results of Redetermination on
Remand9 that issued pursuant to the order of the court in Torring-
ton Co. v. United States, 23 CIT 452 (1999), that the ITA apply to
its
Final Scope Ruling - Antidumping Duty Order on Cylindri-
cal Roller Bearings and Parts Thereof from Japan -
Regarding a Certain Cylindrical Roller Bearing Produced
by Koyo Seiko Co., Ltd., and Imported by Koyo Corporation
of U.S.A. (Aug. 10, 1998), an effective date in accord-
ance with the Court's holding in Timken Co. v. United
States, 21 CIT 889, 972 F. Supp. 702 (1997), aff'd sub
nom. Koyo Seiko Co., Ltd. v. United Sates, 155 F.3d 574
(Fed.Cir. 1998).
9
The plaintiffs have reproduced a copy of this redetermina-
tion and appended it to their memorandum as exhibit 7.
Court No. 05-00444 Page 18
Judicial affirmance of those final results in their entirety10 led
to the agency's repetition of the following statement therein in
response to the [plaintiffs'] comments on its draft liquidation
instructions herein:
In Timken, the Court held that unliquidated merchandise
which entered the customs territory of the United States
after the publication of the antidumping duty order, but
before the issuance of the scope ruling, should be li-
quidated in accordance with the antidumping duty order.
The CIT, however, stated that its holding was not
intended to disturb the principles of administrative
finality, i.e., require the re-opening or re-review of
closed proceedings. Thus, while a scope determination
once made is effective back to the publication of the an-
tidumping duty order, the CIT's holding in Timken re-
quires the Department to apply the scope determination
only as far back as the principle of administrative
finality warrants - back to unliquidated entries of sub-
ject merchandise covered by any administrative review
period open at the time the scope issue was first raised,
and to all unliquidated entries on in-scope merchandise
after that period.11
The plaintiffs attempt to undermine this reasoning by
referring to the underlying Timken litigation cited above, but, on
its face, Torrington stands as further refinement of the import of
subsequent rulings as to the precise scope of an antidumping or
countervailing-duty order. Whereupon the plaintiffs add that,
even if this Court were to adopt Commerce's Torrington
redetermination, it would only limit the inclusion of
"subject merchandise covered by any administrative review
period open at the time the scope issue was first
raised." . . . It does not by its terms prevent exclu-
sion of non-subject merchandise - such as German merchan-
10
See Torrington Co. v. United States, 24 CIT 306 (2000).
11
Plaintiffs' Memorandum, Exhibit 6, p. 4 (emphasis added and
citations omitted by ITA herein).
Court No. 05-00444 Page 19
dise from orders covering Belgian merchandise. Since
non-subject merchandise was (by definition) never subject
to the antidumping and countervailing duty orders, en-
tries of such merchandise cannot be liquidated as subject
merchandise. Any instructions to do so would be contrary
to law. As a result, Arcelor has a substantial likeli-
hood of succeeding in its claim that Commerce has no
legal authority to instruct Customs to liquidate German
SSPC as Belgian merchandise.
Plaintiffs' Memorandum, p. 10 (emphasis in original; citation
omitted).
This court cannot concur.
III
In sum, the court cannot and therefore does not conclude
that plaintiffs' instant application satisfies all of the standards
for grant of the extraordinary interim equitable relief that is a
preliminary injunction. Before entry of an order to this effect,
however, the plaintiffs may inform the court and opposing counsel
on or before August 24, 200512, as to how they propose to proceed
from now on in this matter.
So ordered.
Dated: New York, New York
August 17, 2005
Thomas J. Aquilino, Jr.
Senior Judge
12
The court's temporary restraining order is hereby extended
to the close of business on that day.
