US Rails Against Injunction Bid Over AD Cash Deposits That Exporter Says Threaten Company
Exporter Oman Fasteners has failed to show that paying cash deposits for antidumping duties will cause it immediate and irreparable harm, the U.S. argued in a Jan. 11 brief opposing the exporter's bid for a preliminary injunction against the payment of the cash deposits. The government said that Oman Fastener's bid to suspend collection of the cash deposits "asks for relief far beyond" the usual procedures "such that the United States would have almost no security to cover future duty liability." The exporter also has not shown that it will likely succeed on the merits of the case, the government said (Oman Fasteners v. United States, CIT # 22-00348).
The case concerns the sixth administrative review of the antidumping duty order on steel nails from Oman, covering entries in 2020-2021. In the past five reviews, the exporter said it received a 0.56%, zero, zero, zero and 1.65% dumping margin, respectively. Oman Fasteners was a fully cooperating respondent in the review with the only hang-up coming from the exporter's supplemental Section C questionnaire responses. Part of the response was filed 16 minutes late, resulting in a total adverse facts available rate of 154.33%.
In its complaint and motion for a PI (see 2212280043), Oman Fasteners dubbed the AFA rate "draconian" and said that the company already had to stop all U.S. shipments of its goods subject to the duties, and it will face insolvency unless it can quickly resume U.S. sales and maintain them through the case. The present spat over the injunction motion ensued.
In its response, the government questioned Oman Fasteners' claims that it will be forced to stop its steel nail imports and face bankruptcy, a huge loss of revenue, widespread layoffs and a crippling long-term reduction in business operators. The U.S. said that the injunction motion "must fail" since the respondent "has ignored" the clearly established evidentiary burden for substantiating its claims, only relying on a single affidavit from its own CEO. The company also has failed to show why it cannot avoid all of these consequences through other means "such as obtaining outside financing, raising prices, or drawing on existing assets to pay the increased duties during the pendency of litigation."
The balance of hardships further favors the rejection of the injunction bid since it is in the interest of the entire AD system for the government to collect cash deposits, the government argued. "Fundamentally, any increase in a cash deposit rate is likely to affect the bottom line of a producer or importer; if every importer could obtain an injunction against the statutory cash deposit requirement, it would fundamentally undermine our retrospective statutory scheme," the brief said. "Congress has determined that such security is required, and provided that excess duties collected will be refunded, with interest. ... The public interest is served by maintaining the scheme that Congress has set."
Oman Fasteners also failed to show it will likely succeed, the government said. The U.S. claimed that the plaintiff is effectively asking the court to sub in its judgment for Commerce's over the premises that the exporter failed to show extraordinary circumstances justifying its untimely extension request and late filing and that the company failed to cooperate to the best of its ability by filing its document late. "The Court should decline this invitation, especially at the preliminary injunction stage," the brief said.