Slip Op. 00 - 7
UNITED STATES COURT OF INTERNATIONAL TRADE
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NEENAH FOUNDRY CO.; ALHAMBRA FOUNDRY
INC.; ALLEGHENY FOUNDRY CO.; DEETER :
FOUNDRY INC.; EAST JORDAN IRON WORKS,
INC.; LEBARON FOUNDRY INC.; MUNICIPAL :
CASTINGS, INC.; and U.S. FOUNDRY &
MANUFACTURING CO., :
Plaintiffs, Court No. 99-07-00441
:
v.
:
THE UNITED STATES,
:
Defendant.
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Opinion & Order
[Plaintiffs' application for preliminary injunction,
continuing suspension of liquidation pending judi-
cial resolution of complaint(s) regarding agency
"sunset" review(s) of countervailing-duty order,
denied.]
Dated: January 20, 2000
Collier, Shannon, Rill & Scott, PLLC (Paul C. Rosenthal,
Robin H. Gilbert and Grace W. Kim) for the plaintiffs.
David W. Ogden, Acting Assistant Attorney General; David M.
Cohen, Director, and Velta A. Melnbrencis, Assistant Director,
Commercial Litigation Branch, Civil Division, U.S. Department of
Justice; and Office of Chief Counsel for Import Administration,
U.S. Department of Commerce (Robert E. Nielsen), of counsel, for
the defendant.
Cameron & Hornbostel LLP (Dennis James, Jr. and Michele
Sherman Davenport) for Bengal Export Corporation, Carnation In-
dustries Limited, Commex Corporation, Crescent Foundry Company
Private Limited, Dinesh Brothers Private Limited, Kajaria Iron
Castings Ltd., Kiswok Industries Pvt. Ltd., Nandikeshwari Iron
Foundry Pvt. Ltd., Rangilal & Sons, R.B. Agarwalla & Company,
RSI Limited, Serampore Industries Pvt. Ltd., and Victory Castings
Limited, proffered intervenor-defendants.
AQUILINO, Judge: Claiming their current circumstances
give rise to an issue of first impression, come now the plain-
Court No. 99-07-00441 Page 2
tiffs with an application to enjoin the International Trade Ad-
ministration, U.S. Department of Commerce ("ITA") from instruct-
ing the Customs Service to discontinue suspension of liquidation
and collection of cash deposits on and after January 1, 2000 for
entries of merchandise theretofore within the ambit of Certain
Iron Metal Castings From India: Countervailing Duty Order, 45
Fed.Reg. 68,650 (Oct. 16, 1980), per the ITA notice of its
revocation published November 12, 1999, 64 Fed.Reg. 61,602.
I
This action derives from the "Uruguay Round" negotia-
tions under the guise of the General Agreement on Tariffs and
Trade, which resulted in multilateral agreements, including one
on subsidies and countervailing measures, and which in turn led
the U.S. Congress to enactment of the Uruguay Round Agreements
Act, Pub. L. No. 103-465, 108 Stat. 4809 (Dec. 8, 1994). Sec-
tion 220 thereof amended section 751 of the Trade Agreements Act
of 1979, 19 U.S.C. §1675, to require that
5 years after the date of publication of . . . a coun-
tervailing duty order . . . the [ITA] and the [Interna-
tional Trade] Commission . . . conduct a review to de-
termine . . . whether revocation of . . . [such] order
. . . would be likely to lead to continuation or recur-
rence of . . . a countervailable subsidy . . . and of
material injury.
19 U.S.C. §1675(c)(1) (1995). Such five-year or "sunset" reviews
are to be conducted pursuant to section 752, which was added to
the 1979 act by section 221 of Pub. L. No. 103-465, 19 U.S.C. §
Court No. 99-07-00441 Page 3
1675a (1995) (Special Rules for Section 751(b) and 751(c) Re-
views). Both the ITA and the Commission ("ITC") have now done
so with regard to the above-cited 1980 countervailing-duty order.
In its Amended Final Results of Expedited Sunset Review: Iron
Metal Castings From India, 64 Fed.Reg. 37,509, 37,511 (July 12,
1999), the ITA continued
to find that revocation of the countervailing duty
order would be likely to lead to continuation or re-
currence of a countervailable subsidy at the rates
listed in the Department's final determination of
the sunset review of this case[,]
citing Final Results of Expedited Sunset Review: Iron Metal Cast-
ings From India, 64 Fed.Reg. 30,316 (June 7, 1999). Nonetheless,
the above-named plaintiff domestic U.S. manufacturers of compet-
ing merchandise commenced this action, alleging in their com-
plaint, among other things, that the agency's determination of
certain subsidy rates is "erroneous, being significantly under-
stated." Complaint, para. 8.
Subsequent to publication of that determination, which
entailed margins ranging from 0.84 to 1.82 percent1, the ITC came
to conclude (over the dissent of two commissioners) that
revocation of the countervailing duty order on iron
metal castings from India would not be likely to lead
to continuation or recurrence of material injury to
an industry in the United States within a reasonably
foreseeable time[2,]
1
See 64 Fed.Reg. at 30,320.
2
Iron Metal Castings From India; Heavy Iron Construction
Castings From Brazil; and Iron Construction Castings From Brazil,
Canada, and China, 64 Fed.Reg. 58,442 (Oct. 29, 1999).
Court No. 99-07-00441 Page 4
given the magnitude of those rates3, among other factors. See,
e.g., Iron Metal Castings From India; Heavy Iron Construction
Castings From Brazil; and Iron Construction Castings From Brazil,
Canada, and China, USITC Pub. 3247, p. 13 (Oct. 1999). Whereupon
the ITA notice of revocation, supra, issued -- and caused the
plaintiffs to interpose their application for a preliminary in-
junction, which the court finds timely, and in which they contend
that, in the absence of this immediate relief,
the domestic industry will forfeit its right to ob-
tain judicial review and the full benefit of a favor-
able ruling by this Court.
Plaintiffs' Motion for Preliminary Injunction, p. 2.
II
Both before and during a hearing in open court, the
application was opposed by the defendant4, notwithstanding such
3
The Trade Agreements Act, as amended, provides that, in
making a revocation determination, the Commission "may consider
. . . the magnitude of the net countervailable subsidy." 19
U.S.C. §1675a(a)(6) (1995).
4
Opposition was also presented in the form of a motion by
Bengal Export Corporation, Carnation Industries Limited, Commex
Corporation, Crescent Foundry Company Private Limited, Dinesh
Brothers Private Limited, Kajaria Iron Castings Ltd., Kiswok
Industries Pvt. Ltd., Nandikeshwari Iron Foundry Pvt. Ltd., Ran-
gilal & Sons, R.B. Agarwalla & Company, RSI Limited, Serampore
Industries Pvt. Ltd., and Victory Castings Limited for leave to
intervene as parties defendant as a matter of right within the
meaning of CIT Rule 24(a) or, in the alternative, permissively
under Rule 24(b) for the "limited role of opposing plaintiffs'
Motion".
The motion could not be granted by the court, given its
governing statute, 28 U.S.C. §2631(j)(1)(B), to the effect that,
in an action such as this brought pursuant to 28 U.S.C. §1581(c),
(footnote continued)
Court No. 99-07-00441 Page 5
relief in regular course in cases reviewing administrative
determinations pursuant to section 751 of the Trade Agreements
Act of 1979, as amended. See, e.g., Zenith Radio Corp. v. Unit-
ed States, 710 F.2d 806 (Fed.Cir. 1983); Fenton Corporation v.
United States, CIT No. 00-01-00014 (preliminary injunction en-
tered Jan. 11, 2000).
Be Zenith and the innumerable cases that have followed
it as they have been, in the absence of government consent in
this action, the plaintiffs properly recognize in their papers
that this court
must consider four factors in determining whether to
grant . . . an injunction: (1) whether the movant will
suffer irreparable harm if the relief is not granted;
(2) whether the movant is likely to succeed on the
only an interested party who was a party to the
proceeding in connection with which the matter
arose may intervene, . . . as a matter of right[.]
Here, the record shows that the afore-named movants waived any
right to participate in the five-year review before the ITA, the
results of which are the predicate of this action. See Motion to
Intervene as Defendants-Intervenors, p. 2. See also 64 Fed.Reg.
at 30,318 (Background).
Furthermore, subsections (a) and (b) of CIT Rule 24 are both
premised upon "timely application", which the former defines for
an action like this as "no later than 30 days after the date of
service of the complaint". That date herein was July 23, 1999,
while the motion to intervene was only filed after the ITC deter-
mination on December 9, 1999. In fact, by that time, those
firms had properly obtained leave to intervene as parties de-
fendant in the action contesting that agency determination, CIT
No. 99-11-00716.
In any event, while participation by those parties in the
proceedings before that agency, albeit related to those under
review herein, could not be, and therefore was not, equated with
"good cause", as defined in Rule 24(a), their counsel was heard
herein amicus curiae.
Court No. 99-07-00441 Page 6
merits; (3) whether an injunction will be contrary to
the public interest; and (4) whether the balance of
hardships tips in the movant's favor. . . . No one
factor, taken individually, is necessarily dispositive.
. . . The weakness of the showing regarding one factor
may be overborne by the strength of the others. . . .
Plaintiffs' Motion for Preliminary Injunction, pp. 2-3. See FMC
Corporation v. United States, 3 F.3d 424, 427 (Fed.Cir. 1993),
and cases cited therein. Cf. 19 U.S.C. §1516a(c)(2).
A
The papers contain a supporting affidavit from the
Vice President of Construction Products Sales and Engineering
for plaintiffs Neenah and Deeter foundry companies. It avers,
in part, that:
6. Prior to the commencement of the sunset proceedings
concerning the 1980 CVD Order, prices of imported
castings from India averaged approximately 17.5
cents per pound, based on the floor price estab-
lished by the Indian Engineering Export Promotion
Council ("EEPC"). The EEPC sets the minimum export
price primarily to keep the Indian producers from
competing with each other . . .. In the past, in
addition to the existence of a floor price mecha-
nism, there was less competition among importers
as well because their pricing was dictated by dif-
ferent cash deposit rates that were in effect. If
the Order is revoked, Indian producers will no
longer have CVD duties assessed on their products.
Importers, therefore, will no longer have to pay
these CVD duties. This means that all Indian
producers will be on equal footing, in that coun-
tervailing duties will not be collected on any of
their exports, and importers will have even greater
flexibility in choosing which exports to purchase.
They will purchase primarily on the basis of price,
since these products are commodity goods. With
even more exporters to choose from, importers will
be able to seek even lower prices for these goods.
They, in turn will compete even more fiercely with
each other as well as against domestic producers.
This increased competition will cause prices to
spiral downward.
Court No. 99-07-00441 Page 7
7. The industry has already witnessed first-hand the
effect of the pending revocation. In a bid for
manhole castings solicited by the City of Des
Moines, G.C.I. Castings, which to the best of my
knowledge imports exclusively Indian castings, was
the lowest bidder by a substantial margin. . . .
The disparity in pricing between the Indian im-
porter and the three other bidders, including Nee-
nah, was drastic. Price differentials were as high
as 71 percent. In a fixed price, sealed bid pro-
curement, which is typical in our industry, the
bidder with the best price is almost always the
awardee. Thus, it is very likely that the domestic
industry will lose this contract, which would be a
loss of approximately $49,000.00 in revenue.
8. The selling practice of G.C.I. Castings, which is
described in paragraph 7, is not an isolated inci-
dent. Following the Commission's negative deter-
mination, other importers of Indian castings have
begun positioning themselves differently than they
have traditionally, cutting their prices further
in order to gain U.S. market share. In fact, many
of these importers have begun offering below-market
prices to our existing customers.
* * *
11. Sigma is another importer of Indian castings. To
the best of my knowledge, a large percentage, if
not all, of Sigma's imports consist of Indian
castings. Presently, both G.C.I. Castings and
Sigma are actively contacting our existing custom-
ers in the Midwest region and quoting them prices
for heavy Indian castings which are 10 to 30 per
cent lower than Deeter's prices. Based on a sample
of companies that we have contacted, more than a
dozen have already received offers for Indian
castings at extremely reduced prices. . . .
12. The foregoing examples of the recent extremely
aggressive pricing by these importers demonstrates
that revocation of the Order will cause a rapid
loss of domestic market share for the U.S. heavy
castings industry. Within one month after the
Commission's negative determination, our company
has already lost significant sales to importers of
Indian castings. If the Order is revoked, we can
project with reasonable certainty that our company
will lose either all or most of the high volume,
Court No. 99-07-00441 Page 8
"local standards" castings market, which would
reduce Neenah's revenue and profit . . . and . . .
Deeter's revenue and profit . . ..
13. Based on my extensive experience in the heavy cast-
tings industry, I can attest that heavy castings
are generally viewed as a commodity product and
that price is the most important factor in purchas-
ing decisions. In particular, the high volume
market, municipal bids, and large purchasers will
likely choose the unfair imports over domestic
castings. As the largest domestic supplier of
heavy castings, which includes approximately half
of the high volume, "local standards" castings,
Neenah Foundry has already felt the effect of the
lower-priced Indian imports. As most of the prod-
ucts produced by Deeter and the remaining domestic
producers are considered to be local standard,
heavy castings, I strongly believe that revocation
of the Order would place most of the domestic pro-
ducers' product line in jeopardy of being attacked
by aggressively lower-priced imports. Thus, Deeter
and the remaining domestic producers will likely
suffer even greater losses in revenue to Indian im-
porters. These lost sales will further reduce do-
mestic market share, decrease production, profits
and cash flow, making funds unavailable for neces-
sary capital expenditures and product development.
14. Finally, I am very familiar with the heavy castings
industry in India and can attest that Indian pro-
ducers have significant underutilized capacity to
produce heavy castings. In fact, this was recently
confirmed by the International Trade Commission,
which determined that Indian producers were operat-
ing at only half their capacity. (See Final Staff
Report dated September 29, 1999 at IV-13.) Thus, I
strongly believe that unfair imports from India can
and will increase significantly if the order is re-
voked and therefore cause irreparable harm to the
domestic industry.
Plaintiffs' Motion for Preliminary Injunction, Exhibit E (Nov.
22, 1999). In addition, counsel called to the witness stand at
the hearing the General Manager of Sales for plaintiff East Jor-
dan Iron Works, Inc., whose testimony was generally supportive of
the foregoing. He claimed that competition from Indian exports
Court No. 99-07-00441 Page 9
in the heavy-castings market has already increased substantial-
ly, at least in one area of the United States, referring to two
distributors in a major city which allegedly have switched to
imports from India. His company is thus not now selling to them
due to pricing beneath domestic cost of production. While ad-
mitting that some business had been lost prior to the ITA notice
of revocation, the witness claimed that it has become more dif-
ficult to sell domestic castings since then, and the difficulties
faced by East Jordan Iron Works in that one market hub may occur
in other regions due to consolidation of distribution channels.
He also pointed out that at least one new importer has entered
the market since the revocation.
This testimony has not been refuted. While some of it
is nonetheless speculative, given the recentness of the agency
decision(s) contested herein, no one can deny the speed with
which news thereof in Washington is known in Calcutta, and
throughout the world of international trade. Such dispatch
can and does cause harm sufficient to satisfy the standard for
federal judicial relief. But economic injury of the kind the
plaintiffs point to already herein is not necessarily "irrepar-
able". See, e.g., American Stevedoring Inc. v. United States
Customs Service, 18 CIT 331, 335, 852 F.Supp. 1067, 1071 (1994),
citing Sampson v. Murray, 415 U.S. 61 (1974); Wisconsin Gas Co.
v. Federal Energy Regulatory Comm'n, 758 F.2d 669 (D.C. Cir.
1985); Arbor Foods, Inc. v. United States, 8 CIT 355, 600 F.Supp.
Court No. 99-07-00441 Page 10
217 (1984). And it is that degree of harm that is necessary for
issuance of the immediate extraordinary equitable relief which is
a preliminary injunction. On the record developed by the plain-
tiffs, this court cannot and therefore does not find that their
injury is irreparable.
They place heavy emphasis on Zenith Radio Corp. v.
United States and FMC Corporation v. United States, supra. In
the later case, involving an ITA administrative review of an
antidumping-duty order and resultant determination to revoke
pursuant to section 751 of the Trade Agreements Act of 1979, as
amended, the Court of International Trade denied the domestic
plaintiffs a preliminary injunction, suspending liquidation
pending judicial review, on the grounds of failure to show ir-
reparable harm and likelihood of success on the merits. FMC
Corp. v. United States, 16 CIT 378, 792 F.Supp. 1285 (1992).
The court of appeals concurred as to the second ground, there-
by affirming the denial of the injunction, but it agreed with
the plaintiff-appellants that its prior decision in Zenith held
that "liquidation of 751 entries pending appeal constitutes ir-
reparable injury", 3 F.3d at 430, viz.:
. . . [T]he Zenith court concluded that:
[L]iquidation would indeed eliminate the only
remedy available to Zenith for an incorrect
review determination by depriving the trial
court of the ability to assess dumping duties
on Zenith's competitors in accordance with a
correct margin on entries in the '79-'80 re-
view period.
Zenith, 710 F.2d at 810.
Court No. 99-07-00441 Page 11
Furthermore, the court recognized that the harm
caused by liquidating the entries at issue would not be
simply economic but would extend to Zenith's statutory
right to obtain meaningful judicial review of the de-
termination. In light of 19 U.S.C. §§ 1516a and 1516a-
(c)(1) which call for immediate liquidation, the court
noted:
The statutory scheme has no provision per-
mitting reliquidation in this case or imposition
of higher dumping duties after liquidation if
Zenith is successful on the merits. Once liqui-
dation occurs, a subsequent decision by the trial
court on the merits of Zenith's challenge can have
no effect on entries of television receivers dur-
ing the '79-'80 review period. . . . Not even
prospective relief will be available to Zenith for
entries in the '79-'80 review period once liquida-
tion occurs.
Id.
The emphasis throughout Zenith is on the liquida-
tion of entries for a specific review period and the
potential loss of plaintiff's remedy, i.e., the right
to have the administrative determination reviewed, with
respect to that specific period. . . .
3 F.3d at 430-31 (footnote omitted).
Be that as it may, the focus of the administrative pro-
ceedings pursuant to sections 751 and 752, as amended and added
by the Uruguay Round Agreements Act and now at bar, is a broader
timeframe. Indeed, given plaintiffs' evidence adduced herein,
the primary pricing concern is not the past, or even the pre-
sent5, but the future. And of course, there is little evidence
5
The court notes in passing that the ITA notice of revo-
cation specifically invites "appropriately filed requests for
review" pursuant to section 751 "of subject merchandise entered
prior to the effective date of revocation". 64 Fed.Reg. at 61,-
603. Moreover, Congress has mandated agency expedition of new
petitions filed by domestic industries in the aftermath of "sun-
set" revocation of countervailing-duty orders. See 19 U.S.C. §
1671a(c)(1)(C) (1995).
Court No. 99-07-00441 Page 12
before the court at this time as to what merchandise will actu-
ally enter, and then someday be liquidated by the Customs Ser-
vice, before this action has run its complete course. Moreover,
any such liquidation following the ITA's determination to revoke
the underlying order would not preclude all meaningful relief,
as recognized by both courts in FMC.6 Finally, whatever the pre-
cise relief, it cannot be overlooked that the revocation herein
was based directly upon the requirement of sections 751(c) and
752 that the ITC consider the state of the domestic industry and
weigh whether or not revocation might cause it material injury.
In this instance, a majority of commissioners has found, among
other things, that
revocation of the order with respect to heavy construc-
tion castings from India would have no discernible ad-
verse impact on the U.S. industry . . .. The volume of
subject imports from India was 61.1 million pounds in
1978 and 94.4 million pounds in 1979, then declined
after issuance of the antidumping [sic] duty order in
1980. Imports of the subject merchandise from India
have now increased, notwithstanding the order, above
pre-order levels to 118.0 million pounds in 1997 and
115.8 million pounds in 1998, representing 17.9 per-
cent of apparent consumption in 1997 and 16.9 percent
of apparent consumption in 1998. Therefore, we find
that the volume of the subject heavy castings imports
from India is not likely to change to a significant
degree as a result of revocation of the countervailing
duty order. While Commerce has found that the Indian
subsidy programs constitute export subsidies as defined
6
See FMC Corp. v. United States, 16 CIT 378, 381, 792 F.-
Supp. 1285, 1287 (1992), aff'd, 3 F.3d 424, 431 (Fed.Cir. 1993).
Also, it must be emphasized that in that case, unlike this one,
there were past entries of merchandise during the review period
in question (1989-90) clearly left exposed to liquidation without
effective judicial review. Cf. supra, note 5; Torrington Co. v.
United States, 20 CIT 1293 (1996); Timken Co. v. United States,
11 CIT 504, 666 F.Supp. 1558 (1987).
Court No. 99-07-00441 Page 13
in Article 3.1(A) of the Subsidies Agreement, it has
also found that the likely countervailable subsidy
would range from 0.84 percent to 1.82 percent. We find
it unlikely that significant additional exports to the
U.S. would therefore result if the order were revoked.
Moreover, current imports from India already undersell
the U.S. product by considerable margins, indicating
that removal of the countervailing duty order would not
have an increased significant adverse price effect on
the domestic like product. The effect of any small
additional amounts of subject imports from India would
be further attenuated by the fact that some portion of
the U.S. market is governed by Buy American restric-
tions, and by the somewhat limited substitutability of
the Indian product with the U.S. domestic like product.
Accordingly, we find that removal of the order with
respect to India will have no discernible adverse im-
pact upon the U.S. industry.
USITC Pub. 3247, pp. 12-14 (footnotes omitted).
B
As indicated, the plaintiffs have also filed a com-
plaint, contesting this ITC determination, which is yet to be
briefed and then reviewed by the courts. For the moment, how-
ever, the decision not only diminishes plaintiffs' injury due
to any error on the part of the ITA, it also tends to undermine
any requisite showing of likelihood of success on the merits.
That is, in making an initial assessment of such probability,
the court must consider the determinations of both agencies,
given the regime enacted by Congress for "sunset" reviews. Here,
the court is unable to conclude that affirmance of plaintiffs'
specifications of ITA error would lead the ITC to vacate its
negative material-injury determination. Those specifications
are that (1) the ITA erroneously found that two subsidy programs
in India, the International Price Reimbursement Scheme ("IPRS")
Court No. 99-07-00441 Page 14
and the Cash Compensatory Support program ("CCS"), were termi-
nated in full; (2) the agency's finding with regard to IPRS was
due to faulty procedure, which failed to produce substantial
supporting evidence on the record; (3) the evidence as to CCS
does not show actual termination -- by implementing statute,
regulation or decree; (4) the ITA's findings as to both were
not verified, as mandated by the governing statute; and (5) the
agency ignored the history of the subsidy programs, erroneously
opting for rate(s) determined from its first review of the coun-
tervailing-duty order pursuant to section 751 rather than the
rates developed over time. See Plaintiffs' Motion for Prelimi-
nary Injunction, pp. 17-19. It is claimed that, if the
plaintiffs prevail on the merits of the[se] methodolo-
gical issues, the net countervailable subsidy found by
Commerce could increase substantially, from less than
two percent to double- or even triple-digit margins.
Id. at 19 n. 16. This may prove to be the case, but at this
stage of the action, given plaintiffs' brief at bar7, the court
does not discern a substantial likelihood thereof.
Moreover, if plaintiffs' position vis-á-vis the ITA
proves well-founded, an ITC reversal of direction would not be
a fortiori. To be sure, as quoted above, the commissioners took
note of the margins published by the ITA, as permitted by section
7
Cf. Plaintiffs' Motion for Preliminary Injunction, p. 19
n. 16 ("These methodological issues will be fully addressed in
plaintiffs' motion for judgment upon the agency record pursuant
to USCIT R. 56.2").
Court No. 99-07-00441 Page 15
752, 19 U.S.C. §1675a(a)(6) (1995), but they were not the only
factor for Commission consideration, or necessarily the most im-
portant. Compare ibid. with subsections (a)(2) (Volume), (a)(3)
(Price), (a)(4) (Impact on the industry), and (a)(5), which sets
forth the basis for determination as follows:
The presence or absence of any factor which
the Commission is required to consider . . . shall
not necessarily give decisive guidance with respect
to the Commission's determination of whether material
injury is likely to continue or recur within a reason-
ably foreseeable time if the order is revoked . . ..
Nevertheless, the plaintiffs contend in regard to the
ITC that, because its
determination was made by a vote of 4 in the nega-
tive and 2 in the affirmative, a change in one com-
missioner's decision from negative to affirmative
would result in continuation of the CVD order. See
19 U.S.C. §1677(11).
A change in one or more commissioners' decisions
could arise as a result of an upward increase in the
countervailing duty rate found by Commerce in at least
two respects. First, all of the commissioners voting
in the negative mentioned that their respective deter-
minations not to cumulate Indian heavy castings with
the other subject merchandise were tied to the low
margins ascribed by Commerce to the Indian imports.
Second, the Commission majority found it unlikely that
significant additional exports to the United States
would occur as a result of revocation of the order,
given Commerce's finding that the likely countervail-
able subsidy would range from 0.84 to 1.82 percent.
This finding was central to the majority's determi-
nation that revocation of the Indian CVD order would
not be likely to lead to continuation or recurrence
of material injury to the domestic industry within a
reasonably foreseeable time. This case thus presents
significant grounds, as in Borlem, for the Court to
find that remand to the ITC is appropriate if Com-
merce's net countervailable subsidy calculation in-
creases pursuant to this litigation, so that the
ITC may reconsider its determination in light of the
new information.
Court No. 99-07-00441 Page 16
Plaintiffs' Motion for Preliminary Injunction, pp. 38-40 (foot-
notes omitted). Indeed, the case cited, namely, Borlem S.A. -
Empreedimentos Industriais v. United States, 913 F.2d 933 (Fed.
Cir. 1990), aff'g, 13 CIT 535, 718 F.Supp. 41 (1989), does stand
for the proposition that the Commission has the authority, if
not obligation, to reconsider its determination in the light of
correction of a related determination of the ITA. And this court
does not doubt its jurisdiction, or that of the two agencies, in
this regard, but only after thorough parsing at bar of the claims
for correction, which is not yet possible.
The plaintiffs also focus herein on the views of one
of the four commissioners voting in the negative majority, in
particular, that the ITC
is precluded from exercising [it]s discretion [to cum-
ulate] if the imports from a country subject to review
are likely to have "no discernible adverse impact on
the domestic industry" upon revocation of the order.
19 U.S.C. §1675a(a)(7). Thus, under this provision,
the Commission must find that the subject imports from
a country will have a "discernible adverse impact on
the domestic industry" after revocation of the order
before cumulating those imports with other subject
imports.
USITC Pub. 3247, p. 10 n. 52 (emphasis in original). In assert-
ing that the three other members "have applied the statute prop-
erly"8, the plaintiffs claim the illogic of the above approach
"truly stand[s] the cumulation provision on its head." Plain-
8
Id. at 43.
Court No. 99-07-00441 Page 17
tiffs' Motion for Preliminary Injunction, p. 42. This may be
true, given its language9, legislative history and administrative
interpretation, but, again, there is no guarantee under the whole
statutory regime, supra, that a different approach to this one
factor would at least deadlock the commissioners, and thereby
continue the long-standing ITC affirmative material-injury deter-
mination.
C
To address briefly, which is all the plaintiffs do10,
the remaining two considerations for issuance of a preliminary
injunction, namely, the public interest and the hardships grant
or denial might entail, the court readily concurs that
the public interest is best served by ensuring that
Commerce and the ITC comply with the law, and that
9
As enacted by Congress in the Uruguay Round Agreements
Act, Pub. L. No. 103-465, §221(a), 108 Stat. 4809, 4867 (1994),
it stated:
(7) CUMULATION.-- For purposes of this subsection,
the Commission may cumulatively assess the volume and
effect of imports of the subject merchandise from all
countries with respect to which reviews under section
751(b) or (c) were initiated on the same day, if such
imports would be likely to compete with each other and
with domestic like products in the United States mar-
ket. The Commission shall not cumulatively assess the
volume and effects of imports of the subject merchan-
dise in a case in which it determines that such imports
are likely to have no discernible adverse impact on the
domestic industry.
See 19 U.S.C. §1675a(a)(7) (1995).
10
See, e.g., Plaintiffs Motion for Preliminary Injunction,
pp. 44-46.
Court No. 99-07-00441 Page 18
they interpret and apply laws and regulations cor-
rectly.11
It does not appear at this threshold, however, that either has
committed the kind of error which warrants immediate, extraor-
dinary, equitable relief. Furthermore, reinstating forthwith
the status quo ante, for which the plaintiffs pray, could well
tend to undermine the results of the difficult negotiations
which led to the Uruguay Round agreements12 and also the commit-
ments of the United States at the World Trade Organization. Cf.,
e.g., Washington Tariff & Trade Letter, Many CVD Orders May Face
Challenge in Wake of WTO Ruling, p. 3 (Jan. 3, 2000). In short,
the plaintiffs fail to persuade this court that the equities they
implicate tip decidedly in their favor.
III
In view of the foregoing discussion of plaintiffs'
failure to bear their burden of persuasion on the prerequisites
for immediate relief, their application for a preliminary injunc-
tion must be, and it hereby is, denied. Given this required de-
cision on the record developed, which does intimate concern on
the part of the plaintiffs that judicial review and any neces-
sary, resultant, further administrative proceedings could con-
sume, in regular course, much time -- free of the long-standing
countervailing-duty order, the parties in this and the related
11
Id. at 44.
12
See generally Terence P. Stewart, The GATT Uruguay Round -
A Negotiating History (1986-1992)- Volume I: Commentary (1993).
Court No. 99-07-00441 Page 19
action, CIT No. 99-11-00716, are hereby invited to present the
genuinely-dispositive issues in an expeditious manner.
So ordered.
Dated: New York, New York
January 20, 2000
Judge