Slip Op 13-44

UNITED STATES COURT OF INTERNATIONAL TRADE

WIND TOWER TRADE COALITION, Plaintiff,

v. UNITED STATES,

Defendant. Before: Leo M. Gordon, Judge

Court No. 13-00080 Court No. 13-00081 Court No. 13-00082

[Motions for preliminary injunction denied.] Dated: March 29, 2013 Alan H. Price, Daniel B. Pickard, Rober t E. DeFrancesco, III, Lori E. Scheetz, and Derick Holt, Wiley Rein LLP of Washi ngton, DC for Plaint iff Wind Tower Trade Coalition.

Joshua E. Kurland , Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC for Defendant United States. With him on the brief were Stuart F. Delery, Principal Deputy Assistant Atto rney General, Jeanne E. Davidson, Director, and Reginald T. Blades , Jr., Assistant Directo r. Of Counsel was Daniel J. Calhoun, Office of the Chief Counsel for Impo rt Administration, U.S. Department of Commerce of Washington, DC. Bruce M. Mitchell, Ned H. Marshak, Mark E. Pardo, Andrew B. Schroth, and Andrew T. Schutz, Grunfeld, Desiderio, Lebowitz, Silve rman & Klestadt LLP, of New York, NY for Defendant-Intervenors CS Wi nd China Co., Ltd., CS Wind Vietnam Co., Ltd., and CS Wind Corporation. Bruce M. Mitchell, Ned H. Marshak, and Kavita Mohan, Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP, of New York, NY fo r Defendant-Intervenor Titan Wind Energy (Suzhou) Co., Ltd. Mark D. Davis, Davis & Leiman P. C., of Washington, DC for DefendantIntervenor Chengxi Shipyard Co., Ltd.

Elliot J. Feldman and Michael S. Sna rr, BakerHostetler, of Washington, DC for Defendant-Intervenor Si emens Energy Inc.Court No. 13-00080 Page 2 Court No. 13-00081 Court No. 13-00082

OPINION and ORDER Gordon, Judge: These actions involve the administration of trade remedy provisional measures (cash deposits) pursuant to Sections 706(b) and 736(b) of the Tariff Act of 1930, as amended, 19 U.S.C. §§ 167 1e(b) & 1673e(b), 1 by the U.S. Department of Commerce (“Commerce”) at the conclusion of the antidumping and countervailing duty investigations covering utility scale wind towers from the People’s Republic of China (“China”) and the anti dumping investigation covering that same

merchandise from the Socialis t Republic of Vietnam (“Vietn am”). Utility Scale Wind Towers from the People’s Republic of Chin a, 78 Fed. Reg. 11,14 6 (Dep’t of Commerce Feb. 15, 2013) (antidumping duty order); Utility Scale Wind Towers from the People’s Republic of China, 78 Fed. Reg. 11,152 (Dep’t of Commerce Feb. 15, 2013) (countervailing duty order); Utility Scale Wind Towers from the Socialist Republic of Vietnam, 78 Fed. Reg. 11,150 (Dep’t of Comme rce Feb. 15, 2013) (antidumping duty order) (collectively, “Orders”). In those investigations the U.S. International Trade Commission (“ITC”) found injury to the domestic industry in an evenly divided vote (3-3). Utility Scale Wind Towers from China and Vietnam, 78 Fed. R eg. 10,210 (Int’l Trade Comm’n Feb. 13, 2013); see also Utility Scale Wind Towers from China and Vietnam,

USITC Inv. Nos. 701-TA-486 and 731-TA-1196 (Final), USITC Pub. 4372 (Feb. 2013); see also 19 U.S.C. § 1677(11) (tie-breaki ng provision). Among t he three affirmative

1 Further citations to the Tariff Act of 1930, as amended, are to the re levant provision of Title 19 of the U.S. Code, 2006 edition.Court No. 13-00080 Page 3 Court No. 13-00081 Court No. 13-00082

votes, two Commissioners found material inju ry, with the third finding threat, but no material injury in the absence of provisiona l measures. 78 Fed. R eg. 10,210 at n.2. Commerce, in turn, has said that it will in struct U.S. Customs and Border Protection (“Customs”) to release the cash deposits on subject merchandise entered before the

date of the ITC’s final determination in accordance with 19 U.S.C. §§ 1671e(b)(2) and 1673e(b)(2). See Orders. Plaintiff seeks preliminary injunctions to (1) enjoin Commerce from terminating the suspension of liquidatio n and ordering the refund of cash deposits for entries of subject merchandise that were entered or withdrawn from war ehouse for consumption prior to February 13, 2013; and (2) enjoin Cust oms during the pendency of this litigation before this court, including any subs equent remands and subsequent appeals, from discontinuing the suspension of liquidation and refunding ca sh deposits on the subject

merchandise. Pl.’s Amend. Mot for Temporary Restraining Or der & Prelim. Inj. at 1, ECF No. 15 (Court No. 13-00080). The court initially denied Plaintiff’s applic ations for temporary restraining orders (“TRO”) and preliminary injunctions becaus e it believed Plaintiff had not made an adequate showing on the likelih ood of success on the merits. Order Denying Temp. Restraining Order, Feb. 28, 2013, ECF No. 21 (Court No. 13-00080) (“Feb. 28 Order”). Plaintiff then submitted a supplemental res ponse further explaining its position on its likelihood of success. Pl.’s Resp. to the Court’s Mem. and Order, Mar. 1, 2013, ECF No. 22 (Court No. 13-00080) (“Pl.’s Supp. Br.” ). Although the cour t still harbored doubtsCourt No. 13-00080 Page 4 Court No. 13-00081 Court No. 13-00082

about Plaintiff’s showing on the likelihood of success, the court ente red a TRO to allow the other interested parties an opportunity to respond to Pl aintiff’s motions. Second Mem. and Order on Pl.’s Application for a TR O and Prelim. Inj., Mar. 4, 2013, ECF No. 23 (Court No. 13-00080) (“Mar. 4 Order”). Defendant and De fendant-Intervenors, CS Wind Corporation, CS Wind China Co., Ltd., and CS Wind Vietnam Co., Ltd. (collectively “CS Wind”), have since express ed their opposition. Def.-Intervenors’ Opp’n

to Pl.’s Mot. for Prelim . Inj., Mar. 8, 2013, ECF No. 25; Def.’s Opp’ n to Pl.’s Mot. for Prelim. Inj., Mar. 15, 2013, ECF No. 38. Fo r the reasons set forth below, the court will enter an order denying Plaintiff’s motions. I. Standard Governing Issuance of Preliminary Injunction To prevail on a motion for a preliminary inj unction, the movant mu st establish that (1) the movant is likely to succeed on the merits, (2) the movant is likely to suffer irreparable harm in the absence of preliminar y relief, (3) the balance of equities tips movant’s favor, and (4) an injunction is in the public interest. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 ( 2008); American Signature, Inc. v. United St ates, 598 F.3d 816, 823 (Fed. Cir. 2010). In antidumping and counterva iling duty cases preliminary injunctions against liquidation have become almost automatic due to the retrospec tive nature of U.S. trade remedies, see 19 C.F.R. § 351.212.(a), the length of the judicial review process, and the cruciality of unliquidated entries for judicial review, see Z enith Radio Corp. v. United

States , 710 F.2d 806, 810 (Fed. Cir. 1983); SKF USA, Inc. v. United States , 512 F.3dCourt No. 13-00080 Page 5 Court No. 13-00081 Court No. 13-00082

1326, 1329 (Fed. Cir. 2008) (“The Zenith rule renders a court action moot once liquidation occurs.”); see also Qingdao Taif a Group Co. v. United States, 581 F.3d 1375, 1381-82 (Fed. Cir. 2009) (“[T]he court . . . recognizes that 19 U.S.C. § 1516a(c)(2) envisions the use of prelimi nary injunctions in the antidum ping context to preserve proper legal options and to allow for a full and fair review of duty determination before liquidation.”). The court has managed the irreparability of liquidation by employing a sliding scale that requires a somewhat lower burden on the likelihood of success. Id. In most antidumping and countervail ing duty cases, motions for preliminary injunctions are typically on consent. Cf. Ugine & Alz Be lgium v. United Stat es, 452 F.3d 1289, 1297 (Fed. Cir. 2006) (reversing denial of preliminary injunction des pite all parties consenting “to entry of a preliminar y injunction prior to the trial court' s ruling”). The other parties in

this action have not consented to Plaintiff’s motions. Notwithstanding the near autom aticity of preliminary in junctions in antidumping and countervailing duty cases, th ey are not awarded as of ri ght. See Qingdao Taifa, 581 F.3d at 1382 (acknowledging Supreme Court’s “emphasis on the importance of the likelihood of success in the pr eliminary injunction calculus” in Munaf v. Geren, 553 U.S. 674, 689-690 (2008)). The movant must still demonstrate at least a fair chance of success on the merits. Id. (quoti ng U.S. Ass'n of Im ps. of Textiles & Apparel v. Dep't of Commerce, 413 F.3d 1344, 1347 (F ed. Cir. 2005)); FMC Corp. v. United States, 3 F.3d 424, 427 (Fed. Cir. 1993) (“Absent a showing that a movant is likely to succeed on theCourt No. 13-00080 Page 6 Court No. 13-00081 Court No. 13-00082

merits, we question whether the movant can ever be entitled to a preliminary injunction unless some extraordinary injury or str ong public interest is also shown.”).

II. Discussion A. Background Following a prelimin ary affirmative determination by Commerce, provisional measures take effect pursuant to 19 U.S.C. §§ 1671b(d)(2), 1673b(d)(2), which suspend liquidation and require cash deposits fo r entries of merchandise covered by the investigation. These remedies are provisiona l because at that point in the investigation only half of the trade remedy equ ation has been satisfied; the other half is the ITC’s final injury determination, see 19 U.S.C. §§ 1671(a )(2), 1673(2), which dictates whether the provisional cash deposits ripen into antidumpi ng or countervailing dut ies, see 19 U.S.C. §§ 1671e(b) and 1673e(b). An ITC final injury determination compri ses the votes of the six individual Commissioners, each of whom chooses from among a menu of st atutorily defined choices (no injury, material injury, threat of material injury, or material retardation of establishment of industry) . 19 U.S.C. §§ 1671d(b)(1), 1673d(b)(1), 1677(7); see also U.S. Steel Group v. United States, 96 F.3d 1352, 1360 (Fed. Cir. 1996) (“The Commission makes its determinations by ta llying the votes of the six individual commissioners.”). When a Commissi oner votes for threat of material injury, that

Commissioner must also make an additi onal finding about whether the domestic industry would have been materially injured in the absence of (or “but for”) theCourt No. 13-00080 Page 7 Court No. 13-00081 Court No. 13-00082

provisional measures. 19 U.S.C. §§ 1671d( b)(4)(B), 1673d(b)(4)(B). This additional finding correlates with sections 1671e(b) and 1673e(b), and depending on the other Commissioners’ votes, may affe ct whether the cash deposits provisionally in place are refunded under the “special rule” or reta ined under the “general rule” (and applied against any antidumping and count ervailing duties imposed). The additional “but for” findings, when relevant, enable Commerce to identify whether the ITC has determined that a domestic industry was materially inju red during the provisional measures period coincident with any sales at le ss than fair value or counte rvailable subsidies, thus completing the trade remedy equation for entri es covered by provisional measures. Plaintiff challenges Commerce’s applic ation of 19 U.S. C. §§ 1671e(b) and 1673e(b), which establish a “general” and “s pecial” rule for handling any provisional measures in place when antidumping or count ervailing duty orders issue. The “general rule” applies if the ITC finds material injury or threat with an affirmative “but for” finding, and duties are imposed on any provisionally suspended entries. 19 U.S.C. §§ 1671e(b)(1), 1673e(b)(1). Alternatively, t he “special rule” applies if the ITC finds threat of material injury with a negative “but for” finding, or materi al retardation of the establishment of an industry, and any prov isional cash deposits are refunded because

Commerce’s orders are effective from t he publication date of the ITC’s final determination. 19 U.S.C. §§ 1671e(b)(2), 1673e(b)(2). 2

2 Commerce has combined the two operative rules into one regulation, 19 C.F.R. § 351.211(b)(3). Although the regulation is somewhat mo re accessible and readableCourt No. 13-00080 Page 8 Court No. 13-00081 Court No. 13-00082

The general and special rules of secti ons 1671e(b) and 1673e(b) were enacted by the Trade Agreements Act of 1979, P ub. L. No. 96-39, 93 Stat. 144, which implemented the United States’ international commitments at the conclusion of the Tokyo Round of Multilatera l Trade Negotiations, includ ing the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade addressing antidumping duties, and the Agreement on Inte rpretation and Application of Articles VI, XVI, and XXIII of the General Agreement on Tariffs and Trade addressing countervailing duties. The purpose of sections 1671e (b) and 1673e(b) was to implement the provisions of those agreements prohibiting the collection of duties during the provisional measures period “unless the final determination is that there is materi al injury or threat of material injury which, but for provisi onal measures, e.g., sus pension of liquidation, during the investigation, would have been material injury.” S. Rep. No. 96-249, at 59, 77 (1979), reprinted in 1979 U.S. C.C.A.N. 381, 463 (emphasis added). Both of those agreements recognize that, without a finding of material injury or threat with an affirmative “but for” finding, there is no a ffirmative injury determi nation to support the imposition of duties during the provisional measures period. See Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade (Apr. 12,

than sections 1671e(b) and 1673e(b), it essentially just paraphr ases them, meaning that the issue here does not implicate Commerce’s interpretation of its regulation, but its application and interpretation of the statutory provisions them selves. See Gonzales v. Oregon, 546 U.S. 243, 257 (2006) (“the existence of a parroting regulation does not change the fact that the question . . . is not the meaning of the regulation but the meaning of the statute.”).Court No. 13-00080 Page 9 Court No. 13-00081 Court No. 13-00082

1979), GATT B.I.S.D. (26th Supp.) at 171, 181 (1980) (“Provisional measures may be taken only after a preliminary affirmative finding has been made that there is dumping

and that there is suffici ent evidence of injury, as provi ded for in (a) to (c) of paragraph 1 of Article 5.”); Agreement on Interpretation a nd Application of Arti cles VI, XVI and XXIII of the General Agreement on Tariffs and Trade (Apr. 12, 1979), GA TT B.I.S.D. (26th Supp.) at 56, 63 (1980) (“Pr ovisional measures may be ta ken only after a preliminary affirmative finding has been made that a subs idy exists and that there is sufficient evidence of injury as provided for in Article 2, paragraph 1 (a) to (c).”). 3 The statute does not explic itly address whether the gen eral or special rule applies to the fragmented ITC voting pattern presented in these cases: an evenly

divided affirmative determinat ion comprising three negative votes and three affirmative votes, with two commissioners voting for materi al injury and one voting for threat with a

3 The same restrictions on the imposition of dut ies during the provisional measures period carried forward into the current Ag reement on Implementat ion of Article VI concerning antidumping dutie s and the Agreement on Subs idies and Countervailing Measures, both adopted at the c onclusion of the Uruguay R ound of Multilateral Trade Negotiations in 1994. “Article 10 provides several exceptions to this general principle that . . .{“antidumping duties, in the case of a final dete rmination, will apply to imports entered after” the final determinat ion is made} . . . that permi t the national authorities to apply final duties to imports entered at an earlier stage of an investigation. First, as under current U.S. law, nati onal authorities may apply definit ive antidumping duties from the date of application of provisional measures if the final injury determination is based on present material injury. Second, as under current law, national authorities may apply definitive antidumping duties fr om the date of applic ation of provisional measures if the final injury determination is based on threat of material injury if th e authorities determine that but for the application of provisiona l measures injury would have occurred.” Uruguay Round Amendments Act, St atement of Administrative Action, H.R. Doc. No. 103-316, at 816 (1994), reprinted in 1994 U.S.C.C.A.N. 4040, 4158.Court No. 13-00080 Page 10 Court No. 13-00081 Court No. 13-00082

“but for” negative material injury finding. It is, however, a voting pa ttern that the court has addressed once before in MBL (USA) Co rp. v. United States, 16 CIT 108, 787 F. Supp. 202 (1992) (“MBL”).

In MBL the court reviewed Commerce’s interpretation of 19 U.S.C. § 1673e following an ITC injury determination with the same fragmented voting pattern here. There were three negative votes and three affirma tive votes, including two for material injury, and one for threat of material injury with a “but for” negative finding pursuant to 19 U.S.C. § 1673d(b)(4)(B). Commerce did not apply the special rule of section 1673e(b)(2) despite the 4 negative votes of materi al injury for the provisional measures period, and instead planned to apply the general rule of 19 U.S.C. § 1673e(b)(1) and impose duties on the suspended entries. The court reviewed Commerce’s interpretation of 19 U.S.C. § 1673e(b) under t he second prong of Chev ron, U.S.A., Inc. v. Natural Res. Def. Council, Inc. , 467 U.S. 837, 842–45 (1984) , and determined that Commerce’s interpretation was an unreasonable app lication of the stat ute to which the

court could not defer. The court noted Commerce’s position of ignoring the three negative votes and focusing on the three affirmative votes: “Commerce first det ermines whether the

Commission as a whole has made an affirmati ve or a negative determination. If

Commerce determines that the Commission has made an affirmative determination, it then analyzes the affirmative votes of the Commissioners to dete rmine the appropriate date for the imposition of anti dumping duties.” MBL, 16 CIT at 113-14, 787 F. Supp. atCourt No. 13-00080 Page 11 Court No. 13-00081 Court No. 13-00082

207–08 (quoting government brief at 15-16). The court questioned the reasonableness of this approach: If this was the approach, whether based on agency practice or not, the court is not persuaded that it l ed to the proper adherence to 19 U.S.C. § 1673e(b). To be sure, subsection (2) thereof does not refer to a “negative” determination; it refers to a “final determination” of the Commission. And, while the final de terminations in these cases were affirmative under section 1677(11), if two of the three commissioners reporting negative views had considered th e facts as constituting instead threats of material injury and t hen made negative but-for findings, as Commissioner Rohr did, the special rule of subsection (2) would have been applied. Yet, although those thre e actually reach ed outright negative conclusions, the dictat e of section 1673e(b)(1) was apparently followed by the ITA—in the face of the fact that a majority of the ITC members had found that the domestic industry was not being materially injured, and would not have been during the time in question in the absence of provisional relief. Inherent in such negative views is the realization that antidumping duties will not be imposed, just as affirmative views can signify imposition of such duties from the date of a pr eliminary less-thanfair-value determination rather than fr om the date of a final decision on material injury. Id. The MBL court did some simple ma th and could not understand how two votes for and four votes against material injury duri ng the provisional measures period could reasonably justify application of the general rule. In this case respondents alerted Co mmerce to MBL and argued that Commerce should therefore apply the special rule. Plai ntiff responded, arguing that there were conflicting precedents at the U. S. Court of International Trade and that Commerce had a practice of applying the general rule to the voting pattern in question. Commerce ultimately applied the special rule, expressl y noting the holding of MBL in each of the Orders. Utility Scale Wind Towe rs from the People’s Republic of China, 78 Fed. Reg.Court No. 13-00080 Page 12 Court No. 13-00081 Court No. 13-00082

11,146, 1147 n.8 (Dep’t of Co mmerce Feb. 15, 2013) (ant idumping duty order) (other footnotes omitted); see also Utility Scale Wind Towers from the People’s Republic of China, 78 Fed. Reg. 11,152, 11,153 n.8 (Dep’t of Commerce Feb. 15, 2013) (countervailing duty order); Utility Scale Wind Towers from the Socialist Republic of Vietnam, 78 Fed. Reg. 11,150, 11,151-52 n.11 (Dep’t of Commerce Feb. 15, 2013) (antidumping duty order).

B. Likelihood of Success on the Merits

Plaintiff contends that Commerce err ed in applying the special rule and must instead follow the general rule of sections 1671e(b)(1) and 1673e(b)(1). Given MBL, the court was initially skeptical of any likel ihood of success on this issue. See Feb. 28 Order; Mar. 4 Order. Having since reviewed the responses of Defendant and CS Wind, the court is now even further persuaded that this issue is just not winnable. Beginning from the premise that C ongress did not address the specific ITC voting pattern presented here, it is not difficult to sust ain Commerce’s interpretation of sections 1671e(b) and 1673e(b) as a reasonab le construction of the statute to which the court

must defer.

When the court examines the lawfulness of Commerce’s statutory interpretations, it employs the two-pronged test established in Chevr on, U.S.A., Inc. v. Natural Res. Def. Council, Inc. , 467 U.S. 837, 842–45 (1984). The court first examines “whether Congress has directly spoken to the precise question at issue,” and if it has, the agency

and the court must honor the clear intent of Congress. Id. at 842-43. If, however, “theCourt No. 13-00080 Page 13 Court No. 13-00081 Court No. 13-00082

statute is silent or ambiguous with respect to the sp ecific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.” Id. at 843. “Any reasonable construction of the statute is a permissible construction,” Timken Co. v. United St ates, 354 F.3d 1334, 1342 (Fed. Cir. 2004) (citation and quotation marks om itted), and Commerce’s “inter pretation governs in the absence of unambiguous statutory language to the contra ry or unreasonable resolution of language that is ambiguous.” United States v. Eurodif S.A., 555 U.S. 305, 316 (2009) (citation omitted). To dete rmine whether Commerce's interpretation is reasonable, the court “may look to ‘the expre ss terms of the provisions at issue, the objectives of those provisions, and the objectives of the anti dumping scheme as a whole.’” Wheatland

Tube Co. v. United States , 495 F.3d 1355, 1361 (Fed. Cir. 2007) (quoting NSK Ltd. v. United States, 26 CIT 650, 654, 217 F. Supp. 2d 1291, 1297 (2002)). Commerce’s application of the special rule to the fragmented ITC voting pattern here (3 negative, 2 material injury, 1 threat plus “but for” negative) flows reasonably from the specific stat utory provisions, their purposes, and the statute as a whole, as the court explained in MBL. The statute states that imposing an earlier effective date for the orders under the general rule is proper when the ITC “finds mate rial injury or threat of material injury [with an affirmative “but fo r” determination.]” 19 U.S.C. §§ 1671e(b)(1), 1673e(b)(1). And here, although the Commi ssion reached an affirmative injury determination, it was fragment ed with a majority of four Commissioners finding that the domestic industry was not materially injured during the provisional measures period.Court No. 13-00080 Page 14 Court No. 13-00081 Court No. 13-00082

This was the same circumstance analyzed and explained 20 years ago by the court in MBL. Commerce’s decision to apply the spec ial rule consistent with the analysis of

MBL is reasonable. Plaintiff insists that the specia l rule cannot apply because only one Commissioner voted for threat. Pl.’s Supp. Br. at 10. Plaintiff misunderstands the consequences of a fragmented ITC affirma tive determination. The fragmented determination here necessarily in volved a finding that the domestic industry was at least threatened with material injury because in addition to the one thr eat finding, the two broader material injury findings inherently enta il the narrower finding of threat. Cf. MBL, 16 CIT at 113-14, 787 F. Supp. at 208 (explaining that three negative determinations inherently entailed negative “but for” determinations as well). And in trying to resolve the proper treatment of the provisional measures under the general or special rule, it was reasonable for Commerce to interpre t the ITC’s fragmented affirmative determination based upon the narrower ground of the one vote for threat plus the negative “but for” determination rather than the two Commissioners’ material injury votes that were outnumbered by the four Commissioners voti ng against material injury during the provisiona l measures period.

Plaintiff also contends that there ar e conflicting precedents at the Court of International Trade. Pl.’s Supp. Br. at 8-9. The court do es not agree. There is one applicable precedent covering the ITC voting patte rn presented in this case: MBL. The earlier case upon which Plaintiff relies, Meta llverken Nederland B.V. v. United States,Court No. 13-00080 Page 15 Court No. 13-00081 Court No. 13-00082

13 CIT 1013, 728 F. Supp. 730 (1989), did not in volve the same ITC voting pattern, nor did it involve Commerce’s interpretation of an ITC final determination, as Commerce was not a party to the action. The court in MBL exami ned the Metallverken decision and found it of limited persuasiv e weight on the question of the proper treatment of provisional measures. MBL, 16 CIT at 111-12, 787 F. Supp. at 206. Finally, Plaintiff contends that Commerc e’s application of the special rule represents an unexplained departure from agency practice. Pl.’s Supp. Br. at 8, 12. Plaintiff attempts to identify an agency “pra ctice” from Silicom anganese from Brazil, 59 Fed. Reg. 66,003 (Dep’t of Commerce Dec. 22, 1994) (antidum ping duty order), a single instance post-dating MBL in which Co mmerce appears to have treated the same ITC voting pattern as requiring imposition of duties from the date of suspension of liquidation following a preliminar y affirmative determination by Commerce. Of note, the lone respondent in the invest igation withdrew its participat ion. See Silicomanganese from Brazil, 59 Fed. Reg. 55,432, 55,433 (Dep’t of Comme rce Nov. 7, 1994) (final antidumping determination). Despite Comme rce not explaining its reasoning, or mentioning MBL, see Silicom anganese from Brazil, 59 Fed. Reg. at 66,003- 04, Plaintiff overstates this single, nearly 20-year -old post-MBL proceeding as Commerce “disagree[ing] with the [C]ourt’s finding in MBL” and establishing or continuing an operative agency “practice” regarding provisi onal measures. Pl.’s Supp. Br. at 12. More fundamentally though, Commerce’s interpretation of the statute in Silicomanganese from Brazil does not preclude Commerce’s interpretation here. To theCourt No. 13-00080 Page 16 Court No. 13-00081 Court No. 13-00082

extent Silicomanganese from Braz il, a single case from 19 years ago, can be said to establish any sort of post-MBL agency practi ce, Commerce provided an explanation in the Orders citing directly to MBL as to why interpreting the statute in a different manner

is reasonable. Under the Chevron framework initial agen cy interpretations are not “instantly carved in stone” and may change so long as an agency provides a reasonable basis for doing so. Rust v. Sullivan, 500 U.S. 173, 186-87 (1991); see also National

Cable & Telecomms. Ass’n v. Brand X In ternet Servs., 545 U.S. 967, 981 (2005) (“Agency inconsistency is not a basis for dec lining to analyze the agency’s interpretation

under the Chevron framework. . . . For if th e agency adequately explains the reasons for a reversal of policy, ‘change is not invalidating, since the w hole point of Chevron is to leave the discretion provided by the ambigui ties of a statute with the implementing agency.’” (internal citations omitted)). In issuing the Orders Commerce provided an interpretation of the statute that has al ready been validated by the court in MBL.

Given the reasonableness of Commerce’s application of the special rule, the court cannot direct Commerce by affirmative in junction to apply the general rule, leaving

Plaintiff without a fair chance of success in this action. C. Irreparable Injury As noted above, parties tend to establish irreparable injury fairly easily in trade cases because of the negative consequences of liquidation. Here , the court believes that Plaintiff has established such injury because once the entries covered by the provisional measures are liqui dated, the court c annot provide any meaningful relief forCourt No. 13-00080 Page 17 Court No. 13-00081 Court No. 13-00082

Plaintiff. Both Defendant and CS Wind suggest t hat Plaintiff may not satisfy the Zenith standard of irreparable harm bec ause the underlying proceeding was an investigation,

not an administrative review. See American Spring Wire Corp. v. United States, 7 CIT 2, 5, 578 F. Supp. 1405, 1408 (1984) (if court is reviewing “a final agency determination under 19 U.S.C. §§ 1303, 1671d or 1673d, the party seeking injunctive relief must make some showing of immediate and irreparable injury beyond the mere invocation of

Zenith

. ”). The court, though, does not see much merit in this contention and believes Plaintiff has easily satisfied the Zenith standard. D. Balance of Equities Although Plaintiff appears to have establish ed irreparable injury in the absence of an injunction, and this usually is enough to tip the equities in the movant’s favor in a trade case, here, in addition to the problem of Plaintiff failing to establish a likelihood of success on the merits, the unique aspects of provisional measures adds additional

considerations to the balanc e of the equities. Provisio nal measures are accorded

distinct treatment in the ant idumping and countervailing duty laws. They take effect when Commerce issues a preliminary affirmat ive less than fair value or countervailing duty determination, and generally “may not remain in effect for more than 4 months.” 19 U.S.C. §§ 1671b(d), 1673b(d). An injunction against liqui dation for the pendency of the litigation would necessar ily prolong the provisional measures well beyond their statutory limits. Anot her characteristic of provisional measures is that there is no interest on refunds of provisional cash depos its under the special ru le. See 19 U.S.C.Court No. 13-00080 Page 18 Court No. 13-00081 Court No. 13-00082

§§ 1671e(b)(2), 1673e(b)(2), 1677(g); see also Dy nacraft Indus., Inc. v. United States , 24 CIT 987, 118 F. Supp. 2d 1286 (2000). Therefore, the longer the entries covered by the provisional remedies remain unliqui dated, the longer importers who have paid provisional cash deposits are denied access to their refunds without any possibility of obtaining interest.

Given the weakness of Plaint iff’s arguments on the merits, the court is concerned that issuance of preliminary injunctions against liquidation here may be a misuse of the court’s equitable power by keeping the provisional meas ures in place beyond their prescribed 4-month period and by depriving importers of the time value of their provisional cash deposits. T he court therefore does not belie ve that the balance of the equities favors the movant.

E. Public Interest A preliminary injunction is generally in the public interest in or der “to maintain the status quo of the unliquidated entries until a final resoluti on of the merits.” Smith– Corona Group v. United States, 1 CIT 89, 98, 507 F. Supp. 1015 (1980). Nevertheless,

the court does not believe it is in the public interest to i ssue preliminary injunctions in

actions where there is no likel ihood of success on the merits.

III. Conclusion For the foregoing reasons, the court does not believe that issuance of preliminary injunctions in these actions is appropr iate. Accordingly, it is herebyCourt No. 13-00080 Page 19 Court No. 13-00081 Court No. 13-00082

ORDERED that Plaintiff’s motions for prelimi nary injunctions are denied; and it is

further

ORDERED that the Temporary Restraining Orders issued March 4, 2013 are

dissolved.

/s/ Leo M. Gordon Judge Leo M. Gordon

Dated: March 29, 2013 New York, New York