International Fresh Trade Corporation v. United States

OCR transcription for search; preserved printed pages are authoritative

Case 1:14-cv-00213-DCP Document 34 Filed 11/24/14 Page1of18

Slip Op. 14 - 131

UNITED STATES COURT OF INTERNATIONAL TRADE

INTERNATIONAL FRESH TRADE
CORP.,
PUBLIC VERSION
Plaintiff,
Before: Donald C. Pogue,
Vv. Senior Judge
UNITED STATES, Court No. 14-00213
Defendant.

OPINION and ORDER

[preliminary injunction denied]
Dated: November 10, 2014

Robert T. Hume and Carol Wyzinski, Hume & Associates
LLC, of Ojai, CA, for the Plaintiff.

Tara K. Hogan, Senior Trial Counsel, Commercial
Litigation Branch, Civil Division, U.S. Department of Justice,
of Washington, DC, for the Defendant. Also on the brief were
Joyce R. Branda, Acting Assistant Attorney General, Jeanne E.
Davidson, Director, and Patricia M. McCarthy, Assistant
Director. Of counsel was Chi Choy, Attorney, Office of
Assistant Chief Counsel, U.S. Customs and Border Protection, of
New York, NY.

Pogue, Senior Judge: In this action, Plaintiff
International Fresh Trade Corp. (“IFTC”) moves to enjoin U.S.
Customs and Border Protection (“Customs” or “CBP”) from imposing
a single transaction bond requirement on Plaintiff’s entries of
fresh garlic from the People’s Republic of China (“PRC”).

Pl.’s Appl. for a TRO & Mot. for a Prelim. Inj., ECF No. 7

AUTHENTICATED
U.S. GOVERNMENT
INFORMATION

GPO

Court No. 14-00213 	Page 2
(“Pl.’s Br.”), at 1. 	Plaintiff’s entries are subject to an
antidumping duty order (A-570-831). Id. 	Customs’ enhanced bond
requirement would equal Plaintiff’s potential antidumping duty
liability as calculated at the PRC-wide rate ($4.71/kg) rather
than the expected $0.24/kg cash deposit rate otherwise
applicable to Plaintiff’s combination of exporter (Jining
Yongjia Trade Co., Ltd. (“Yongjia”)) and producer (Jinxiang
County Shanfu Frozen Co., Ltd. (“Shanfu”)). Id. at 1-2;
Am. Compl., ECF No. 16, at ¶ 1. 	As Plaintiff has not
established its entitlement to a preliminary injunction, its
motion is denied.
BACKGROUND
In 1994, the U.S. Department of Commerce (“Commerce”)
issued an antidumping duty order on fresh garlic from the PRC
(A-570-831). Fresh Garlic from the [PRC], 59 Fed. Reg. 59,209
(Dep’t Commerce Nov. 16, 1994) (antidumping duty order). 	This
order set the PRC-wide rate at 376.67 percent (which translates
to a cash deposit rate of $4.71/kg). Id. at 59,210; Ex. 3 to
Pl.’s Br. (Undated Port of San Francisco Information Notice),
ECF No. 7-1 (“Information Notice”). 1 	This rate is still in use

1 For further discussion of the calculation of the PRC-wide cash
deposit rate calculation see Fresh Garlic from the [PRC], Issues
& Decision Mem., A-570-831, ARP 06-07 (June 8, 2009) (adopted in
74 Fed. Reg. 29,174 (Dep’t Commerce June 19, 2009) (final
(footnote continued)
Case 1:14-cv-00213-DCP Document 34 Filed 11/24/14 Page 2 of 18

Court No. 14-00213 	Page 3
today. Information Notice, ECF No. 7-1. 	In 2006, Yongjia began
shipping fresh garlic from the PRC to the United States. See
Fresh Garlic from the [PRC], 73 Fed. Reg. 56,550, 56,552 (Dep’t
Commerce Sept. 29, 2008) (final results and rescission, in part,
of twelfth new shipper reviews) (“Twelfth NSR”). 	Yongjia
requested a new shipper rate (“NSR”) from Commerce, and,
following investigation, was granted a combination rate with its
producer, Shanfu, 2 of 18.88 percent (which translates to a cash
deposit rate of $0.24/kg) (“Yongjia/Shanfu NSR”). Id.; App. to
Mem. Supp. Def.’s Opp’n to [Pl.’s Appl.] for TRO & [Mot.] for
Prelim. Inj. (“Def.’s App.”) (CBP Cash Deposit Instructions for
Fresh Garlic from China, A-570-831 (Oct. 15, 2008)), ECF No.
24-1, at A4. 3 	Yongjia did not export fresh garlic to the United
States again until 2014, 4 with Plaintiff as importer. Ex. 4 to

results and partial rescission of the 13th antidumping duty
administrative review and new shipper reviews)) cmt. 8 at 31-32.
2 A combination rate is a rate that applies only to a specific
combination of producer and exporter. See 19 C.F.R. §
351.107(b)(1) (2014).
3 See also Pl.’s Br., ECF No. 7, at 3, 4.
4 For administrative reviews in which Yongjia timely certified it
had no shipments during the period of review, see Fresh Garlic
from the [PRC], 75 Fed. Reg. 34,976, 34,977 (Dep’t Commerce June
21, 2010) (final results and partial rescission of the 14th
antidumping duty administrative review); Fresh Garlic from the
[PRC], 76 Fed. Reg. 37,321, 37,323 (Dep’t Commerce June 27,
2011) (final results and final rescission, in part, of the 2008-
2009 antidumping duty administrative review); Fresh Garlic from
the [PRC], 77 Fed. Reg. 11,486, 11,489 (Dep’t Commerce February
(footnote continued)
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Court No. 14-00213 	Page 4
Pl.’s Br. (Decl. of Hung Nam Huynh, Vice President of IFTC), ECF
No. 7-1 (“Huynh Decl.”), at ¶¶ 4-6. 	Because of what appeared to
be discrepant information in the imports’ phytosanitary
certificates, Customs requested further documentation to verify
the identity of the producer and shipper of the entries. Def’s
App. (Decl. of Marc Dolor, Senior Import Specialist, Area Port
of San Francisco, CBP), ECF No. 24-1 at A83 (“Dolor Decl.”), at
¶¶ 6-16. 	The documents indicated that the producer, Shanfu, had
undergone changes, including restructuring, that potentially
rendered it a different entity and ineligible for the
Yongjia/Shanfu NSR. Id. at ¶¶ 18-21; Def’s App. (Decl. of
Richard J. Edert, International Trade Specialist, National
Targeting and Analysis Group, Office of International Trade,
CBP), ECF No. 24-1 at A72 (“Edert Decl.”), at ¶¶ 8-9. 	Because
of this uncertainty, Customs has denied entry until Plaintiff
posts additional bonding to make its cash deposit rate
commensurate with its potential antidumping duty liability (the
$4.71/kg PRC-wide rate). Dolor Decl., ECF No 24-1 at A83, at

27, 2012) (partial final results and partial final rescission of
the 2009-2010 administrative review); Fresh Garlic from the
[PRC], 78 Fed. Reg. 36,168, 36,170 (Dep’t Commerce June 17,
2013) (final results of antidumping administrative review; 2010-
2011); Fresh Garlic from the [PRC], 79 Fed. Reg. 36,721, 36,724
(Dep’t Commerce June 30, 2014) (final results and partial
rescission of the 18th antidumping duty administrative review;
2011-2012).
Case 1:14-cv-00213-DCP Document 34 Filed 11/24/14 Page 4 of 18

Court No. 14-00213 	Page 5
¶ 22; Edert Decl., ECF No. 24-1 at A72, at ¶ 10; Information
Notice, ECF No. 7-1 at Ex. 3 (providing Plaintiff with notice
that “[t]o ensure entries are filed correctly and to protect
[the] revenue [of the United States],” Customs may require that
the importer provide an “additional single transaction bond [for
each entry] to cover antidumping duties” at the PRC-wide rate of
$4.71/kg). 	Plaintiff challenges this determination as arbitrary
and capricious, asserting jurisdiction under 28 U.S.C. § 1581(i)
(2012). 5 See Pl.’s Br., ECF No. 7, at 1; Am. Compl., ECF No. 16.
Plaintiff sought a temporary restraining order (“TRO”)
and preliminary injunction to prevent Customs from imposing the
heightened bonding requirement. Pl.’s Br., ECF No. 7, at 1. 	The
court held an evidentiary hearing on October 1, 2014, see
Hr’g, ECF No. 29, and subsequently denied Plaintiff’s request
for a TRO, Conf. Tr. of Hr’g, ECF No. 31, at 64:15-16.
DISCUSSION
“A preliminary injunction is an extraordinary remedy
never awarded as of right.” Winter v. Natural Res. Def. Council,
Inc., 555 U.S. 7, 24 (2008) (citation omitted). 	To obtain a
preliminary injunction, the Plaintiff must establish that (1) it
is likely to suffer irreparable harm without a preliminary
injunction, (2) it is likely to succeed on the merits, (3) the

5 All further citations to the U.S. Code are to the 2012 edition.
Case 1:14-cv-00213-DCP Document 34 Filed 11/24/14 Page 5 of 18

Court No. 14-00213 	Page 6
balance of the equities favors the Plaintiff, and (4) the
injunction is in the public interest. Id. at 20; Zenith Radio
Corp. v. United States, 710 F.2d 806, 809 (Fed. Cir. 1983). 	No
one factor is dispositive, FMC Corp. v. United States, 3 F.3d
424, 427 (Fed. Cir. 1993), but likelihood of success and
irreparable harm are “[c]entral to the [Plaintiff’s] burden.”
Sofamor Danek Grp., Inc. v. DePuy-Motech, Inc., 74 F.3d 1216,
1219 (Fed. Cir. 1996). 	The court evaluates a request for a
preliminary injunction on a “sliding scale” — “the more the
balance of irreparable harm inclines in the plaintiff’s favor,
the smaller the likelihood of prevailing on the merits [it] need
show” to get the injunction. Qingdao Taifa Grp. Co. v. United
States, 581 F.3d 1375, 1378-79 (Fed. Cir. 2009) (quotation marks
and citation omitted).
I. 	Plaintiff Has Not Established a Clear Threat of Irreparable
Harm.
“Plaintiff bears an extremely heavy burden” to
establish irreparable harm. Shandong Huarong Gen. Grp. Corp. v.
United States, 24 CIT 1279, 1282, 122 F. Supp. 2d 1367, 1369
(2000) (citation omitted). 	Harm is only irreparable when there
is no adequate remedy at law, see Morales v. Trans World
Airlines, Inc., 504 U.S. 374, 381 (1992), when “no damages
payment, however great,” can address it, Celsis In Vitro, Inc.
v. CellzDirect, Inc., 664 F.3d 922, 930 (Fed. Cir. 2012)
Case 1:14-cv-00213-DCP Document 34 Filed 11/24/14 Page 6 of 18

Court No. 14-00213 	Page 7
(citations omitted). 	Further, the threat of irreparable harm
must be immediate and viable — “[a] preliminary injunction will
not issue simply to prevent a mere possibility of injury, even
where prospective injury is great.” Zenith Radio, 710 F.2d at
809 (quotation marks and citation omitted). 6 	Plaintiff has not
met this burden.
Plaintiff alleges inability to pay the required cash
deposit, 7 and, in the absence of a preliminary injunction,
continued denied entry, mounting demurrage and storage charges, 8
loss of reputation amongst customers (including threatened

6 See also Winter, 555 U.S. at 22 (holding that movant must
“demonstrate that irreparable injury is likely in the absence of
an injunction”) (emphasis in original) (citations omitted)).
7 Plaintiff has not offered evidence that it tried to obtain a
single transaction bond in lieu of paying the full cash deposit.
Normally, an importer can obtain a single transaction bond from
a surety for a small percentage of the bond value. See Mem.
Supp. Def.’s Opp’n to [Pls.’ Appl.] for TRO & [Mot.] for Prelim.
Inj., ECF Nos. 19 (pub. version) & 24 (conf. version) (“Def.’s
Br.”), at 16; [Def.’s] Resp. to Ct.’s Req., Sept. 30, 2014, ECF
No. 25, at ¶ 1. 	However, it seems that given the level of risk
in this industry at this time, bonds are only available for full
collateral. See Kwo Lee, Inc. v. United States, Slip Op. 14-121,
2014 WL 5369391, at *3 (Oct. 16, 2014). 	Accordingly, IFTC’s
claimed inability to pay the cash deposit rate suggests an equal
inability to obtain the requisite bonding.
8Demurrage is, inter alia, “[a] charge due for the late return
of ocean containers or other equipment.” Black’s Law Dictionary
526 (10th ed. 2014). 	Plaintiff lists the other storage charges
as “per diem charges, monitoring of the refrigeration units,
[and] the expense of fuel or plug in charges.” Add. Decl. of
Hung Nam Huynh, Vice President of IFTC, ECF Nos. 10 & 10-1
(“Add. Huynh Decl.”), at ¶ 12.
Case 1:14-cv-00213-DCP Document 34 Filed 11/24/14 Page 7 of 18

Court No. 14-00213 	Page 8
litigation for failure to deliver), financial inability to re-
export, and loss of the imports themselves (as the garlic is
spoiling pending release). Huynh Decl., ECF No. 7-1 at Ex. 4, at
¶¶ 10-13; Add. Huynh Decl., ECF Nos. 10 & 10-1, at ¶¶ 6-9,
11-13. 	All this, Plaintiff claims, threatens to “virtually put
both the [Plaintiff] and [Yongjia] out of business.” Add. Huynh
Decl., ECF Nos. 10 & 10-1, at ¶ 9. 	While these harms are
potentially irreparable, 9 Plaintiff has failed to prove that they
are immediate and viable: Plaintiff’s evidence on irreparable
harm consists solely of two affidavits from its vice president.
Huynh Decl., ECF No. 7-1 at Ex. 4; Add. Huynh Decl., ECF Nos. 10
& 10-1. 	Without more, affidavits from interested parties may be

9 Financial loss alone is not irreparable, Sampson v. Murray, 415
U.S. 61, 90 (1974), but “[p]rice erosion, loss of goodwill,
damage to reputation, and loss of business opportunities” are
irreparable. Celsis In Vitro, 664 F.3d at 930 (citations
omitted); CPC Int’l, Inc. v. United States, 19 CIT 978, 979, 896
F. Supp. 1240, 1243 (1995) (Irreparable harm occurs where
“compliance with a ruling of Customs . . . would cause the
importer to incur costs, expenditures, business disruption or
other financial losses, for which the importer has no legal
redress to recover in court, even if the importer ultimately
prevails on the merits in contesting the ruling.”). 	Bankruptcy
is an irreparable harm because, in addition to the obvious
economic injury, loss of business renders a final judgment
useless, depriving the movant of effective and meaningful
judicial review. Doran v. Salem Inn, Inc., 422 U.S. 922, 932
(1975); Queen’s Flowers de Colombia v. United States, 20 CIT
1122, 1127, 947 F. Supp. 503, 507 (1996); McAfee v. United
States, 3 CIT 20, 24, 531 F. Supp. 177, 179 (1982) (“It is
difficult for this court to envision any irreparable damage to a
plaintiff and his business more deserving of equitable relief
than the [very] loss of the business itself.”).
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Court No. 14-00213 	Page 9
considered “weak evidence, unlikely to justify a preliminary
injunction.” Shree Rama Enters. v. United States, 21 CIT 1165,
1167, 983 F. Supp. 192, 195 (1997). 10 	Plaintiff has produced
neither independent evidence nor witnesses for cross examination
to support its affidavits. 	Plaintiff also has not provided
financial statements to prove lack of necessary capital
reserves, and Plaintiff has not shown that it sought and was
denied financing to meet its enhanced bonding obligations. See
Shandong Huarong, 24 CIT at 1290-91, 122 F. Supp. 2d at 147
(citing Chilean Nitrate Corp. v. United States, 11 CIT 538, 541
(1987) (not reported in the Federal Supplement). 11 	Further,
Plaintiff has failed to adequately explain why it did not use
the available and appropriate administrative remedy – a
Department of Commerce changed circumstances review, see infra
Section II — to address the matter raised here. 	Accordingly,

10 See also Atari Games Corp. v. Nintendo of Am., Inc., 897 F.2d
1572, 1575 (Fed. Cir. 1990) (“As general rule, a preliminary
injunction should not issue on the basis of affidavits alone.”
(citations omitted)).
11 Cf. Companhia Brasileira Carbureto de Calcio v. United States,
18 CIT 215, 217 (1994) (not reported in the Federal Supplement)
(finding insufficient showing of irreparable harm where “[n]o
hard evidence was submitted to the court indicating what
specific effect loss of [sales] would have upon [movant]”).
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Court No. 14-00213 	Page 10
Plaintiff has not established a clear threat of irreparable
harm. 12
II. 	Plaintiff Has Not Established a Sufficient Likelihood of
Success on the Merits.
Even assuming, arguendo, that Plaintiff had produced
the requisite evidence to make a strong showing of irreparable
harm, it would still need to establish some chance of success on
the merits, FMC Corp., 3 F.3d at 427, by raising, at the very
least, questions that are “serious, substantial, difficult and
doubtful.” Timken Co. v. United States, 6 CIT 76, 80, 569 F.
Supp. 65, 70 (1983) (internal quotation marks and citations
omitted). 	Plaintiff has not done so here.
On the merits, Plaintiff challenges Customs’
determination that it must provide enhanced bonding. Am. Compl.,
ECF No. 16, at ¶ 1. 	Plaintiff again faces a high burden.
Customs has broad authority to protect the revenue of the United
States, see 19 U.S.C. § 1623, and has promulgated extensive
bonding regulations, following notice and comment rule making,
pursuant to that authority. See Customs Bond Structure;

12 See Shree Rama, 21 CIT at 1167-68, 983 F. Supp. at 195 (“If
the court were to grant plaintiffs’ motion on so little
documentary evidence, it would essentially be holding that any
substantial increase in deposit rates before a final court
decision constitutes irreparable harm per se. Future petitioners
would be able to forestall the application of new deposit rates
in many, if not most, antidumping or countervailing duty
determinations contested in court.”).
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Court No. 14-00213 	Page 11
Revision, 49 Fed. Reg. 41,152 (Oct. 19, 1984); 19 C.F.R. Ch. I,
Pt. 113. 	This includes 19 C.F.R. § 113.13(d) (2014), which
allows for enhanced bonding determinations. 	The court will only
set aside Customs’ enhanced bonding determination if the
agency’s decision is arbitrary and capricious. 5 U.S.C. §
706(2)(A). 13 	Arbitrary and capricious is a narrow standard of
review: “The court is not empowered to substitute its judgment
for that of the agency,” Citizens to Pres. Overton Park, Inc. v.
Volpe, 401 U.S. 402, 416 (1971), but rather ensures that Customs
has “articulate[d] a rational connection between the facts found
and the choice made,” Bowman Transp., Inc. v. Ark.-Best Freight
Sys., Inc., 419 U.S. 281, 285 (1974) (internal quotation marks
and citation omitted).
Plaintiff argues that Customs’ enhanced bonding
determination is arbitrary and capricious because it applies the
PRC-wide rate, rather than the Yongjia/Shanfu NSR, when Customs
has “provided no evidence and made no claims that Yongjia and/or
its supplier were not independent of Chinese government control
or were subject to the [adverse facts available] rate.” Pl.’s
Br., ECF No. 7, at 6. 	This argument misapprehends the facts
found and choices made, obfuscating an otherwise rational

13 The court reviews actions brought under 28 U.S.C. § 1581(i)
(such as here) as provided in the Administrative Procedures Act,
5 U.S.C. § 706. See 28 U.S.C. § 2640(e).
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Court No. 14-00213 	Page 12
connection between the two. 	Under 19 C.F.R. § 113.13(d),
Customs can require additional security equal to an importer’s
potential antidumping duty liability. Nat’l Fisheries Inst.,
Inc. v. U.S. Bureau of Customs & Border Prot., 33 CIT 1137,
1160, 637 F. Supp. 2d 1270, 1291 (2009). 	While Yongjia and
Shanfu do have an NSR, Twelfth NSR, 73 Fed. Reg. at 56,552, it
is a combination rate and only applies to the specified
producer/exporter together. See 19 C.F.R. § 351.107(b)(1).
Otherwise, the PRC-wide rate applies. See Twelfth NSR, 73 Fed.
Reg. at 56,552. 	Customs, considering evidence that Shanfu
underwent changes that, for antidumping duty purposes,
potentially rendered the company a different entity (Shanfu
LLC), 14 determined that it could not verify Shanfu’s identity.

14 These changes include a restructuring as the business had a
[[
]], and a change in
name (however minor), as well as changes in [[
]]. Ex. I to Dolor Decl. (Letter
from Robert T. Hume, Counsel to Yongjia and Plaintiff, to Marc
Dolor, Senior Import Specialist, Port of San Francisco, CBP
(August 27, 2014)), ECF No. 24-1 at A191 (“Hume Letter”), at
A194-96 (providing Shanfu’s company history); Supp. App to
Def.’s Br., ECF Nos. 26 (conf. version) & 32 (pub. version)
(providing the exhibits submitted with the Hume Letter by
Yongjia to Customs, including business documents (with
translations) evidencing the changes to Shanfu); see also Edert
Decl., ECF No. 24-1 at A72, at ¶ 8; Ex. B to Edert Decl., ECF
No. 24-1 at A79 (annotated screen captures of PRC government
website indicating changes to Shanfu); Dolor Decl., ECF No. 24-1
(footnote continued)
Case 1:14-cv-00213-DCP Document 34 Filed 11/24/14 Page 12 of 18

Court No. 14-00213 	Page 13
Dolor Decl., ECF No. 24-1 at A83, ¶¶ 16-18. 	Accordingly, it
applied the Yongjia/unknown producer rate (the PRC-wide rate)
and required bonding equal to Plaintiff’s potential antidumping
duty liability. Id. at ¶ 21-22; Edert Decl., ECF No 24-1 at A73,
¶¶ 6-10; Information Notice, ECF No. 7-1 at Ex. 3. 	It made no
determination, nor did it need to, regarding Chinese government
control or the applicability of the PRC-wide rate to Shanfu.
Plaintiff also argues that it provided Customs with
evidence that the present Shanfu LLC was effectively the same
entity as the NSR Shanfu and, therefore, is its successor-in-
interest. [Pl.’s] Mem. Concerning Changes to the Producer of
Pl.’s Fresh Garlic, ECF No. 27 (“Pl.’s Mem. re Changes”),
at 3-6. 	Regardless of the strength of this evidence, this is
not Customs’ decision to make. 	Customs cannot make substantive
determinations under the antidumping duty laws. 	Its role is
purely ministerial. Reorganization Plan No. 3 of 1979, 44 Fed.
Reg. 69,273, 69,274-75 (Dec. 3, 1979) (announcing transfer from
Customs to Commerce of, inter alia, all substantive functions
under 19 U.S.C. §§ 1671 et seq.), effective under Exec. Order
No. 12,188 of January 2, 1980, 45 Fed. Reg. 989, 993 (1980).

at A83, at ¶¶ 16-18, 23; Ex. F to Dolor Decl. (Email from Nick
Hong to Marc Dolor), ECF No. 24-1 at A122 (with attached
documents, providing additional evidence of changes); Decl. of
Wang Hua (Shanfu’s general manager), ECF No. 30, at ¶¶ 2-6
(discussing changes to Shanfu).
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Court No. 14-00213 	Page 14
Rather, Commerce makes such determinations. 19 U.S.C § 1675(b)
(providing for changed circumstances review). 	Plaintiff further
argues that the changes to Shanfu were so insignificant as not
to require a substantive determination. Pl.’s Mem. re Changes,
ECF No. 27, at 2-3. 	However, Commerce routinely uses changed
circumstances review to make successor-in-interest
determinations address changes comparable to those evidenced for
Shanfu — including renaming and restructuring. 15

15 For examples within this antidumping duty order (A-570-831),
see Fresh Garlic from the [PRC], 79 Fed. Reg. 63,381 (Dep’t
Commerce) (Oct. 23, 2014) (initiation of changed circumstances
review (“CCR”)) (initiation of CCR to make successor-in-interest
determination after name change of garlic producer/exporter);
Fresh Garlic from the [PRC], 69 Fed. Reg. 58,892 (Dep’t Commerce
Oct. 1, 2004) (notice of final results of antidumping duty CCR)
(granting successor-in-interest status following a CCR for a
name change). 	For further examples, see Certain Lined Paper
Products from India, 79 Fed. Reg. 35,726 (Dep’t Commerce June
24, 2014) (final results of CCR) (granting successor-in-interest
status after CCR for name change); Certain Lined Paper Products
from India, 79 Fed. Reg. 40,709 (Dep’t Commerce July 14, 2014)
(initiation and preliminary results of antidumping duty CCR)
(preliminary grant of successor-in-interest status after CCR for
a merger); Certain Frozen Warmwater Shrimp from Thailand, 74
Fed. Reg. 52,452 (Dep’t Commerce Oct. 13, 2009) (final results
of antidumping duty CCR and notice of revocation in part)
(granting successor-in-interest status after CCR for
acquisition); Brake Rotors from the [PRC], 70 Fed. Reg. 69,941
(Dep’t Commerce Nov. 18, 2005) (final results of CCR) (granting
successor-in-interest status following CCR); Polychloroprene
Rubber from Japan, 69 Fed. Reg. 67,890 (Dep’t Commerce Nov. 22,
2004) (notice of final results of antidumping duty CCR) (denying
successor-in-interest status following CCR); Polychloroprene
Rubber from Japan, 67 Fed. Reg. 58 (Dep’t Commerce Jan. 2, 2002)
(notice of final results of CCR) (granting successor-in-interest
status following CCR for restructuring and renaming); Industrial
Phosphoric Acid from Israel, 59 Fed. Reg. 6944 (Dep’t Commerce
(footnote continued)
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Court No. 14-00213 	Page 15
Plaintiff, therefore, has failed to raise a serious or
substantial question that suggests Customs’ determination was
arbitrary and capricious, and has therefore failed to establish
its likelihood of success on the merits.
III. 	The Balance of the Equities Does Not Favor the Plaintiff.
Before granting a preliminary injunction, the court
“must balance the competing claims of injury and must consider
the effect” that granting or denying relief will have on each
party. Winter, 555 U.S. at 24 (internal quotation marks and
citation omitted). 	Here, Plaintiff alleges that denying a
preliminary injunction will cause it substantial economic
injury, including possible bankruptcy, but fails to provide
sufficient evidence to establish a viable threat of that
irreparable harm. 16 	Customs, meanwhile, alleges that granting a
preliminary injunction will threaten substantial economic injury
in the form of lost revenue to the United States. See Def.’s
Br., ECF No. 19, at 31; 19 U.S.C. § 1623. 	As Plaintiff has not
established irreparable harm and Customs claims an at least
comparable economic injury, the balance of the equities cannot
be said to favor either (and therefore does not favor the

Feb. 14, 1994) (final results of CCR) (granting successor-in-
interest status following CCR).
16 See discussion supra Section I.
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Court No. 14-00213 	Page 16
Plaintiff). 17
IV. 	Granting the Plaintiff a Preliminary Injunction Does Not
Serve the Public Interest.
The court “should pay particular regard for the public
consequences” when “employing the extraordinary remedy of
injunction.” Winter, 555 U.S. at 24 (internal quotation marks
and citations omitted). 	Here, the public has a strong interest
in protecting the revenue of the United States and in assuring
compliance with the trade laws. See 19 U.S.C. § 1623. 	Enhanced
bonding pending litigation serves both these interests.
Additional security covers potential liabilities and protects
against default, ensuring the correct antidumping duty is paid. 18
Cf. Shandong Huarong, 24 CIT at 1286, 122 F. Supp. 2d at 1372
(“The public has an interest in ensuring the fair application of

17 See Olympia Indus., Inc. v. United States, 30 CIT 12, 19
(2006) (not reported in the Federal Supplement) (finding that
“because both parties face hardship should their arguments with
respect to the issuance of an injunction not succeed, the
balance of hardships does not aid plaintiff”).
18 “[T]he United States uses a ‘retrospective’ assessment system
under which final liability for antidumping and countervailing
duties is determined after merchandise is imported.” 19 C.F.R. §
351.212. 	At entry, importers make a cash deposit of the
estimated antidumping duties, id. at 351.211(b)(2), but if, as
here, the antidumping duty rate is challenged by an interested
party, the final antidumping duty rate (and thus amount owed)
will be assessed pursuant to an administrative review, id. at
§§ 351.213, 351.211(b)(1), or, if appealed to this Court,
assessed according to the final decision in the action,
19 U.S.C. § 1516a(e)(2).
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Court No. 14-00213 	Page 17
the antidumping laws while simultaneously guaranteeing foreign
exporters will not default in the satisfaction of their import
obligations.”).
Plaintiff argues that a preliminary injunction serves
the public interest because it ensures the “proper and equitable
enforcement of the trade laws, ensuring the correct antidumping
duties are collected.” Pl.’s Br., ECF No. 7, at 10 (citation
omitted). 	While the public interest is served by the accurate
and effective, uniform and fair enforcement of trade laws, Union
Steel v. United States, 33 CIT 614, 622, 617 F. Supp. 2d 1373,
1381 (2009); Ceramica Regiomontana, S.A. v. United States, 7 CIT
390, 397, 590 F. Supp. 1260, 1265 (1984), use of available
administrative remedies is an essential premise of this
enforcement, see 28 U.S.C. § 2637 (requiring, with limited
exception, exhaustion of administrative remedies before an
action may be commenced before this Court). 	Moreover, the court
“endeavor[s] to ensure these ends whether an injunction is in
place or not.” Olympia Indus., 30 CIT at 18. 	Accordingly,
granting Plaintiff’s preliminary injunction does not serve the
public interest.
CONCLUSION
Plaintiff has not demonstrated entitlement to a
preliminary injunction. 	Plaintiff has not established
irreparable harm or likelihood of success on the merits, and the
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Court No. 14-00213 	Page 18
balance of equities and public interest do not favor the
Plaintiff. 	Accordingly, Plaintiff’s motion is DENIED.
/s/ Donald C. Pogue
Donald C. Pogue, Senior Judge
Dated: November 10, 2014
New York, NY
Case 1:14-cv-00213-DCP Document 34 Filed 11/24/14 Page 18 of 18