# United States Court of Appeals **for the Federal Circuit**

______________________

WIND TOWER TRADE COA LITION, Plaintiff

- Appellant,

v.

UNITED STATES, Defendant

- Appellee,

AND

CS WIND CHINA CO., LTD., CS WIND CORPORATION, AND TITAN WIND ENERGY (SUZHOU) CO., LTD.,

Defendants

- Appellees,

AND

CHENGXI SHIPYARD CO. , LTD., Defendant

- Appellee,

AND

SIEMENS ENERGY, INC.

, Defendant

- Appellee

.

______________________

2013

- 1303

______________________

Appeal from the United States Court of International
Trade in No s

. 13

- CV

- 0080, 13

- CV

- 0081, and 13

- CV

- 0082, Judge Leo M. Gordon.WIND TOWER TRADE v. US 2

______________________

Decided: January 24, 2014

______________________

R OBERT E. D E F RANCESCO

, III

, Wiley Rein, LLP, of Washington, DC, argued for plaintiff

- appellant. With him
on the brief were A LAN H. P RICE

, D ANIEL B. P ICKARD

, and
U SHA N EELAKANTAN

.

J OSHUA E. K URLAND , Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for
defendant

- appellee, United States. With him on the brief
were S TUART F. D ELERY , Assistant Attorney General,

J EANNE E. D AVIDSON , Director, and R EGINALD T. B LADES

, J R

. , Assistant Director. Of counsel on the brief was

D ANIEL J. C ALHOUN , Attorney, Office of the Chief Counsel for Import Administration, United States Department o f Commerce, of Washington, DC.

N ED H. M ARSHAK

, Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt, of New York, New York, argued f or defendant s- appellees, CS Wind China Co., Ltd., et al.
With him on the brief were B RUCE M. M ITCHELL , M AX F.
S C HUTZMAN

, A NDREW B. S CHROTH

, and K AVITA M OHAN

. Of counsel was A NDREW T HOMAS S CHUTZ , of Washington,
DC.

E LLIOT J. F ELDMAN , Baker Hostetler, LLP , of Washington, DC, argued for defendant

- appellee, Siemens Energy, Inc. With him on the brief was M ICHAEL S.
S NARR

.

M ARK D AVID D AVIS , Davis & LEiman, PC, of Washington, DC, for defendant

- appellee Chengxi Shipyard Co., Ltd.

______________________WIND TOWER TRADE v. US 3

Before N EWMAN

, M OORE

, and W ALLACH

, Circuit Judges

.
W ALLACH

, Circuit Judge

. The Wind Tower Trade Coalition (“Appellant” or the “Coalition”), a group of domestic manufacturers of utility scale wind towers, appeals the decision of the United
States Court of I nternational Trade (“CIT”) denying its motions for preliminary injunctions. See Wind Tower Trade Coal. v. United States, 904 F. Supp. 2d 1349 (Ct. Int’l Trade 2013). T his court affirms.

B ACKGROUND

After receiving petitions filed by the Coalition, the
Uni ted States Department of Commerce (“Commerce”) initiated antidumping and countervailing duty investigations covering utility scale wind towers (“subject merchandise”) from the People’s Republic of China (“China”) and an antidumping investigation covering

s ubject merchandise from the Socialist Republic of Vietnam (“Vietnam”). The antidumping and countervailing duty statutes 1 require Commerce and the
United States International Trade Commission (“ITC”) to conduct parallel investigations to determine whether t he application of one or both of these remedial duties is

1 The antidumping statute governs the application of remedial duties to foreign goods sold, or likely to be sold, in the United States “at less than fair value,” 19 U.S.C. § 1673 (pertaining to the “imposition of antidumping duties”), while the countervailing duty
statute governs the application of remedial duties to subsidized imports, 19 U.S.C. § 1671 (pertaining to the “impos ition of countervailing duties”). These sections

con tain parallel provisions and much of the governing language is identical.WIND TOWER TRADE v. US 4

warranted. 19 U.S.C. §§ 1671a

– 1671d, 1673a

– 1673d (2006)

. Pursuant to 19 U.S.C. §§ 1671b(a) and 1673b(a), the ITC issued a preliminary injury determination that there
was a reasonable indication of t hreat of material injury to a domestic industry by reason of imports of subject
merchandise from China and Vietnam. Commerce then issued a preliminary affirmative countervailing duty determination with respect to imports of subject merchandise from China and preliminary affirmative antidumping duty determinations with respect to imports of subject merchandise from China and Vietnam. Based on these determinations, and pursuant to the “provisional measures” requirements of 19 U.S.C. §§ 1671b(d) and 1673b(d) , Commerce instructed the United States Customs and Border Protection (“Customs”) to suspend liquidation of all entries of subject merchandise that were entered or withdrawn from warehouse for consumption on or after the dates of Commerce’s preliminary ant idumping and countervailing duty determinations. The instructions also required cash deposits for the entries based on the preliminary duty margins Commerce calculated in its preliminary determination s.

Commerce then made final affirmative determinations, after which the ITC issued its final affirmative determination in an evenly

- divided vote (i.e., three negative votes and three affirmative votes). Utility Scale Wind Towers from China and Vietnam, 78 Fed. Reg. 10,210, 10,210 n. 2 (ITC Feb. 13, 2013) (final injury determination) (“ITC Determination”). Under the “divided vote” provision of 19 U.S.C. § 1677(11), the ITC’s split vote constituted an affirmative determination. 19
U.S.C. § 1677(11) (“If the Commissioners voting on a

d etermination by the [ITC] . . . are evenly divided as to
whether the determination should be affirmative or negative, the [ITC] shall be deemed to have made an affirmative determination.”). However, of the sixWIND TOWER TRADE v. US 5

C ommissioners on the investigation panel, thr ee C ommissioners voted entirely in the negative, finding
neither material injury nor threat of injury, two determined that the domestic wind tower industry had
suffered present material injury, and a third determined that the domestic industry was threatened with material injury, but that the domestic industry would not have suffered material injury in the absence of the provisional measures. ITC Determination at 10,210 n.2

– 3.

Commerce then issued antidumping and countervailing duty orders implementing the results of the final affirmative determinations. Utility Scale Wind Towers from China, 78 Fed. Reg. 11,146 (Dep’t of Commerce Feb. 15, 2013) (antidumping duty order); Utility Scale Wind Towers from China, 78 Fed. Reg. 11,152 (Dep’t of Commerce Feb. 15, 2 013) (countervailing duty order); Utility Scale Wind Towers from Vietnam, 78 Fed. Reg. 11,150 (Dep’t of Commerce Feb. 15, 2013) (antidumping duty order) (collectively, the “Orders”). As to the effective dates of the Orders, Commerce applied the

so

- called “Special Rule” of 19 U.S.C. §§ 1671e(b)(2) and 1673e(b)(2), making the Orders effective prospectively from the publication date of the ITC Determination. The
Orders also indicated that Commerce would instruct Customs to terminate the suspension of liquidation and refund the cash deposits made prior to the publication
date of the ITC Determination.

Appellant challenged Commerce’s application of the Special Rule before the CIT and sought temporary restraining orders (“TRO”) and preliminary injunctions to : (1 ) enjoin Commerce from ordering the termination of the suspension of liquidation and the refund of cash deposits; and (2) enjoin Customs during the pendency of the litigation before the CIT, including any subsequent remands and appeals, from discontinuing the suspension of liquidation and refunding the cash deposits. Wind
Tower Trade Coal. , 904 F. Supp. 2d at 1351. The CITWIND TOWER TRADE v. US 6

initially denied Appellant’s applications because it found Appellant had not made an adequate showing of
likelihood of success on the merits. Id. Appellant submitted a supplemental response further explaining its position on its likelihood of success. The CIT then entered
TROs to provide the Appellees an opportunity to respond to Appellant’s motions.

After receiving Appellees’ respons es, the CIT denied Appellant’s motions for preliminary injunctions and
dissolved the TROs. Id. Appellant filed a timely appeal to this court. Upon Appellant’s motion to stay pending appeal, this court reinstated the TROs pending full
consideration of th e issues. Wind Tower Trade Coal. v. United States, No. 13

- 1303 (Fed. Cir. June 28, 2013) (EC F No. 52) (order granting motion for emergency stay pending appeal).

D ISCUSSION

I. Jurisdiction

O f the Appellees, Siemens Energy, Inc. (“Siemens”)
alone chall enges this court’s jurisdiction : “[The Coalition’s] interlocutory appeal of the CIT’s order, and its case as a whole, may be dismissed for lack of subject matter jurisdiction, lack of standing, and lack of appellate jurisdiction.” Appellee Siemen s ’s Br. 4 (emp hasis added). Siemens bases its challenge on 28 U.S.C. § 1292 (d)(1), which provides

when any judge of the [CIT], in issuing any other interlocutory order, includes in the order a statement that a controlling question of law is involved with respect to which there is a substantial ground for difference of opinion and that an immediate appeal from that order may materially advance the ultimate termination of the litigation, [this court] may, in its discretion

, permit an app eal to be taken from such orderWIND TOWER TRADE v. US 7

(emphasis added). Siemens contends this appeal does not meet these criteria. Siemens also acknowledges, however, that “[t]his Court previously has assumed jurisdiction over appeals of interlocutory orders pertaining to injunctions from the CIT, relying on § 1292(c).” Appellee
Siemens ’s Br. 7.

In American Signature, Inc. v. United States

, 5 98 F.3d 816, 823 (Fed. Cir. 2010), for example, this court exercised jurisdiction over a case in which the CIT denied a motion for a preliminary injunction. This court expressly stated that jurisdiction was proper under § 1292(c)(1), which provides that t his court “shall have exclusive jurisdiction

. . . of an appeal from an interlocutory order or decree described in subsection (a) . . . in any case over which the court would have jurisdiction of an appeal under section 1295 of this title.” Section 1295(a )(5) provides that this court has exclusive jurisdiction “of an appeal from a final decision of the [CIT].” Section 1 292(a), however, specifies
that

the courts of appeals shall have jurisdiction of appeals from . . . [i]nterlocutory orders of the
district courts of the United States, the United
States District Court for the District of the Canal Zone, the District Court of Guam, and the District Court of the Virgin Islands, or of the judges thereof, granting, continuing, modifying, refusing or dissolving i njunctions, or refusing to di ssolve or modify injunctions.

Because this subsection does not specify the CIT, Siemens argues that only those appeals from interlocutory orders that meet the criteria of § 1292(d)(1), the subsection that specifically reference s the CIT, can be heard by this court.

Contrary to Siemens’ s arguments, this court has held
that §§ 1292(a), 1292(c)(1), and 1295 in conjunction confer jurisdiction upon this court over appeals of interlocutory orders issued by the CIT “granting, continuin g, modifying,WIND TOWER TRADE v. US 8

refusing or dissolving” injunctions. 28 U.S.C. § 1292(a);

s ee, e.g. , Norcal/Crosetti Foods, Inc. v. United States, 963 F.2d 356, 358 (Fed. Cir. 1992) (stating, in an appeal from the CIT, “[p]ursuant to 28 U.S.C. § 1292(c)(1)

. . . , this

cou rt has jurisdiction over an appeal from interlocutory orders described in section 1292(a), which include orders granting injunctive relief”). Under our precedent, this court has jurisdiction under 28 U.S.C. § 1292(c)(1).

II. Standard of Review

“The govern ing standard of review on appeal of a grant or denial of a preliminary injunction is abuse of
discretion.” Am. Signature , 598 F.3d at 823 (citing Titan Tire Corp. v. Case New Holland, Inc. , 566 F.3d 1372, 1375 (Fed. Cir. 2009)). “An abuse of discretion m ay be established under Federal Circuit law by showing that the court made a clear error of judgment in weighing the
relevant factors or exercised its discretion based on an error of law or clearly erroneous fact finding.” Qingdao Taifa Grp. Co. v. United States , 581 F.3d 1375, 1379 (Fed. Cir. 2009) (internal citation and quotation marks omitted)

. T o the extent a court’s decision to grant or deny a preliminary injunction “ hinges on questions of law, ” this
court’s review is de novo. Nat’l Steel Car, Ltd. v. Canadian Pac. Ry., Ltd. , 357 F.3d 1319, 1325 (Fed. Cir. 2004).

III. Legal Framework

A. Standard for Preliminary Injunctions

“A plaintiff seeking a preliminary injunction must establish [(1)] that he is likely to succeed on the merits, [(2)] that he is l ikely to suffer irreparable harm in the absence of preliminary relief, [(3)] that the balance of equities tips in his favor, and [(4)] that an injunction is in the public interest.” Winter v. Natural Res. Def. Council,

Inc. , 555 U.S. 7, 20 (2008) (citatio ns omitted). As observed by the CIT, “[i]n antidumping andWIND TOWER TRADE v. US 9

countervailing duty cases preliminary injunctions against liquidation have become almost automatic due to the retrospective nature of U.S. trade remedies, the length of the judicial review process, and the cruciality of unliquidated entries for judicial review.” Wind Tower Trade Coal., 904 F. Supp. 2d at 1352 (citing 19 C.F.R. § 351.212(a) (2012); Zenith Radio Corp. v. United States

, 710 F.2d 806, 810 (Fed. Cir. 1983); SKF USA

, Inc. v.
United Stat es , 512 F.3d 1326, 1329 (Fed. Cir. 2008) (“The
Zenith rule renders a court action moot once liquidation occurs.”); Qingdao Taifa , 581 F.3d at 1381

– 82 ).

However, “ [a] preliminary injunction is an extraordinary remedy never awarded as of right.” Winter

, 555 U.S. at 24 (citing Munaf v. Geren , 553 U.S. 674, 689

– 90 (2008) ) ; s ee also Qingdao Taifa , 581 F.3d at 1382 (noting the Supreme Court’s “emphasis on the importance of the likelihood of success in the preliminary injunction
calculus” in Munaf , 553 U.S. at 689

– 90). Therefore, “even if a party establishes that it will be irreparably harmed, the party must also demonstrate that it has at least a fair chance of success on the merits for a preliminary injunction to be appropriate.” Qingdao Taifa

, 581 F.3d at 1381 ( internal quotation marks and citation omitted)

. B. ITC Injury Determinations

In parallel investigations, Commerce investigates the extent to which foreign imports are “dumped” ( i.e., sold or likely to be sold in the U nited S tates “at less than fair

v alue”) or subsidized by a foreign government , while the ITC investigates whether the U.S. domestic industry has been materially injured, or threatened with material injury, as a result of the foreign imports. 19 U.S.C. §§ 1671a

– 1671d, 1673a

– 1673d. If bot h Commerce and the
ITC make preliminary affirmative determinations, provisional measures take effect, which suspend liquidation and require cash deposits for entries of merchandise covered by the investigation. Id. §§ 1671b(d),WIND TOWER TRADE v. US 10

1673b(d). If Commerce and th e ITC then make
affirmative final determinations at the conclusion of their respective investigations, the statute directs Commerce to publish antidumping and/or countervailing duty orders.
Id. §§ 1671e(a), 1673e(a). In such orders, Commerce specifies the effective date of the orders

— either the duty orders apply retrospectively to the entries that were suspended

, or the orders apply prospectively from the
dat e of publication of the final ITC determination.

Pursuant to 19 U.S.C. §§ 1671e(b) and 1673e(b), 2 th e effective date depends on the nature of the ITC determination, which will lead to the application of either the “General Rule” or the “Special Rule” (collectively, “the

Rule s”). The Rules are as follows:

(1) General rule

2 T he enactment of the Trade Agreements Act of

1979 (codified at 19 U.S.C. §§ 1671e(b) and 1673e(b) ) implemented the provisions of two international trade agreements the United States entered into as part of the Tokyo Round of Multilateral Trade Negotiations. According to the Trade Agreements Act’s legislative history, these provisions prohibit the collection of duties during the provisional

- measures period “unless the final
determ ination is that there is material injury or threat of material injury which, but for provisional measures, e.g., suspension 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, 445, 463

. T hese agreements recognize that, without a finding of material injury or threat with an affirmative “but for” finding, there is no affirmative injury determination to support the imposition of duties during the provisional

mea sures period.WIND TOWER TRADE v. US 11

If the [ITC], in its final deter mination . . . finds material injury or threat of material injury which, but for the suspension of liquidation . . . would have led to a finding of material injury, then entries of the [subject merchandise], the liquidation of which has been suspended . .

. , shall be subject to the imposition of . . . duties . . . .

(2) Special rule

If the [ITC], in its final determination . . . finds threat of material injury, other than threat of material injury described in paragraph (1), . . . then [subject merchandise ] which is entered, or withdrawn from warehouse, for consumption on or after the date of publication of notice of an affirmative determination of the [ITC] . . . shall be subject to the [assessment or imposition] of . . . duties . . . , and [Customs] shall release any bond or other security, and refund any cash deposit
made.

Id. §§ 1671e(b), 1673e(b) (providing parallel rules for countervailing and antidumping duties

, respectively). In other words, the General Rule applies if the ITC makes (1) an affirmative finding of present material injury, or (2) a finding of a threat of material injury that would have been a finding of present material injury in the absence of

th e provisional measures (i.e., a finding that “but for” the suspension of liquidation, the ITC would have concluded that the domestic industry is materially injured). Id. Under this Rule, duties are collected retrospectively on subject merchandise that en tered the United S tates during the course of the investigation. On the other hand, the Special Rule applies if the ITC finds that the U.S. industry is threatened with material injury, but there
would not be present material injury in the absence of the

pr ovisional measures. Id

. Under this rule, Commerce’s orders are effective prospectively from the publicationWIND TOWER TRADE v. US 12

date of the ITC’s final determination and provisional cash deposits are refunded.

The statutes do not explicitly address which of the Rules applie s to the fragmented ITC voting pattern presented in this case (i.e., an evenly

- divided affirmative determination comprising three negative votes and three affirmative votes, with two commissioners voting for material injury and one voting for t hreat with a negative
“but for” finding). The CIT, however, addressed this voting pattern in MBL (USA) Corp. v. United States , 787
F. S upp. 202 (Ct. Int’l Trade 1992), where Commerce applied the General Rule based on its interpretation of 19
U.S.C. § 1673e(b). The CI T reviewed Commerce’s interpretation of § 1673e(b) under the second prong of
Chevron

, U.S.A., Inc. v. Natural Res ources Defense Council, Inc. , 467 U.S. 837, 842

– 45 (1984), and determined that the interpretation was unreasonable
because Commerce was effecti vely ignoring the three negative votes, and focusing only on the three affirmative

votes. MBL , 787 F. Supp. at 207

– 08. The CIT found it unreasonable that two votes for and four votes against material injury during the provisional

- measures period could ju stify retroactive application of the duties

. Therefore, the CIT reversed Commerce’s determination, holding th at the Special Rule applies to this particular voting pattern.

Here, expressly noting the holding of MBL , Commerce applied the Special Rule, makin g the Orders effective prospectively. Because the CIT did not find that Appellant’s challenge based on Commerce’s application of the Special Rule was likely to succeed on the merits, it
denied the Coalition’s motions for preliminary injunctions. Appellant argues that the CIT erred in this regard.WIND TOWER TRADE v. US 13

IV. Likelihood of Success of the Merits

In response to Appellant’s contention that Commerce erred in applying the Special Rule, the CIT stated that it was “persuaded that this issue is just not winnable.”
Wind Tower Trade Coal. , 904 F. Supp. 2d at 1356. When a court examines the lawfulness of Commerce’s statutory interpretations, it employs the two

- prong test established
in Chevron . 467 U.S. at 842

– 45. The court first examines “whether Congress has directly spoken to the precise question at issue,” and if so, the agency and the court must comply with Congress’s clear intent. Id. at 842

– 43. If, however, “the statute is silent or ambiguous with respect to the specific issue,” a prong

- two analysis is

warra nted, under which the court must determine “whether the agency’s answer is based on a permissible
construction of the statute.” Id. at 843. “To determine whether Commerce’s interpretation is reasonable, the court ‘may look to the express terms of the pro visions at issue, the objectives of those provisions, and the objectives of the antidumping scheme as a whole. ’ ” Wheatland Tube
Co. v. United States , 495 F.3d 1355, 1361 (Fed. Cir. 2007) (quoting NSK Ltd. v. United States

, 217 F. Supp. 2d 1291, 1297 ( Ct. Int’l Trade 2002)).

Relying on Chevron , the CIT found

, “[b]eginning from the premise that Congress did not address the specific ITC voting pattern presented here, it is not difficult to sustain Commerce’s interpretation of sections 1671e(b) and 1673e(b) as a reasonable construction of the statute
to which the court must defer.” Wind Tower Coal. , 904 F. Supp. 2d at 135 6. The CIT properly held it was
reasonable for Commerce to consider all of the ITC
C ommissioners’ votes

— not just the affirmative votes—
under the second prong of Chevron

. Appellant argues that the CIT should not have moved beyond Chevron ’s first prong because the plain language of the statute is clear that the General Rule applies to theWIND TOWER TRADE v. US 14

voting pattern at issue. To Appellant, as “the text of the statute makes clear, the Special Rule is only applicable
when the ITC makes a final determinati on of threat of material injury .” Appellant’s Br. 17

– 18 ; id. at 19

– 20 (“[T]he Special Rule is not applicable in circumstances where only one Commissioner ha s made an affirmative finding of threat of material injury with a corresponding ‘but for’ determination and the statute does not support attributing negative ‘but for’ determinations to Commissioners who made overall negative findings.”). As noted, howeve r, the plain language of the statute does not address the voting pattern at issue here. See 19 U.S.C. §§ 1671e(b), 1673e(b). Because “the statute is silent . . . with respect to the specific issue,” a prong

- two analysis is
warranted. Chevron, 467 U.S. at 843.

In the alternative, Appellant argues that

, to the extent the statute is unclear, Commerce’s application of the Special Rule is not a reasonable interpretation of the statute and is not entitled to deference. First, Appellant argues that Commerce’s application of the Special Rule is
unreasonable because it renders the affirmative threat determination of a single Commissioner the controlling vote of the entire ITC. To Appellant, the statute “clearly indicates that Congress did not intend for the Spec ial Rule to be applied when a majority of the Commissioners who votes in the affirmative found that a U.S. industry is materially injured by reason of subject imports.” Appellant’s Br. 27

– 28

. In support, Appellant relies on the “divided vote” provision o f 19 U.S.C. § 1677(11) ( “If the Commissioners voting on a determination by the [ITC] . . . are evenly divided as to whether the determination should be affirmative or negative, the Commission shall
be deemed to have made an affirmative determination.” ).

“ Based on this explicit statutory directive,” Appellant argues, “there is no doubt that under such split vote circumstances, Congress intended for duties to be assessed on the subject merchandise.” Appellant’s Br. 34.WIND TOWER TRADE v. US 15

The Coalition’s argument is unpersuasi ve because it ignores the votes of three of the six Commissioners

, relying solely on the three votes for affirmative material injury or threat thereof. Such an interpretation of the statute, one that ignores that only two of the six Commissioners found pr esent material injury and no
Commissioner made an affirmative “but for” determination, is not reasonable. Indeed, the statutory language of the Rules requires that the ITC as a whole makes a finding when determining which of the Rules applies. 19 U.S.C. § 1671e(b)(1) (“ If the Commission , in its final determination . . . finds material injury or threat of material injury

. . . . ”) (emphasis added) ; id. § 1671e(b)(2) (same); id. § 1 673e(b)(1) (same); id. § 1673e(b)(2) (same). “The [ITC] makes its determinations by tallying the votes of the six individual commissioners.” U.S. Steel Grp. v. United States, 96 F.3d 1352, 1360 (Fed. Cir. 1996). Ignoring half of the votes of the six
C ommissioners does not reflect a determination of “the
Comm ission.” Occasionally, even in the law, common sense must prevail.

In any case , the legislative history of the statute explicitly states that Congress, in conformity with the

U nited S tates ’ international agreements, intended to
ensure that Commerce does n ot impose duties on merchandise that enters during the provisional

- measures period “unless the final determination is that there is material injury or threat of material injury which, but for provisional measures, e.g., suspension of liquidation, during th e investigation, would have been material injury.” See S. Rep. No. 96

- 249, at 59, 77 (1979), reprinted

in 1979 U.S.C.C.A.N. 381 at 445, 463. This purpose is
flouted when two

- thirds of the ITC’s votes are disregarded.

The Coalition also argues the word “f inds” in the statutes unambiguously requires Commerce to consider only votes that contain actual declarations on the issueWIND TOWER TRADE v. US 16

identified in the Rules. Appellant’s Br. 28 (“As becomes clear from the text of the statute, the relevant issue here is the meaning of the term ‘finds.’”). Because the word “finds” is not defined in the Tariff Act, Appellant asserts it should be defined to mean that only votes of the three
C ommissioners who found affirmative material injury or threat thereof should be considered for p urposes of the Special Rule: “Based on these votes, and these votes alone, the only logical conclusion is that the affirmative material injury votes outweigh the affirmative threat of material injury vote, warranting application of the General Rule.” Appe llant’s Br. 31.

Appellee the United States has expos ed the logical
falla cy of this argument:

If anything

. . . [the Coalition’s] position constitutes an unreasonable interpretation of the statute’s plain language, because one can hardly
construe the ITC to have “found” material injury when four of six commissioners explicitly rejected that finding, whereas the ITC’s vote breakdown entails at least a finding of threat of injury. Indeed, Commerce in MBL espoused the interpretation that [the Coalition] now as serts, thereby ignoring the votes of half of the ITC commissioners, and the [CIT] held the interpretation to be unreasonable.

Appellee United States’ Br. 22 (citing MBL , 787 F. Supp. at 208). There is no support for the proposition that the
word “finds” i n §§ 1671e(b) and 1673e(b) prevents Commerce from considering all of the ITC votes when determining whether the General or the Special Rule applies.

Finally, Appellant challenges Commerce’s reliance on

MBL , and insists that the rule from an earlier CIT case,
Metallverken Nederland B.V. v. United States , 728 F. Supp. 730 ( Ct. Int’l Trade 1989), should be applied. WhileWIND TOWER TRADE v. US 17

MBL involved a voting pattern identical to that at issue here, Metallverken involved a different pattern . To the Coalition, however, reliance on Metallverken is warranted

as MBL’s “holding is flawed because it inappropriately attributes affirmative threat findings and negative ‘but for’ findings to three Commissioners who did not make such determinations.” Appellant’s Br. 31.

Appellant’s argument fails for several reasons. 3 As an initial matter, MBL is the only case addressing the ITC voting pattern presented here. Second, the language from
Metallverken suggesting that the voting pattern in this case may lead to the application of the General Rule is
dicta

, as was recognized by the CIT in MBL

. See MBL

, 787 F. Supp. at 206 (recognizing that Metallverken “grew out of an affirmative determination by the ITC” in which
the C ommissioner voting fo r threat of injury made an affirmative “but for” finding); see also Wind Tower Coal.

, 904 F. Supp. 2d at 1357 (“ Metallverken . . . did not involve the same ITC voting pattern, nor did it involve Commerce’s interpretation of an ITC final determination,
as C ommerce was not a party to the action.”). Third, in

MBL itself the CIT undertook an extensive examination
of the Metallverken decision and found it to be of limited persuasive weight on the question of the proper treatment of provisional measures. See MBL , 787 F. Supp. at 206.

In sum, this court agrees with the CIT’s well-reasoned conclusion that “Commerce’s application of the special rule to the fragmented ITC voting pattern here . . . flows reasonably from the specific statutory provisions, their

purp oses, and the statute as a whole, as the court

3 Because this court finds Appellant’s arguments regarding Metallverken unavailing, its additional arguments based on examples of Commerce’s “practice”
cited in Metallverken are also unpersuasive.WIND TOWER TRADE v. US 18

explained in MBL .” Wind Tower Trade Coal. , 904 F. Supp. 2d at 1356. Appellant has not undermined this conclusion, and therefore has not demonstrated its likelihood of success on the merits of its challenge t o Commerce’s application of the Special Rule.

V. Irreparable Injury

Regarding the second preliminary injunction factor, the CIT observed that “parties tend to establish irreparable injury fairly easily in trade cases because of the negative consequences of liquidation. Here, the court [below] believes that [the Coalition] has established such injury because once the entries covered by the provisional measures are liquidated, the court cannot provide any meaningful relief.” Wind Tower Trade Coal. , 904 F. S upp. 2d at 1358. No party has challenged this aspect of the
decision. The court notes, however, that a showing on one preliminary injunction factor does not warrant injunctive relief in light of a weak showing on other factors. Winter

, 555 U.S. at 22 (c iting Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curi a m)) (“[I] njunctive relief [is] an extraordinary remedy that may only be awarded upon a clear showing that the plaint iff is entitled to such relief.”).

T he CIT did not abuse its discretion in holding that the
Co a li tion’s show ing of irreparable injury i s outweighed by its failure to demonstrate any likelihood of success on the
merits.

VI. Balance of the Equities

Based on its finding that there was little like lihood of success on the merits of Appellant’s challenge, the CIT expressed its concern “that issuance of preliminary injunctions against liquidation here may be a misuse of the court’s equitable power by keeping the provisional measures in place beyond th eir prescribed 4

- month period [under 19 U.S.C. §§ 1671b(d), 1673b(d)] and by depriving importers of the time value of their provisional cash deposits.” Wind Tower Trade Coal. , 904 F. Supp. 2d atWIND TOWER TRADE v. US 19

135 8–5 9. For these reasons, the CIT properly found that
the equities did not favor Appellant.

The Coalition, however, insists that the balance tips in its favor because it will be irreparably injured in the absence of preliminary injunctions, while the United States will suffer no hardship. Appellant is mistaken. First, it is notable that the Coalition will not suffer concrete financial hardship in the absence of injunctions because its members are not liable for paying duties and have no right to recover any duties. Second, even if the suspended entries are liq uidated without assessment of retrospective duties, the Coalition is protected by the prospective assessment of duties under the Orders. In addition, the Coalition will be able to obtain future administrative and judicial review of the calculations of

suc h duties on any injurious post

- Order entries.

Third, the United States has a cognizable interest in administrating the trade laws in a fair, timely

, and effective manner. Under 19 U.S.C. §§ 1671b(d) and 1673b(d), provisional measures take effect when
Comm erce issues a preliminary affirmative determination and generally “may not remain in effect for more than 4 months.” An injunction postponing liquidation for the pendency of the litigation would necessarily prolong the provisional measures well beyond the ir statutory limit.
The CIT did not abuse its discretion in finding that, in light of the weak showing of a likelihood of success on the merits, the balance did not tip in Appellant’s favor. See
Winter , 555 U.S. at 23 (“[E]ven if plaintiffs have shown

ir reparable injury . . . , any such injury is outweighed by the public interest and the [balance of the equities].”).

VII. Public Interest

Finally, the CIT did not believe “it is in the public interest to issue preliminary injunctions in actions where
there is no likelihood of success on the merits.” Wind
Tower Trade Coal. , 904 F. Supp. 2d at 1359. AppellantWIND TOWER TRADE v. US 20

contends, however, that “the public interest favors the grant of preliminary injunctions, and the CIT, based largely on its erroneous determination tha t the Coalition failed to establish a likelihood of success on the merits, abused its discretion in finding ot herwise.” Appellant’s

Br. 51.

It was not an abuse of discretion for the CIT to find, given the un likelihood of the Coalition’s success on the

mer its, that granting the preliminary injunctions would not be in the public interest. Indeed, “‘ [i] n exercising their sound discretion, courts of equity should pay particular regard for the public consequences in employing the extraordinary remedy of injunc tion.’”

Winter , 555 U.S. at 24 (quoting Weinberger v. Romero

– Barcelo , 456 U.S. 305, 312 (1982) ) ; see also FMC Corp. v.
United States , 3 F.3d 424, 427 (Fed. Cir. 1993) (“Absent a showing that a movant is likely to succeed on the merits, we question whether the movant can ever be entitled to a preliminary injunction unless some extraordinary injury

or strong public interest is also show n .”) (emphase s added). Here, no strong public interest was demonstrated.

C ONCLUSION

For the foregoing reasons, the CIT’s decision denying Appellant’s motions for preliminary injunctions and dissolving the TROs is affirmed.

AFFIRMED