2011 WL 182563
Ct. Int'l Trade2011Background
- FYH imported 39 ball bearings and parts from Japan (1994–1995) subject to an antidumping duty order.
- NPB was the manufacturer/exporter with a final antidumping rate of 45.83% in the sixth administrative review.
- Litigation from the NSK/NPB consolidated actions extended for years, with injunctions delaying liquidation of entries.
- A Torrington injunction of liquidation covering all litigants was entered in 1997 and consented to by the Government.
- In 2005, Commerce issued amended final results and issued liquidation instructions; FYH’s entries were liquidated at 45.83% in 2005.
- FYH protested, asserting its entries should be deemed liquidated at the original 7.42% rate six months after NSK decision (2001).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| When did the six-month liquidation clock start under 19 U.S.C. § 1504(d)? | FYH | United States | The clock starts after removal of suspension and notice to Customs; public notice required. |
| Did the Torrington injunction effectively suspend liquidation and affect notice? | FYH | United States | Court found the injunction could be treated flexibly to fulfill parties’ intentions; liquidation timing hinges on effective notice. |
| Was the May 13, 2005 email notice sufficient for starting the six-month period? | FYH | United States | No; non-public, non-publication notice does not trigger start; public notice required. |
| Did the Torrington injunction’s status affect eligibility for deemed liquidation and the proposed amendment to the complaint? | FYH | United States | Injunctions may be amended post hoc to reflect parties’ intentions; the proposed amendment was futile. |
Key Cases Cited
- Fujitsu Gen. Am., Inc. v. United States, 283 F.3d 1364 (Fed. Cir. 2002) (two conditions start 1504(d) period: removal of suspension and notice to Customs)
- Int'l Trading Co. v. United States, 281 F.3d 1268 (Fed. Cir. 2002) (notice must be unambiguous and public)
- Cemex, S.A. v. United States, 384 F.3d 1314 (Fed. Cir. 2004) (public notice requirement reinforced; non-published notice inadequate)
- Agro Dutch Indus. Ltd. v. United States, 589 F.3d 1187 (Fed. Cir. 2009) (consent injunctions can be amended or interpreted to serve justice)
- Clearon Corp. v. United States, 717 F. Supp. 2d 1366 (CIT 2010) (omitted service requirements may be relaxed to fulfill parties’ intentions)
- Ames True Temper v. United States, 700 F. Supp. 2d 1352 (CIT 2010) (distinguished; not controlling on service requirements)
- NSK Ltd. and NSK Corp. v. United States, 25 CIT 1251 (2001) (Court sustained remand results; related to injunctions and liquidations)