CIT Denies Injunction on Liquidation of Entries from China & Vietnam Wind Towers AD/CV Investigations
The Court of International Trade denied the Wind Tower Trade Coalition’s request for preliminary injunction against liquidation of entries of merchandise subject to the antidumping and countervailing duty investigations on utility scale wind towers from China and Vietnam, but made during the provisional measures period. The court had temporarily enjoined liquidation of the entries March 4, because of a pending challenge to the effective date of the AD/CV duty orders resulting from the investigations (see 13030820). Because of the injury vote in the investigations, the orders did not cover entries made between the preliminary determination and the AD/CV duty orders.
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Liquidation of entries of merchandise subject to the investigations had been suspended since the International Trade Administration’s preliminary affirmative determinations. In its final injury vote before the AD/CV duty orders, the International Trade Commission tied three to three on the question of injury, which resulted in an affirmative injury determination. Only two of the three commissioners found actual injury, however. The other affirmative injury vote found a threat of injury, but said that even if there had been no provisional measures imposed -- that is, even if liquidation hadn’t been suspended and cash deposits hadn’t been collected for entries made between the preliminary determinations and the AD/CV duty orders -- actual injury still would not have occurred. Without a determination of actual injury from imports during that period, the ITA in its AD/CV duty orders directed CBP to liquidate entries made during the provisional measures period, and refund cash deposits.
Despite the fact that preliminary injunctions “have become automatic” in AD/CV cases, the court denied the Wind Tower Trade Coalition’s motion. To issue an injunction, one of the four criteria for the court to consider is whether the pending case is likely to succeed. CIT had in its 1992 MBL (USA) Corp. v. United States ruling said that, in a case with an identical injury vote count at the ITC, the ITA could not levy AD/CV duties during the provisional measures period. With such clear precedent, the case was unlikely to succeed, the court said.
(Wind Tower Trade Coal. v. United States, Slip Op. 13-44, dated 03/29/13, Judge Gordon)
(Attorneys: Alan Price of Wiley Rein for plaintiff Wind Tower Trade Coalition; Joshua Kurland for defendant U.S. government; Bruce Mitchell of Grunfeld Desiderio for defendant-intervenor CS Wind Group)