PPG Industries, Inc. v. US, Court No. 89-12-00678.

• Court: U.S. Court of International Trade
• Citation: 729 F. Supp. 859,14 CIT 18
• Docket Number: Court No. 89-12-00678.
• Parties: PPG INDUSTRIES, INC., Plaintiff, v. UNITED STATES, Defendant, Vitro Flex, S.A. and Cristales Inastillables de Mexico, S.A., Defendants-Intervenors.
• Decision Date: 17 January 1990

729 F. Supp. 859
14 CIT 18

PPG INDUSTRIES, INC., Plaintiff,
v.
UNITED STATES, Defendant, Vitro Flex, S.A. and Cristales Inastillables de Mexico, S.A., Defendants-Intervenors.

Court No. 89-12-00678.

United States Court of International Trade.

January 17, 1990.

Stewart and Stewart, Terence P. Stewart and David Scott Nance, Washington, D.C., for plaintiff.

Stuart M. Gerson, Asst. Atty. Gen., David M. Cohen, Director, Commercial Litigation Branch, Civ. Div., U.S. Dept. of Justice, Washington, D.C. and Velta A. Melnbrencis, New York City, for defendant.

Brownstein, Zeidman and Schomer, Irwin P. Altschuler, David R. Amerine, Claudia G. Pasche, Washington, D.C., and Jeff P. Manciagli, Brooklyn, N.Y., for defendants-intervenors.

MEMORANDUM OPINION

CARMAN, Judge:

This Court issued an order on January 5, 1990, granting plaintiff's application for a preliminary injunction. Pursuant to Rule 52(a) of this Court, this opinion sets forth the findings of fact and conclusions of law underlying the issuance of that order.

Plaintiff commenced this action by filing a summons and complaint concurrently with an application for a temporary restraining order and preliminary injunction. Plaintiff contests certain aspects of the final determination of the International Trade Administration (ITA) in its administrative review of the countervailing duty order covering fabricated automotive glass from Mexico for the calendar year 1986.¹

729 F. Supp. 860

On December 26, 1989, with the consent of all parties, Senior Judge Bernard Newman sitting in Motion Part, granted plaintiff's request for a temporary restraining order and scheduled a hearing on the merits of the imposition of a preliminary injunction. The temporary restraining order enjoined the defendant from making or permitting the liquidation of any unliquidated entries of fabricated automotive glass, including tempered and laminated automotive glass, produced by the Mexican manufacturers and exporters, Cristales Inastillables de Mexico, S.A., and Vitro Flex, S.A., which were entered or withdrawn from warehouse on or after January 1, 1986 and exported on or before December 31, 1986.

At the hearing, the Court granted the application by the Mexican manufacturers to intervene as of right. Defendant-intervenors opposed plaintiff's motion for a preliminary injunction in part. The defendant United States consented to the issuance of a preliminary injunction. After hearing the arguments of the parties, the Court issued an order enjoining the defendant from liquidating any and all entries covered by the temporary restraining order.

BACKGROUND

On December 19, 1989 the ITA published its final determination concerning its administrative review of the countervailing duty order covering fabricated automotive glass from Mexico for the calendar year 1986. Fabricated Automotive Glass From Mexico; Final Results of Countervailing Duty Administrative Review, 54 Fed.Reg. 51,908 (Dec. 19, 1989). The determination noted the ITA had found the total grant or bounty for the period January 1, 1986 through December 31, 1986 to be zero. The ITA instructed the Customs Service to liquidate all outstanding entries of the merchandise exported during the 1986 calendar year without regard to countervailing duties and directed that no countervailing duty deposits be collected henceforth.

At the administrative hearing before the ITA, defendant-intervenors argued that as a result of Mexico's accession to the General Agreement on Tariffs and Trade (GATT), effective on August 24, 1986, countervailing duties could not be assessed on merchandise subsequent to that date, without an injury determination pursuant to section 303(a)(2) of the Tariff Act of 1930. 19 U.S.C. § 1303(a)(2) (1988). Plaintiff argued that the ITA had neither the obligation nor the authority to revoke the countervailing duty order for the period after August 24, 1986 (the "post-GATT" period).

In its determination the ITA stated:

The merchandise covered by this review is afforded duty-free status under the Generalized System of Preferences. Section 303(a)(2) prohibits the imposition of countervailing duties on duty-free products absent an affirmative injury determination when the United States has an "international obligation" to provide such a test. Mexico's accession to the GATT imposes such an international obligation on the United States with respect to duty-free merchandise entered into the United States after the date of Mexico's accession.

54 Fed.Reg. at 51,912. Nevertheless, the ITA declined to address the issue of whether Mexico's accession to the GATT required revocation of the countervailing duty order as to merchandise entered subsequent to that date. The ITA reasoned as follows:

Assessment of duties is not an issue at this time because the total bounty or grant for the period January 1, 1986 through December 31, 1986, is zero. Moreover, we are currently pursuing means by which an injury determination could be made concerning imports of Mexican automotive glass entered on or after August 24, 1986, the date of Mexico's accession to the GATT.

Id.

Thereafter, plaintiff commenced this action to contest certain of the ITA's findings that resulted in its determination of a zero bounty or grant for entries covered in the administrative review. In opposing plaintiff's motion for the preliminary injunction, defendant-intervenors object only to the issuance of a preliminary injunction for the liquidation of merchandise entered after

729 F. Supp. 861

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