Appealed from U.S. Court of International Trade; Judge DiCarlo.
Markey,*fn* Circuit Judge, Friedman, Senior Circuit Judge, and Garrett E. Brown,*fn** District Judge.
FRIEDMAN, Senior Circuit Judge
This is an appeal from a decision of the Court of International Trade denying a preliminary injunction against the liquidation of entries of merchandise covered by an antidumping order that the party seeking the injunction challenged in that court. The Court of International Trade held that the party's failure to seek an annual administrative review of the antidumping order barred the party from obtaining an injunction. The appellant challenges the latter ruling. We hold, however, that developments in the case since the appeal was argued here have made the case moot. We therefore dismiss the appeal.
Because of our disposition of this case, only a brief description of the statutory background and the facts is necessary.
A. The imposition of antidumping duties is based upon (1) a determination by the International Trade Administration (Administration) in the Department of Commerce that foreign goods are being sold in the United States at less than fair value, i.e., being dumped, and (2) a determination by the International Trade Commission (Commission) that such sales injure a United States industry. Following those determinations, the Administration publishes an antidumping duty order specifying the amount of antidumping duties.
Importers are required to "deposit . . . estimated antidumping duties pending liquidation of entries of merchandise . . ." 19 U.S.C. § 1673e(a)(3) (1988). These entries of merchandise "shall be liquidated in accordance with the determination of the [Administration] or the Commission," "unless such liquidation is enjoined by the court . . . ." 19 U.S.C. § 1516a(c)(1) (1988). Once an entry has been liquidated, the duties paid cannot be recovered even if the payor subsequently prevails in its challenge to the antidumping order. Zenith Radio Corp. v. United States, 710 F.2d 806, 809-10 (Fed. Cir. 1983).
Twelve months after the original antidumping order, the Administration must "review, and determine . . . the amount of any antidumping duty" "if a request for such a review has been received." 19 U.S.C. § 1675(a)(1)(B) (1988). This latter review is called the annual review. A Department of Commerce regulation provides that if no request for an annual review has been made, all entries during the annual review period will be liquidated "at rates equal to the cash deposit of, or bond for, estimated antidumping duties." 19 C.F.R. § 353.22(e) (1990).
B. Following the Administration's final determination that brass sheet and strip from Japan had been sold in the United States at less than fair value, Final Determination of Sales at Less Than Fair Value; Brass Sheet and Strip from Japan, 53 Fed. Reg. 23,296 (Admin. June 21, 1988), and the Commission's final determination of material injury or threat thereof to a United States industry, Certain Brass Sheet and Strip From Japan and the Netherlands, 53 Fed. Reg. 29,394 (Comm'n Aug. 4, 1988), the Administration on August 12, 1988 published an antidumping duty order which required a cash deposit of "estimated antidumping duties" on all subsequent entries. Antidumping Duty Order of Sales at Less Than Fair Value; Brass Sheet and Strip From Japan, 53 Fed. Reg. 30,454 (Admin. Aug. 12, 1988).
The appellant Cambridge Lee Industries, Inc. (Cambridge Lee), an importer of the merchandise involved, filed suit in the Court of International Trade in October 1988, challenging the Commission's determination that the dumping injured an American industry. It did not challenge the Administration's determination that the merchandise was sold at less than fair value in the United States.
While proceedings on Cambridge Lee's Motion for Judgment on the Administrative Record were pending before the Court of International Trade, the anniversary date of the antidumping duty order occurred on August 7, 1989. On that date, the Administration published a notice in the Federal Register that within 30 days interested parties could request an administrative review of the antidumping order for the period from August 1, 1988 through July 31, 1989. Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation, Opportunity to Request Administrative Review, 54 Fed. Reg. 32,364 (Admin. Aug. 7, 1989). The notice further stated:
If the Department does not receive by August 31, 1989 a request for review of entries covered by an order or finding listed in this notice and for the period identified above, the Department will instruct the Customs Service to assess antidumping or countervailing duties on those entries at a rate equal to the cash deposit of (or bond for) estimated antidumping or countervailing duties required on those entries at the time of ...