US Ass'n of Importers of Textiles and Apparel v. United States

Slip Op. 04-162

UNITED STATES COURT OF INTERNATIONAL TRADE

BEFORE: HONORABLE RICHARD W. GOLDBERG, SENIOR JUDGE

U.S. ASSOCIATION OF IMPORTERS
OF TEXTILES AND APPAREL,

Plaintiff,

v.

UNITED STATES, U.S. DEPARTMENT
OF COMMERCE, SECRETARY OF
COMMERCE DONALD EVANS, U.S. PUBLIC VERSION
DEPARTMENT OF STATE, SECRETARY
OF STATE COLIN L. POWELL, U.S.
DEPARTMENT OF THE TREASURY, Court No. 04-00598
SECRETARY OF THE TREASURY JOHN
W. SNOW, OFFICE OF THE U.S.
TRADE REPRESENTATIVE, U.S.
TRADE REPRESENTATIVE ROBERT B.
ZOELLICK, U.S. DEPARTMENT OF
LABOR, SECRETARY OF LABOR
ELAINE L. CHAO, and THE
COMMITTEE FOR THE
IMPLEMENTATION OF TEXTILE
AGREEMENTS,

Defendants.

[Plaintiff’s motion for a preliminary injunction granted.]

Date: December 30, 2004

Brenda Ann Jacobs, David J. Ludlow, and Sharon H. Yuan (Sidley,
Austin, Brown & Wood, LLP) for plaintiff U.S. Association of
Importers of Textiles and Apparel.

Stuart E. Schiffer, Deputy Assistant Attorney General, David M.
Cohen, Director, Jeanne E. Davidson, Deputy Director, and Michael
David Panzera, Attorney, Commercial Litigation Branch, Civil
Division, U.S. Department of Justice; John Veroneau and Jason
Kearns, Of Counsel, Office of the U.S. Trade Representative; Anne
Talbot, Linda Chang, and Ada Bosque, Of Counsel, U.S. Department
Court No. 04-00598 Page 2
of Commerce; Howard M. Radzely, Katherine E. Bissell, and Tambra
A. Leonard, Of Counsel, U.S. Department of Labor; William H.
Taft, IV, Of Counsel, U.S. Department of State; Arnold I. Havens
and John G. Murphy, Jr., Of Counsel, U.S. Department of the
Treasury, for defendant United States.
OPINION

Before the Court is a Motion for a Preliminary Injunction

from plaintiff U.S. Association of Importers of Textiles and

Apparel, dated December 1, 2004. Plaintiff requests that the

Court enjoin defendant, during the pendency of this action, from

accepting, considering, or taking any further action on requests

filed under the procedures issued by the Committee for the

Implementation of Textile Agreements (“CITA”) in 68 Fed. Reg.

27787 (May 21, 2003) that are based on the threat of market

disruption upon the elimination of quotas or safeguards on

textile or textile products from the People’s Republic of China

(“China”). Defendant United States opposes the Motion and also

moves to dismiss.1 A hearing was held on Monday, December 20,

2004 concerning plaintiff’s Motion for a Preliminary Injunction.

As conceded by both parties at the hearing and in their briefs,

the Court has subject matter jurisdiction pursuant to 28 U.S.C. §

1581(i)(3).

Background

On January 1, 2005, all quotas on the importation of textile

and apparel products made in World Trade Organization (“WTO”)

1
The Court reserves judgment on defendant’s motion to
dismiss until briefing on the issues raised therein is complete.
Court No. 04-00598 Page 3
member countries will be eliminated, pursuant to the Uruguay

Round Agreements. See Agreement on Textiles and Clothing

(“ATC”), Apr. 15, 1994, Agreement Establishing the World Trade

Organization, Annex 1A; see also 19 U.S.C. § 3511 (codifying

approval of and general provisions relating to the Uruguay Round

Agreements). Although China is entitled to the benefits of the

ATC, under the terms of China’s accession to the WTO, the United

States may impose temporary textile-specific safeguard measures

on Chinese imports of textile and apparel products under certain

circumstances (“textile-specific safeguards”). See Protocol on

the Accession of the People’s Republic of China, § 1.2, WT/L/432

(Nov. 23, 2001); Report of the Working Party on the Accession of

China, paras. 241-42, 342, WT/MIN(01)/3 (Nov. 10, 2001) (together

“China’s Accession Agreement”).

On behalf of defendant, CITA has assumed the administration

of the textile-specific safeguards based on its general authority

to “supervise the implementation of all textile trade

agreements.” Exec. Order 11651, 37 Fed. Reg. 4699 (Mar. 3,

1972), as amended by Exec. Order 11951, 42 Fed. Reg. 1453 (Jan.

6, 1977), as further amended by Exec. Order 12188, 45 Fed. Reg.

989 (Jan. 2, 1980); see also 7 U.S.C. § 1854 (delegating

authority to executive branch to negotiate agreements with

foreign governments limiting the exportation of textiles and

textile products to the United States and to promulgate
Court No. 04-00598 Page 4
regulations to carry out such agreements). CITA is an

interagency committee that includes representatives of the Office

of the U.S. Trade Representative, the U.S. Department of

Commerce, the U.S. Department of Labor, the U.S. Department of

State, and the U.S. Department of the Treasury.

In May 2003, CITA published in the Federal Register a Notice

of Procedures describing the rules that would govern CITA’s

consideration of requests from the public for textile-specific

safeguards on Chinese imports (the “China Textile Safeguard

Regulations”). See Procedures for Considering Requests from the

Public for Textile and Apparel Safeguard Actions on Imports from

China, 68 Fed. Reg. 27787 (May 21, 2003). As a procedural

matter, CITA explained that it had determined that its Notice of

Procedures was not subject to the Administrative Procedure Act

(“APA”) requirements to provide prior notice and opportunity for

public comment, pursuant to 5 U.S.C. § 553(a)(1) (foreign affairs

exception) and 5 U.S.C. § 553(b)(A) (exception for interpretative

rules, general statements of policy, or rules of agency

organization, procedure, or practice). Id. at 27788. CITA

further stated that it believed that any of its actions under the

textile-specific safeguards were not subject to the APA

rulemaking provisions under the foreign affairs exception. Id.

Substantively, in describing the scope of the China Textile

Safeguard Regulations, the Notice of Procedures directed that:
Court No. 04-00598 Page 5
A request [for a textile-specific safeguard] will only
be considered if the request includes the specific
information set forth below in support of a claim that
the Chinese origin textile or apparel product is, due
to market disruption, threatening to impede the orderly
development of trade in like or directly competitive
products.

Id. (emphasis added). Supporting information was specified as:

(A) a product description; (B) import data, which “should

demonstrate that imports of Chinese origin textile and apparel

products . . . are increasing rapidly in absolute terms”; (C)

production data; and (D) market share data. Id. at 27788-89.

Further, the Notice of Procedures specified a three-tier

process for CITA’s consideration of requests under the China

Textile Safeguard Regulations. Id. at 27789. First, upon

receipt of a safeguard request from the public, CITA determines

within 15 days whether the request falls within the scope of the

China Textile Safeguard Regulations. Id. Second, if CITA

determines that a request meets the necessary requirements, CITA

publishes a Notice Seeking Public Comments in the Federal

Register and opens a 30-day public comment period. Id. Third,

within 60 days of the close of the public comment period, CITA

determines whether to impose the safeguard. Id. In case of an

affirmative determination, CITA simultaneously imposes the

safeguard (calculated pursuant to the terms of China’s Accession
Court No. 04-00598 Page 6
Agreement) and initiates negotiations with China “with a view to

easing or avoiding market disruption.” Id. (emphasis added).2

Beginning in July 2003, domestic textile producers filed

four safeguard requests on a variety of textiles, including

Chinese gloves that were still under quota. See 68 Fed. Reg.

49440 (Aug. 18, 2003). In August 2003, CITA agreed to consider

three requests. See id. at 49441, 49445, 49449. However, CITA

rejected consideration of the fourth request concerning Chinese

gloves still under quota. In a letter to the National Textile

Association, CITA’s Chairman indicated that the request was

rejected because CITA would not accept requests for safeguards on

products still under quota. See Plaintiff’s Memorandum of Points

and Authorities in Support of Plaintiff’s Motion for a

Preliminary Injunction (“Pl.’s Br.”) at Ex. 4 (Letter from James

C. Leonard III to National Textile Association of 8/13/03).

However, in June 2004, CITA accepted for consideration a request

for safeguards on several merged categories of Chinese socks,

including cotton socks that were still under quota. Thereafter,

CITA decided to act on the merged request for safeguards because

it determined that “imports of socks from China play a

2
CITA issued a clarification of its rules in August 2003
indicating that it would also maintain an official record for
each safeguard request made pursuant to the China Textile
Safeguard Regulations. See Clarification of Procedures for
Considering Requests from the Public for Textile and Apparel
Safeguard Actions on Imports from the People's Republic of China,
68 Fed. Reg. 49440 (Aug. 18, 2003).
Court No. 04-00598 Page 7
significant role in the existence of and threat of market

disruption.” 69 Fed. Reg. 63371, 63372 (Nov. 1, 2004) (emphasis

added). CITA imposed quotas on the merged categories of Chinese

socks, resulting in a double quota on Chinese cotton socks for

the remainder of 2004, and initiated negotiations with the

Chinese government. Id.

From July to August 2004, CITA and U.S. Department of

Commerce officials made statements to various publications

indicating that the China Textile Safeguard Regulations “were

intended for cases of actual market disruption rather than the

threat of such disruption.” BNA Daily Report for Executives, No.

141, China Textile Safeguards to Focus on Market Disruption

Cases, Official Says, at A-28 (July 23, 2004). Then, in

September 2004, CITA announced that “existing US regulations

would allow safeguards based on threat of a possible surge in

imports, rather than an actual surge.” China Trade Extra,

Aldonas Insists China Textile Regs Can Handle Import Threat Cases

(Sept. 3, 2004). None of these statements were made in the

Federal Register.

Since October 2004, CITA has accepted for consideration 12

requests for safeguards under the China Textile Safeguard

Regulations which allege threat of market disruption (rather than

actual market disruption) by Chinese textile imports (“threat-

based requests”). See 69 Fed. Reg. 64034 (Nov. 3, 2004); 69 Fed.
Court No. 04-00598 Page 8
Reg. 64911 (Nov. 9, 2004); 69 Fed. Reg. 64912 (Nov. 9, 2004); 69

Fed. Reg. 64913 (Nov. 9, 2004); 69 Fed. Reg. 64914 (Nov. 9,

2004); 69 Fed. Reg. 64915 (Nov. 9, 2004); 69 Fed. Reg. 68133

(Nov. 23, 2004); 69 Fed. Reg. 70661 (Dec. 7, 2004); 69 Fed. Reg.

71781 (Dec. 10, 2004); 69 Fed. Reg. 75516 (Dec. 17, 2004); 69

Fed. Reg. 77232 (Dec. 27, 2004); 69 Fed. Reg. 77998 (Dec. 29,

2004). CITA has not yet acted on any of these requests.

Plaintiff commenced this action by filing a complaint on

December 1, 2004. In its complaint, plaintiff alleges that its

members made their business plans for 2005 in reliance on CITA’s

rules and public representations that it would not consider

threat-based requests. However, given CITA’s recent acceptance

of threat-based requests, plaintiff’s members have felt compelled

to reconfigure their sourcing plans for 2005, since they fear

that China will be subject to extremely tight quota restrictions

earlier than they had anticipated. As a result, plaintiff asks

the Court to enjoin CITA from further accepting, considering, or

otherwise proceeding with requests for safeguard measures based

on a threat of market disruption.

Discussion

To prevail on its Motion for a Preliminary Injunction,

plaintiff must show: (1) that it will be immediately and

irreparably injured; (2) that the balance of hardship on all the

parties favors the petitioner; (3) that there is a likelihood of
Court No. 04-00598 Page 9
success on the merits; and (4) that the public interest would be

better served by the relief requested. Zenith Radio Corp. v.

United States, 710 F.2d 806, 809 (Fed. Cir. 1983).

The Court agrees with plaintiff in both its Motion for a

Preliminary Injunction and arguments made at the hearing.

Accordingly, the Court finds that plaintiff is entitled to

injunctive relief.

1. Immediate and Irreparable Injury

To demonstrate immediate and irreparable injury, “plaintiff

must prove that unless the injunction is awarded, some harm will

result to it that cannot be reasonably redressed in a court of

law.” Am. Customs Brokers Co. v. United States Customs Serv., 10

CIT 385, 386, 637 F. Supp. 218, 220 (1986).

Plaintiff alleges that, unless a preliminary injunction is

issued, its members have been and will continue to be irreparably

harmed by CITA’s consideration of threat-based requests under the

China Textile Safeguard Regulations. Pl.’s Br. at 9. Plaintiff

contends that CITA’s consideration of these requests is

unsupported by the text of the China Textile Safeguard

Regulations and represents an impermissible departure from CITA’s

precedent and public statements. Id. at 10. Plaintiff alleges

that its members reasonably relied on CITA’s rules and precedent

with regard to the textile-specific safeguards in designing 2005

business plans. Id. As a result of CITA’s insupportable
Court No. 04-00598 Page 10
actions, plaintiff alleges that its members’ operations have been

and will continue to be disrupted, and its members are being

forced to make sub-optimal business decisions that cannot be

undone or reimbursed if plaintiff ultimately succeeds on the

merits of the case. Id. at 10-11.

The Court finds that several of plaintiff’s irreparable harm

allegations involve pure economic loss, see, e.g., Declaration of

[ ] (“[ ] Decl.”) ¶ 6 (describing the company’s

“substantial economic harm”); Declaration of [ ] (“[

] Decl.”) ¶ 8 (discussing increased shipping costs). As noted

by defendant in its Response in Opposition to Declarations Filed

by USA-ITA in Support of its Motion for a Preliminary Injunction

(“Def.’s Opp’n”) at 19, economic loss alone is insufficient to

justify preliminary injunctive relief. See, e.g., Wis. Gas Co.

v. Fed. Energy Regulatory Comm’n, 758 F.2d 669, 674 (D.C. Cir.

1985). However, the Court also finds that plaintiff has shown

much more than just economic loss. Because of CITA’s mere

acceptance of threat-based requests, plaintiff’s members have

found it prudent to cancel or consider canceling orders in China

and move them to other countries where possible. [ ] Decl. ¶

7; [ ] Decl. ¶¶ 4, 8; Declaration of [ ] (“[

] Decl.”) ¶ 9. However, it has been difficult for plaintiff’s

members to find suitable substitute factories because other

importers are also scrambling to secure alternative production
Court No. 04-00598 Page 11
facilities.3 See [ ] Decl. ¶ 4. This difficulty is

exacerbated by the unrefuted fact that Chinese factories

generally have fewer audit failures, ensure more on-time

deliveries, employ highly skilled workers, and operate as some of

the most efficient production facilities in the world. [ ]

Decl. ¶ 7. By being forced to move production to less efficient

factories in other countries, id. ¶ 11, plaintiff’s members face

the real possibility that they may not be able to deliver

products to their customers in a timely manner, which will impair

their goodwill and business reputation.4 See [ ] Decl. ¶ 9; [

] Decl. ¶ 7. This constitutes irreparable injury. See Zurn

Constructors, Inc. v. B.F. Goodrich Co., 685 F. Supp. 1172, 1181

(D. Kan. 1988) (“Numerous cases support the conclusion that loss

of customers [and] loss of goodwill . . . can constitute

irreparable harm.”); Am. Customs Brokers, 10 CIT at 387, 637 F.

Supp. at 221 (finding irreparable injury where plaintiff

3
Indeed, as discussed more fully infra, for some products
that can be produced only in China, reallocation of production is
a virtual impossibility. [ ] Decl. ¶ 9. This is because some
of plaintiff’s members produce [ ] products that
require [
]. Id. ¶¶ 5, 9.
4
By moving orders to other countries, plaintiff’s members
also risk jeopardizing the longstanding business relationships
they have developed with several of the major garment factories
in China. [ ] Decl. ¶¶ 6, 8; [ ] Decl. ¶¶ 7, 10. These
relationships are of the utmost importance to plaintiff’s
members, [ ] Decl. ¶ 6, and their impairment constitutes
another form of irreparable injury.
Court No. 04-00598 Page 12
demonstrated substantial harm to business goodwill, business

reputation, and a significant loss of new business).

In addition, plaintiff’s members’ inability to stock shelves

in a timely manner will create an unquantifiable ripple effect,

as shortages of merchandise in one category can affect sales in

other categories. [ ] Decl. ¶ 5; [ ] Decl. ¶ 4.

Moreover, because of the slower production and transit times from

countries other than China,5 plaintiff’s members are finding it

necessary to place orders earlier than they normally would. [

] Decl. ¶ 15. This, in turn, inhibits the member companies’

ability to respond to trend-specific demand, thereby creating an

unquantifiable inventory risk. Id.; [ ] Decl. ¶ 7. The slow

production and transit times also mean that plaintiff’s members

will be impeded in reordering and timely delivering high-demand

items. [ ] Decl. ¶ 15. All of this constitutes

irreparable injury as well. See Lois Jeans & Jackets, U.S.A.,

Inc. v. United States, 5 CIT 238, 241-42, 566 F. Supp. 1523,

1526-27 (1983) (finding irreparable injury where plaintiff

demonstrated an inability to fill its customers’ orders, injury

to its reputation as a reliable supplier, potential

unquantifiable costs required for altering its production

5
For example, the transit times from several of the
countries to which plaintiff’s members have moved their
production are typically 25 to 30 days, whereas transit times
from China are as few as 11 days. [ ] Decl. ¶ 14.
Court No. 04-00598 Page 13
methods, and a loss of past and future sales); Am. Air Parcel

Forwarding Co. v. United States, 1 CIT 293, 300, 515 F. Supp. 47,

54 (1981) (finding irreparable injury where plaintiff

demonstrated significant disruption of its business operations).

Finally, plaintiff provided affidavits indicating that China

is the only country from which some of its members are able to

obtain certain goods. [ ] Decl. ¶ 17; [ ] Decl. ¶ 9.

For instance, one of plaintiff’s members is only able to obtain

fine gauge knit sweaters from China. [ ] Decl. ¶ 17.

However, these sweaters are the subject of threat-based requests

that CITA has already accepted for consideration. Id.;

Defendant’s Memorandum in Support of its Motion to Dismiss and

Opposition to Plaintiffs’ Motion for a Preliminary Injunction

(“Def.’s Br.”) at Schedule A. Thus, the member company has been

unable to place its full commitment of orders in China for fear

that a quota may be filled before it receives the sweaters. [

] Decl. ¶ 17. This inability of plaintiff’s members to obtain

certain specialized products from countries other than China

constitutes yet another type of irreparable harm. See Green

Stripe, Inc. v. Berny’s Internacionale, 159 F. Supp. 2d 51, 57

(E.D. Pa. 2001) (finding irreparable harm where defendant’s

violation of an exclusivity clause in a sales contract prevented

plaintiff from being able to sell a unique, perishable product

for which there was no available substitute on the market);
Court No. 04-00598 Page 14
Reuters Ltd. v. United Press Int’l, Inc., 903 F.2d 904, 907-08

(2d Cir. 1990) (finding that termination of the delivery of a

unique product results in irreparable harm that is nearly

impossible to value).

Defendant argues that plaintiff’s assertions of irreparable

injury are purely speculative because it is unknown whether CITA

will actually impose safeguards. Def.’s Br. at 60; Def.’s Opp’n

at 20. The Court disagrees. The irreparable harm suffered by

plaintiff arises directly from CITA’s mere acceptance of threat-

based requests, since such acceptance makes it necessary for

plaintiff’s members to detrimentally alter their 2005 business

plans. Moreover, contrary to defendant’s assertion, Def.’s Opp’n

at 3, this irreparable harm is ongoing because plaintiff’s

members typically place about 30 percent of their orders for the

second half of 2005 by January 2005. Pl.’s Br. at Ex. 1

(Declaration of Laura E. Jones) ¶ 18; see also [ ] Decl. ¶ 3.

Thus, a full 70 percent of plaintiff’s members’ orders for this

period remain in limbo as a result of CITA’s actions. Id.

For all these reasons, the Court finds that plaintiff has

suffered, and will continue to suffer, irreparable injury if the

Court does not enjoin CITA from accepting, considering, or taking

any further action on threat-based requests.
Court No. 04-00598 Page 15
2. Balance of Hardships

Before granting the requested injunctive relief, the Court

must also evaluate the balance of hardships in this case, i.e.,

“determine which party will suffer the greatest adverse effects

as a result of the grant or denial of the preliminary

injunction.” Ugine-Savoie Imphy v. United States, 24 CIT 1246,

1250, 121 F. Supp. 2d 684, 688 (2000).

The balance of hardships favors granting the requested

relief. As discussed above, plaintiff will suffer irreparable

injury if an injunction is not issued enjoining CITA’s

consideration of threat-based requests under the China Textile

Safeguard Regulations. In contrast, defendant will not suffer

any cognizable harm by issuance of the requested injunction.

Contrary to defendant’s contention, Def.’s Br. at 67, defendant

will still be able to effectively administer the textile-specific

safeguards guaranteed by China’s Accession Agreement. For

example, under the China Textile Safeguard Regulations, CITA may

still consider safeguard requests from the public based on actual

market disruption caused by Chinese products. 68 Fed. Reg. at

27789. As conceded by defendant, Def.’s Opp’n at 16, CITA may

also self-initiate such an inquiry. 68 Fed. Reg. at 27789.

Further, since the commencement of this action, CITA has

exercised its authority to deny immediate entry into the United

States of any products (including Chinese products) shipped in
Court No. 04-00598 Page 16
2004, in excess of 2004 quota limits, for importation in January

2005. See Entry of Shipments of Cotton, Wool, Man-Made Fiber,

Silk Blend and Other Vegetable Fiber Textiles and Apparel in

Excess of 2004 Agreement Limits or Certain China Safeguard

Limits, 69 Fed. Reg. 72181, 72181-82 (Dec. 13, 2004). This

measure will certainly enable CITA to limit the volume of Chinese

products entering the United States in early 2005. As such,

defendant has failed to show that the requested injunctive relief

would adversely affect the ability of the United States to

implement the terms of China’s Accession Agreement or protect the

domestic textile industry from a surge of Chinese imports. See

Associated Dry Goods Corp. v. United States, 1 CIT 306, 311, 515

F. Supp. 775, 779-80 (1981) (denying preliminary injunction where

CITA’s ability to conduct foreign policy, implement trade

agreements, and protect domestic industry would be impeded).

Where “‘little if any harm will befall other interested

persons,’” the balance of hardships test favors granting

injunctive relief. Id. at 312, 515 F. Supp. at 780 (quoting

Wash. Metro. Area Transit Comm’n v. Holiday Tours, Inc., 559 F.2d

841, 844 (D.C. Cir. 1977)). However, as argued by defendant,

Def.’s Opp’n at 15, even where the balance of hardships favors

the movant, injunctive relief is nonetheless inappropriate where

it would effectively grant the relief ultimately requested. Id.

at 311, 515 F. Supp. at 780 (citing Selchow & Righter Co. v. W.
Court No. 04-00598 Page 17
Printing & Lithographic Co., 112 F.2d 430, 431 (7th Cir. 1940))

(denying preliminary injunction against imposition of quotas by

CITA in part because interlocutory injunction would achieve

ultimate relief sought). The rationale for this rule is that

“[a] court should not grant temporary relief in the form of a

preliminary injunction which will dispose of the case on the

merits.” Manhattan Shirt Co. v. United States, 2 CIT 270, 274

(1981) (denying preliminary injunction against enforcement of

CITA-embargoed merchandise in part because injunction would

dispose of the case on the merits). Here, the scope of

plaintiff’s complaint clearly exceeds that of the requested

preliminary injunction. In its complaint, plaintiff has raised

an important question as to whether CITA’s delegated authority to

administer textile agreements includes the authority to issue

regulations pursuant to China’s Accession Agreement. Whether a

WTO accession agreement is a “textile agreement” within the

meaning of 7 U.S.C. § 1854 is a question of first impression. If

plaintiff is fully successful on the merits of the case, CITA’s

China Textile Safeguard Regulations will be invalidated in toto.

Such an order would far exceed the more limited scope of the

requested preliminary injunction. As such, the balance of the

hardships tips in favor of granting preliminary injunctive

relief.
Court No. 04-00598 Page 18
3. Likelihood of Success on the Merits

The Court must also consider whether plaintiff has

demonstrated a likelihood of success on the merits of its case

before a preliminary injunction may be issued. Sanho

Collections, Ltd. v. Chasen, 1 CIT 6, 12, 505 F. Supp. 204, 208

(1980). To satisfy this requirement, it is ordinarily sufficient

for the party requesting the preliminary injunction to raise

“‘serious, substantial, difficult and doubtful’ questions that

are the proper subject of litigation” where it is clear that “the

moving party will suffer substantially greater harm by the denial

of the preliminary injunction than the non-moving party would by

its grant.” Ugine-Savoie Imphy, 24 CIT at 1251, 121 F. Supp. 2d

at 689 (quoting PPG Indus., Inc. v. United States, 11 CIT 5, 8

(1987)).

In this case, plaintiff has raised sufficiently serious and

difficult questions regarding the propriety of CITA’s actions to

warrant issuance of the preliminary injunction. Specifically,

plaintiff’s complaint alleges that CITA’s acceptance of threat-

based requests violates its own regulations and the APA. This

allegation raises questions as to the applicability of APA

rulemaking procedures to CITA’s consideration of public requests

for safeguards made pursuant to CITA’s own published regulations.

This important issue was not addressed by the Court’s opinion in

Mast Industries, Inc. v. Regan, 8 CIT 214, 596 F. Supp. 1567
Court No. 04-00598 Page 19
(1984) (finding APA rulemaking procedures inapplicable to

regulations that define or alter quantitative limitations imposed

pursuant to a bilateral trade agreement or unilateral action).

In addition, plaintiff’s complaint alleges that CITA has exceeded

its delegated authority by assuming administration of the

textile-specific safeguards without a clear Congressional mandate

to do so. CITA’s ability to administer the terms of a WTO

accession agreement is a novel question – both as a matter of

first impression and in light of express Congressional action to

delegate the administration of other aspects of China’s Accession

Agreement to the International Trade Commission. See 19 U.S.C. §

2451. Given the seriousness of these questions presented, a

preliminary injunction is justified in this case.

4. Public Interest

Finally, “[a]ssuming plaintiff has overcome the burden of

showing the probability of irreparable harm and the likelihood of

success on the merits, or alternatively, that the parties have

presented serious questions of law and that the balance of the

hardships tips in favor of the plaintiff, the court must still

protect the public interest.” Associated Dry Goods Corp., 1 CIT

at 311, 515 F. Supp. at 779.

In this case, the public interest would be served by

granting the requested relief. It is clearly in the public

interest that the trade laws be properly administered. PPG
Court No. 04-00598 Page 20
Indus., Inc. v. United States, 14 CIT 18, 22-23, 729 F. Supp.

859, 863 (1990) (finding preliminary injunction against

liquidation of entries ordered by the International Trade

Administration appropriate to ensure fair interpretation of trade

laws). Plaintiff, as the representative of multiple interested

parties, has the right to participate in the judicial review

process to challenge serious perceived errors in CITA’s

administration of those laws. See Ceramica Regiomontana, S.A. v.

United States, 7 CIT 390, 397, 590 F. Supp. 1260, 1265 (1984)

(granting preliminary injunction where plaintiff raised serious

concerns about the International Trade Administration’s

methodology and findings affecting the public interest). Here,

plaintiff has raised substantial questions bearing upon the

propriety of CITA’s actions when considering requests for

textile-specific safeguards from the general public. An

injunction will “preserve plaintiff's rights until the merits and

the issue of compliance with the law are fully considered. It

will provide interim relief until those doubts that have been

raised are eliminated.” PPG Indus., 11 CIT at 10 (finding

preliminary injunction against liquidation of entries ordered by

the International Trade Administration to be in public interest).

Moreover, although there is a “valid public interest in a policy

of quantitative import restrictions on textile products[,]”

Sanho, 1 CIT at 12, 505 F. Supp. at 208, injunctive relief in
Court No. 04-00598 Page 21
this case will not impede CITA’s ability to impose textile-

specific safeguards. Accordingly, the public interest will be

served by issuance of the requested injunction.

For the foregoing reasons, the Court grants plaintiff’s

Motion for a Preliminary Injunction. A separate order will be

issued accordingly.

/s/ Richard W. Goldberg
Richard W. Goldberg
Senior Judge

Date: December 30, 2004
New York, New York