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 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., 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 Administration, U.S. Department of Commerce ("ITA") from instructing 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" negotiations 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). Section 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 countervailing duty order . . . the [ITA] and the [International Trade] Commission . . . conduct a review to determine . . . whether revocation of . . . [such] order

. . . would be likely to lead to continuation or recurrence 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

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).

1675a (1995) (Special Rules for Section 751(b) and 751(c) Reviews). 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 recurrence 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 Castings From India, 64 Fed.Reg. 30,316 (June 7, 1999). Nonetheless,

the above-named plaintiff domestic U.S. manufacturers of competing merchandise commenced this action, alleging in their complaint, among other things, that the agency's determination of

certain subsidy rates is "erroneous, being significantly understated." 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,]
Court No. 99-07-00441 Page 4

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., Rangilal & 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)

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 injunction, 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 obtain judicial review and the full benefit of a favorable 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 
Court No. 99-07-00441 Page 5

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 determination % on December 9, 1999. In fact, by that time, those

firms had properly obtained leave to intervene as parties defendant 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.

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. United States, 710 F.2d 806 (Fed.Cir. 1983); Fenton Corporation v.

United States, CIT No. 00-01-00014 (preliminary injunction entered 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
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 Jordan 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 substantially, 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 admitting that some business had been lost prior to the ITA notice

of revocation, the witness claimed that it has become more difficult 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 "irreparable". 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 plaintiffs, 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 irreparable 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, thereby 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 irreparable 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

5

 The court notes in passing that the ITA notice of revocation 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 "sunset" revocation of countervailing-duty orders. See 19 U.S.C. §

1671a(c)(1)(C) (1995).

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 determination. 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 liquidation 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 proceedings 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 present5

, but the future. And of course, there is little evidence
Court No. 99-07-00441 Page 12

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).

before the court at this time as to what merchandise will actually enter, and then someday be liquidated by the Customs Service, 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 precise 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 construction castings from India would have no discernible adverse 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 percent 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
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 restrictions, 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 impact upon the U.S. industry.

USITC Pub. 3247, pp. 12-14 (footnotes omitted).

B

As indicated, the plaintiffs have also filed a complaint, contesting this ITC determination, which is yet to be

briefed and then reviewed by the courts. For the moment, however, 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

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").

and the Cash Compensatory Support program ("CCS"), were terminated 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 countervailing-duty order pursuant to section 751 rather than the

rates developed over time. See Plaintiffs' Motion for Preliminary Injunction, pp. 17-19. It is claimed that, if the

plaintiffs prevail on the merits of the[se] methodological 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
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 important. 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 reasonably 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 negative and 2 in the affirmative, a change in one commissioner'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 determinations 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 countervailable subsidy would range from 0.84 to 1.82 percent. 

This finding was central to the majority's determination 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 Commerce's net countervailable subsidy calculation increases 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

8

 Id. at 43.

Plaintiffs' Motion for Preliminary Injunction, pp. 38-40 (footnotes 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 cumulate] 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 asserting that the three other members "have applied the statute properly"8

, the plaintiffs claim the illogic of the above approach

"truly stand[s] the cumulation provision on its head." Plain-
Court No. 99-07-00441 Page 17

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 market. The Commission shall not cumulatively assess the

volume and effects of imports of the subject merchandise 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.

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 determination.

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 
Court No. 99-07-00441 Page 18

11 Id. at 44.

12 See generally Terence P. Stewart, The GATT Uruguay Round -

A Negotiating History (1986-1992)- Volume I: Commentary (1993).

they interpret and apply laws and regulations correctly.11

It does not appear at this threshold, however, that either has

committed the kind of error which warrants immediate, extraordinary, 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 commitments 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 injunction must be, and it hereby is, denied. Given this required decision on the record developed, which does intimate concern on

the part of the plaintiffs that judicial review and any necessary, resultant, further administrative proceedings could consume, in regular course, much time -- free of the long-standing 

countervailing-duty order, the parties in this and the related
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