Slip Op. 05-83

              UNITED STATES COURT OF INTERNATIONAL TRADE


WEST FRASER MILLS LTD.,

              Plaintiff,

              v.
                                           BEFORE:   Restani, Chief Judge
UNITED STATES,                                       Eaton, Judge
                                                     Stanceu, Judge
              Defendant,
                                           Consol. Court No. 05-00079
              and

THE COALITION FOR FAIR
LUMBER IMPORTS EXECUTIVE
COMMITTEE,

              Defendant-Intervenor.



                             MEMORANDUM ORDER

      Defendant United States moves, pursuant to USCIT Rule 7(f),

for an order modifying a preliminary injunction that the Court

issued by order dated March 7, 2005 in this case and a second

preliminary    injunction    that   the    Court   issued   by   order    dated

March 10, 2005 in two cases (Court Nos. 05-00136 and 05-00144) now

consolidated in this action.        Under the preliminary injunctions,

defendant is enjoined, during the pendency of the litigation before

this Court, from liquidating, or causing or permitting liquidation,

of   import   entries   of   softwood     lumber   from   Canada   that    were

produced, exported or imported by the various plaintiffs in this

consolidated case.      For the reasons discussed herein, the Court
Consol. Court No. 05-00079                                     Page 2

orders only those changes to the two injunctions to which all

affected parties have consented.

       Both preliminary injunctions were ordered with the consent of

the parties.    Defendant’s motion now seeks to remove the names of

certain importers of softwood lumber from Canada as identified in

Attachment A to the March 7, 2005 injunction and in Exhibit A to

the March 10, 2005 injunction.           Defendant also seeks an order

modifying the March 7, 2005 preliminary injunction by separately

listing individual Customs identification numbers for Landmark

Truss & Lumber Inc. (A-122-838-230), Frontier Mills Inc. (A-122-

838-184), and Fraser Pacific Forest Products, Inc. (A-122-838-180).

       All affected parties have consented to the changes that

defendant’s motion would make to the preliminary injunction entered

on March 10, 2005.    Defendant obtained consent for the changes it

seeks to the March 7, 2005 preliminary injunction from all affected

parties, with the exception of Commonwealth Plywood Co. Ltd.,

Leggett & Platt Ltd., and Leggett & Platt (B.C.) Ltd.

       Defendant seeks to modify the preliminary injunction entered

March 7, 2005 by deleting names of several importers that were

listed with notations such as “doing business as,” “formerly,” or

“now   known   as.”   The   March   7,    2005   preliminary   injunction

identified Commonwealth Plywood Co. Ltd. as “also doing business as

Bois Clo-Val and Les Entreprises Atlas.”         Defendant’s motion seeks

to remove Bois Clo-Val and Les Entreprises Atlas from Attachment A
Consol. Court No. 05-00079                                               Page 3

of the March 7, 2005 preliminary injunction.                  The March 7, 2005

preliminary injunction identified Leggett & Platt Ltd., and Leggett

& Platt (B.C.) Ltd. as “(dba: Leggett Wood).”               Defendant seeks to

have    the   notation    “(dba:     Leggett      Wood)”   removed       from    that

injunction.

       Defendant contends that the company names it would have

removed from the preliminary injunctions do not match the names of

the companies that participated before the U.S. Department of

Commerce (“Commerce”) in the administrative review at issue, as

established by the administrative record.              See Def.’s Am. Mot. to

Modify Inj. (“Def.’s Mot.”) at 2. According to defendant, Commerce

“cannot   recognize      company   names      different    from   the     specific,

individual company names provided to Commerce on the record during

the administrative        review.”      

      the

proposed modifications are necessary to enable Commerce to properly

perform its administrative task of instructing the Bureau of

Customs and Border Protection (“Customs”) to suspend liquidation of

subject entries of softwood lumber from Canada.                 See 

     Plywood     filed    a    brief   in     opposition         to

defendant’s motion, arguing that the removal of Bois Clo-Val and

Les Entreprises Atlas from the March 7, 2005 preliminary injunc-

tion amounts to “a motion to dismiss claims by two divisions of

Commonwealth [Plywood] due to an alleged lack of standing.”                     Pl.’s

Opp’n   to    Def.’s   Mot.   to   Modify     Inj.   (“Pl.’s      Opp’n”)       at    2.
Consol. Court No. 05-00079                                           Page 4

Commonwealth Plywood disputes the factual assertions and legal

conclusions     asserted     in    defendant’s      motion,       “i.e.,      that

Commonwealth and its divisions ‘did not participate in the review’

and that Commerce is ‘prohibited’ from issuing suspension and

liquidation instructions until the injunction is amended.”                 

to Commonwealth Plywood, the Court should address the

issues of standing that the defendant raises only after the parties

are allowed to fully brief the Court.           See 

filed a motion, pursuant to USCIT Rule 7(f), for

leave   to   submit   a   reply   to   Commonwealth    Plywood’s      brief    in

opposition, which motion the Court is granting.                   In the reply,

defendant    maintains    that    it   has   “not   moved    to   dismiss   Bois

Clo[-]Val and Les Entreprises Atlas from this action.               There is no

need to do so.    Neither is a party to this action.”               Def.’s Mot.

For Leave to File Reply & Def.’s Reply to Commonwealth’s Opp’n to

Def.’s Mot. to Modify Injs. at 3.            Defendant also argues that it

has “demonstrated” that “Commerce is unable to issue instructions

to [Customs] based upon names that do not match the specific,

individual names provided to Commerce on the record during the

administrative review.”      

3.

     In general, “courts have inherent power and the discretion to

modify injunctions for changed circumstances.”              Aimcor, Ala. Sili-

con, Inc. v. United States, 

, 938, 

,

1299 (1999)(citing Sys. Fed’n No. 91 v. Wright, 

, 647
Consol. Court No. 05-00079                                                  Page 5

(1961)).        However,   the      moving    party    bears      the       burden    of

establishing     a   “change   in     circumstances        that   would      make    the

original preliminary injunction inequitable.”                 Favia v. Ind. Univ.

of Pa., 

, 340 (3d Cir. 1993).               To support its argument

that defendant has “demonstrated” that Commerce is unable to issue

suspension of liquidation instructions to Customs for importers

that were not specifically named as parties in the underlying

administrative       review,   defendant      cites    19    U.S.C.     §    1675    and

19 C.F.R. § 351.213.       See Def.’s Mot. at 2.            The cited provisions,

however, address       generally      the    matter   of    who   may    request     an

administrative review and do not address the issue of whether

Commerce   is    prohibited      or    otherwise      precluded       from     issuing

suspension of liquidation instructions to Customs for importers

identified in a preliminary injunction.

     Defendant has failed to meet its burden of establishing that

“changed circumstances, legal or factual, make the continuation of

the injunction inequitable” absent a modification to delete the

names appearing in the March 7, 2005 preliminary injunction that

are associated with the non-consenting plaintiffs.                      Aimcor, Ala.

Silicon, 

, 83 F. Supp. 2d at 1299 (citing 

).       Accordingly, the court denies defendant’s motion

to the extent that it seeks to remove from the March 7, 2005

preliminary injunction the names “Bois Clo-Val,” “Les Entreprises

Atlas,” and “Leggett Wood.”             The language of the preliminary
Consol. Court No. 05-00079                              Page 6

injunction dated March 7, 2005 suspending liquidation of the

entries subject to the administrative review at issue in this

litigation was constructed after negotiation and was consented to

by all affected parties.     See Pl.’s Opp’n at 6.   Defendant has

failed to present, or even allude to, evidence establishing that

the continuation of the March 7, 2005 injunction without removal of

the names Bois Clo-Val, Les Entreprises Atlas, and Leggett Wood

would render “the original preliminary injunction inequitable.”

.       Nor has defendant made a showing that

Commerce is unable to issue to Customs instructions pertaining to

the March 7, 2005 preliminary injunction, or that Customs is unable

to follow such instructions, without deletion of these names.

Further, defendant has failed to show how it would suffer injury

were the Court to reject the contested changes it seeks to the

March 7, 2005 injunction.

     Commonwealth Plywood, on the other hand, has established that

the removal of Bois Clo-Val and Les Entreprises Atlas from the

scope of the March 7, 2005 preliminary injunction is likely to

cause irreparable injury.    Such a modification could result in a

loss of an opportunity to challenge the antidumping duty margins

and deposit rates applied to import entries identified with those

two names.   See Pl.’s Opp’n at 3.    Such a result could occur if

Customs liquidates entries made in the name of either Bois Clo-Val

and Les Entreprises Atlas.     The same considerations require the
Consol. Court No. 05-00079                                 Page 7

Court to conclude that defendant has not met the burden of showing

that the name “Leggett Wood” should be removed from the March 7,

2005 preliminary injunction.

     Because defendant has failed to meet its burden with regard to

the contested modifications to the March 7, 2005 injunction, the

Court is granting defendant’s motion only to the extent that it

would effect changes to the two preliminary injunctions that are

consented to by the affected parties.        The Court is denying

defendant’s motion to the extent that it would make changes to the

preliminary injunction entered March 7, 2005 to which the affected

parties have not consented.    Accordingly, it is hereby

     ORDERED that defendant’s motion for leave to file a reply to

Commonwealth Plywood’s opposition is granted; it is further

     ORDERED that defendant’s motion to modify the injunctions is

denied to the extent that it seeks to delete the names “Bois

Clo-Val,” “Les Entreprises Atlas” and “Leggett Wood” from the

preliminary injunction entered on March 7, 2005; it is further

     ORDERED that defendant’s motion is granted to the extent that

it seeks to modify or delete certain other references to names of

plaintiffs in the preliminary injunction entered by this Court on

March 7, 2005 in this consolidated action, and accordingly the

Attachment A to the preliminary injunction entered by this Court on

March 7, 2005 in this consolidated action is hereby modified:
Consol. Court No. 05-00079                                         Page 8

          To delete the reference “Winton Global Lumber Ltd.”
     and to revise the accompanying reference “(formerly The
     Pas Lumber Company Ltd.)” to read “The Pas Lumber Company
     Ltd.”,

          To revise the reference to Bridgeside Higa Forest
     Industries Ltd. to delete the reference “(now known as
     Bridgeside Forest Industries Ltd.)”,

          To revise the reference to Vernon Kiln and Millwork
     Ltd. to delete the reference “(dba: Paragon Wood–Vernon
     Division)”,

           To delete the reference “Western Forest Products
     Inc.”   and   to  revise   the   accompanying   reference
     “(successor company to Doman Forest Products Limited,
     Doman Industries Limited, and Doman Western Lumber Ltd.)”
     to read “Doman Forest Products Limited, Doman Industries
     Limited, and Doman Western Lumber Ltd.”,

          To revise the reference to Landmark Truss & Lumber
     Inc. to include separate Customs identification numbers
     for Landmark Truss & Lumber Inc. (Customs identification
     number A-122-838-230), Frontier Mills Inc. (Customs
     identification number A-122-838-184) and Fraser Pacific
     Forest Products, Inc. (Customs identification number
     A-122-838-180), and

          To revise the reference to Tembec Inc. to delete the
     reference “Gestion PFT Inc.”;

it is further

     ORDERED that defendant’s motion is granted to the extent that

it seeks to delete certain references to names from the preliminary

injunction   entered   by    this   Court   on   March   10,   2005    in   this

consolidated    action,     and   accordingly    the     Exhibit   A   to   the

preliminary injunction entered by this Court on March 10, 2005 in

this consolidated case is hereby modified:
Consol. Court No. 05-00079                               Page 9

          To revise the reference to “Clair Industrial
     Development Corp. Ltd. (Waska),” by deleting from that
     reference the text “(also doing business as Waska Lath
     Inc.)”, and

          To revise the reference to Marwood Ltd. by deleting
     from that reference the text “(also doing business as:
     Cape Cod Wood Siding Inc., Marwood Inc. and Atlantic
     Pressure Treating Ltd.).”




                              /s/ Jane A. Restani
                              Chief Judge Jane A. Restani


                              /s/ Richard K. Eaton
                              Judge Richard K. Eaton


                              /s/ Timothy C. Stanceu
                              Judge Timothy C. Stanceu


     Dated: July 14, 2005
     New York, New York