China/Vietnam Wind Towers: Restraining Order Stops Liquidation of Entries Made Before AD/CV Orders
The International Trade Administration ordered CBP to reinstate suspension of liquidation for unliquidated entries of utility scale wind towers from China and Vietnam made between the preliminary determinations and the antidumping and countervailing duty orders, pursuant to a March 4 Court of International Trade temporary restraining order. The ITA had originally ordered CBP to terminate suspension of liquidation and refund cash deposits for entries prior to the AD/CV duty orders because of the International Trade Commission’s injury vote, which according to the ITA did not find actual injury to U.S. industry before issuance of the orders. But based on a request for preliminary injunction from the Wind Tower Trade Coalition, CIT reluctantly issued the temporary restraining order while it awaits a response to the request from the government.
Sign up for a free preview to unlock the rest of this article
If your job depends on informed compliance, you need International Trade Today. Delivered every business day and available any time online, only International Trade Today helps you stay current on the increasingly complex international trade regulatory environment.
The ITA issued on Feb. 12 its AD duty orders on utility scale wind towers from China (A-570-981) and Vietnam (A-552-814), and its CV duty order on utility scale wind towers from China (C-570-982). In the orders, the ITA said it was directing CBP to terminate suspension of liquidation of subject merchandise entered between the preliminary determination and AD/CV duty orders, and refund cash deposits. The ITA’s decision was based on the ITC’s injury vote. Two commissioners had found material injury, one commissioner had found the threat of injury, and three commissioners had found no injury. The tie went to the injury voters, so AD/CV duty orders were issued. But because the majority did not find actual injury during the provisional measures period between the preliminary determinations and the orders, the ITA said it couldn’t collect AD/CV duties during that period.
The Wind Tower Trade Coalition filed suit shortly thereafter, arguing that the majority of the majority is controlling. According to the coalition, the majority of the injury voters found actual injury, so the vote should have been interpreted as an actual injury determination.
CIT was skeptical of the coalition’s arguments, pointing to a court decision from 1992 that found the ITA could not collect AD/CV duties during the provisional measures period in a case with an identical ITC injury vote pattern. Noting that requests for injunctions must show the challenge has a chance of success, CIT said it was “concerned that there appears to be a certainty of failure,” and denied the request. But after the coalition amended its complaint, a still-skeptical CIT granted a temporary restraining order enjoining liquidation March 4, citing the need to hear the government’s arguments to the contrary.
The ITA subsequently issued instructions to CBP, now available on CBP’s ADDCVD database of AD/CV messages at www.addcvd.cbp.gov (here). The messages enjoined liquidation of entries that were unliquidated as of 5 p.m. on March 4 for which entry was made between the preliminary determination and AD/CV duty order, as follows:
- Message # 3066301 -- Entries subject to the CV duty order on wind towers from China made June 6, 2012 through Feb. 12, 2013
- Message # 3066306 -- Entries subject to the AD duty order on wind towers from China made Aug. 2, 2012 through Feb. 12, 2013
- Message # 3064307 -- Entries subject to the AD duty order on wind towers from Vietnam made Aug. 2, 2012 through Feb. 12, 2013
(See ITT's Online Archives 13021420 and 13021421 for summaries of the AD and CV duty orders on wind towers from China, respectively, and 13021426 for summary of the AD duty order on wind towers from Vietnam.)
Email ITTNews@warren-news.com for documents related to this report, including the coalition's request for preliminary injunction, the CIT orders first denying and then granting the temporary restraining orders, and the coalition's brief on liquidation of entries during the provisional measures period during the AD/CV investigations.