                          Slip Op. 09-23

           UNITED STATES COURT OF INTERNATIONAL TRADE

______________________________
                              :
SINCE HARDWARE (GUANGZHOU)    :
CO., LTD.,                    :
                              :
               Plaintiff,     :
                              :
     v.                       :   Court No. 09-00123
                              :
                              :
UNITED STATES,                :
                              :
               Defendant,     :
                              :
     and                      :
                              :
HOME PRODUCTS INTERNATIONAL, :
LTD.,                         :
                              :
               Def.-Ints.     :
______________________________:

                         OPINION AND ORDER

[Plaintiff’s motion for preliminary injunction granted.]

                                             Dated: March 27, 2009


     Law Offices of Vincent Bowen (Vincent Bowen) for plaintiff.

     Michael F. Hertz, Acting Assistant Attorney General; Jeanne
E. Davidson, Director, Franklin E. White, Jr., Assistant
Director, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice (David S. Silverbrand) for defendant.

     Blank Rome LLP (Frederick L. Ikenson) for defendant-
intervenor.


     Eaton, Judge:   Before the court is plaintiff’s motion for a

preliminary injunction, to which defendant consents, together

with defendant-intervenor’s opposition to plaintiff’s motion, and
Court No. 09-00123                                         Page 2

plaintiff’s reply to defendant-intervenor’s opposition.     For the

reasons that follow, the court grants plaintiff’s motion.

     Defendant-intervenor’s primary argument is that plaintiff

will not suffer irreparable harm if a preliminary injunction does

not issue.    In support of this claim, defendant-intervenor argues

that plaintiff is a foreign manufacturer, and, because foreign

manufacturers pay no duties, they “are in a completely different

position [from importers]: they do not stand to be irreparably

injured by the liquidation of importers’ past entries and they

are not entitled to receive the exceptional injunctive relief

afforded by the Zenith decision.”    Def.-Int.’s Opp. 9 (citing

Zenith Radio Corp. v. United States, 710 F.2d 806 (Fed. Cir.

1983)).    The only other significant issue raised by defendant-

intervenor is that plaintiff has a low likelihood of success on

the merits, which “cannot be ignored” where, as is alleged here,

there is not a strong case of irreparable injury.    Def.-Int.’s

Opp. 13.

     This Court has recently considered arguments identical to

those presented by defendant-intervenor.    See Qingdao Taifa Group

Co. v. United States, 32 CIT __, Slip Op. 08-118 (Nov. 4, 2008)

(not reported in the Federal Supplement) (“Qingdao Taifa”).       In

denying a motion to set aside an injunction against liquidation,

the Qingdao Taifa Court found:

            No extraordinary showing of irreparable harm
            is required to obtain the injunction sought
Court No. 09-00123                                        Page 3

          here. It has long been established that
          liquidation of entries after a final
          determination of duties for a particular
          period, before the merits can be litigated,
          is sufficient harm. See Zenith Radio Corp.
          v. United States, 710 F.2d 806, 810 (Fed.
          Cir. 1983) (granting domestic producer
          injunction of liquidation during challenge to
          periodic review determination). Also, one
          need not be an importer to seek relief under
          19 U.S.C. § 1516a(c)(3). See id. at 811.
          Competitive concerns of the domestic producer
          were one of the determining factors in
          Zenith. See id. at 810-11. Competition is
          no less a concern for a foreign producer or
          exporter than it is for a domestic producer.
          Therefore, Gleason’s argument based on
          Taifa’s lack of its own imports is of no
          consequence and, as a legal matter, Taifa has
          established irreparable harm.

Qingdao Taifa, 32 CIT at __, Slip Op. 08-118 at 3.

     Based on the reasoning in Qingdao Taifa, defendant-

intervenor’s argument with respect to plaintiff’s inability to

establish irreparable harm because of its status as a foreign

manufacturer fails.

     With regard to defendant-intervenor’s likelihood of success

on the merits argument, it is well settled that “[t]he greater

the harm to the moving party, the lower the standard will be.”

Ugine-Savoie Imphy v. United States, 24 CIT 1246, 1251, 121 F.

Supp. 2d 684, 689 (2000) (citation omitted).   It has also “long

been established that liquidation of entries after a final

determination of duties for a particular period, before the

merits can be litigated, is sufficient harm” for the entry of a

preliminary injunction.   See Qingdao Taifa, 32 CIT at __, Slip
Court No. 09-00123                                         Page 4

Op. 08-118 at 3 (citation omitted).    Thus, the standard for

demonstrating likelihood of success on the merits in this case is

relatively low.

     Defendant-intervenor’s main argument with respect to success

on the merits is that there is an “overwhelming case against

plaintiff” based on the United States Department of Commerce’s

(“Commerce”) application of a total Adverse Facts Available

(“AFA”) antidumping duty rate.     See Def.-Int.’s Opp. 13-14.

Plaintiff, on the other hand, asserts that

          even if the Commerce Department’s finding of
          a lack of full cooperation with respect to
          sourcing of certain inputs is determined to
          be supported by substantial evidence on the
          record, this does [not] warrant the Commerce
          Department’s revocation of Since Hardware’s
          eligibility for separate rate status based on
          its reported data and factors of production,
          a status for which the Commerce Department
          qualified Since Hardware in the preliminary
          determination and in the two completed
          administrative reviews.

Pl.’s Reply 6.    For the court, plaintiff has set forth

substantial claims that justify it proceeding to litigation based

on its separate duty rate claim.     Qingdao Taifa, 32 CIT at __,

Slip Op. 08-118 at 3 (“While the burden, as to this factor, is

not high in actions such as this when irreparable harm is

established, there still must be a substantial question for the

court to resolve.”) (citations omitted).    Here, defendant-

intervenor’s assertion that “there can be no substantial question

because [plaintiff] received a total-adverse-facts-based rate of
Court No. 09-00123                                          Page 5

duty due to non-cooperation . . . does not resolve the matter.”

Id. at __, Slip Op. 08-118 at 4.    The primary issue to be

litigated in this case is whether the application of total AFA

justified in law and fact Commerce’s actions.    Although

plaintiff’s full case has not been presented to the court,

plaintiff’s claims form a sufficient basis to meet the low

standard of likelihood of success on the merits.

     Finally, as in Qingdao Taifa,

            There is also little doubt that the public
            interest is served by permitting the court to
            reach a considered decision regarding the
            agency’s determination as to whether, and in
            what amount, duties are owed, before
            precluding the parties from litigating the
            issue. No harm comes to either side by
            preserving the status quo.

Qingdao Taifa, 32 CIT at __, Slip Op. 08-118 at 3.

     Upon consideration of the motion, defendant-intervenor’s

opposition and plaintiff’s reply, and after due deliberation, it

is hereby

     ORDERED that plaintiff’s motion for preliminary injunction

is granted; it is further

     ORDERED that defendant United States, together with its

delegates, officers, agents, servants and employees of the United

States Department of Commerce and United States Customs and

Border Protection, shall be, and hereby are, enjoined during the

pendency of this action, including relevant appeals and remands,

from liquidating, or causing or permitting liquidation of, any
Court No. 09-00123                                      Page 6

unliquidated entries into the United States of floor-standing,

metal-top ironing tables and certain parts thereof from China

that:

     (1)   are subject to the antidumping duty administrative
           review, the results of which were published as
           Floor-Standing, Metal-Top Ironing Tables and
           Certain Parts Thereof from the People’s Republic
           of China: Final Results of Antidumping Duty
           Administrative Review, 74 Fed. Reg. 11,085 (Dep’t
           of Commerce Mar. 16, 2009) (“Final Results”);

     (2)   were produced and exported to the United States by
           plaintiff, Since Hardware (Guangzhou) Co., Ltd.;

     (3)   were entered, or were withdrawn from warehouse,
           for consumption on or after August 1, 2006 through
           and including July 31, 2007; and

     (4)   remain unliquidated as of 5:00 p.m. E.D.T. on the
           fifth business day after the day upon which copies
           of the Order are served by hand by plaintiff upon
           the following individuals and received by them or
           by their delegates:

     Ann Sebastian
     Director APO United/Import Administration Docket Center
     International Trade Administration
     U.S. Department of Commerce
     14th Street and Constitution Avenue, NW, Room 1870
     Washington, DC 20230

     Jayson P. Ahern
     Acting Commissioner of U.S. Customs and Border
     Protection
     Attn: Alfonso Robles, Esq., Chief Counsel
     U.S. Bureau of Customs and Border Protection
     1300 Pennsylvania Avenue, NW, Room 4.4B
     Washington, DC 20229


     It is further

     ORDERED that plaintiff shall file a certificate of service

within three (3) business days of serving the Order on the above-
Court No. 09-00123                                     Page 7

referenced individuals; and

     ORDERED that this injunction shall expire upon entry of a

final and conclusive court decision in this litigation, including

all appeals and remand proceedings, as provided in 19 U.S.C.

§ 1516a(e).


                                         /s/ Richard K. Eaton
                                             Richard K. Eaton


Dated:    March 27, 2009
          New York, New York
