PPG Industries, Inc. v. US

• Decision Date: 12 December 1991
• Docket Number: Court No. 89-12-00678.
• Citation: 15 CIT 615,781 F. Supp. 781
• Parties: PPG INDUSTRIES, INC., Plaintiff, v. UNITED STATES, Defendant, Vitro Flex, S.A. and Cristales Inastillables De Mexico, S.A., Defendants-Intervenors.
• Court: U.S. Court of International Trade

781 F. Supp. 781

15 CIT 615

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.

December 12, 1991.

COPYRIGHT MATERIAL OMITTED

Stewart and Stewart, Terence P. Stewart, David Scott Nance and Margaret E.O. Edozien, 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, A. David Lafer and Jane E. Meehan, Craig R. Giesse and Diane M. McDevitt, of counsel, Atty. Advisors, Office of the Chief Counsel for Import Admin., U.S. Dept. of Commerce, Washington, D.C., for defendant.

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

MEMORANDUM OPINION AND ORDER

CARMAN, Acting Chief Judge:

Plaintiff PPG Industries, Inc. ("PPG") moved pursuant to Rule 56.1 of the Rules of this Court for partial judgment upon the agency record. Defendant-Intervenors Vitro Flex, S.A. and Cristales Inastillables, S.A. filed a cross-claim against the United States pursuant to Rule 13(f), seeking judgment upon the agency record in support of their cross-claim. These challenges contest several aspects of the final determination of the International Trade Administration, United States Department of Commerce ("ITA" or "Commerce"), in Fabricated Automotive Glass from Mexico; Final Results of Countervailing Duty Administrative Review, 54 Fed.Reg. 51,908 (1989) ("Final Results"). ITA's review covers shipments of Mexican fabricated automotive glass for the period January 1, 1986, through December 31, 1986. ITA determined that the total bounty or grant for this period to be zero. Final Results, 54 Fed.Reg. at 51,912.

Plaintiff's motion challenges ITA's findings that (1) FICORCA¹ benefits were not provided to a specific enterprise or industry or group of enterprises or industries and, therefore, had not provided Mexican automotive glass producers with a countervailable benefit; (2) the Mexican natural gas program had not provided Mexican automotive glass producers with a countervailable benefit; (3) exports of automotive glass had not benefitted from the payment of CEDIs;² and (4) the United States lacks authority to impose countervailing duties upon imports of automotive glass from Mexico entering the United States on or after August 24, 1986, the date of Mexico's accession to the General Agreement on Tariffs and Trade ("GATT"),³ without an affirmative determination of injury to the domestic industry.

Defendant-Intervenors support Commerce's determination that Commerce lacks the authority to impose countervailing duties on the subject merchandise entering the United States after August 24, 1986. Defendant-Intervenors' cross-claim challenges Commerce's failure to terminate the continued suspension of liquidation of all post-GATT accession entries of the subject merchandise as contrary to United States countervailing duty law and the United States international obligations under the GATT. Defendant United States opposes both Plaintiff's motion and Defendant-Intervenors' cross-claim and seeks to sustain Commerce's determination in its entirety.

This Court has jurisdiction pursuant to 19 U.S.C. § 1516a(a)(2)(A)(i) (1988) and 28 U.S.C. § 1581(c) (1988).

Background

On July 31, 1984, PPG filed a petition with the ITA on behalf of the United States fabricated automotive glass industry, requesting the imposition of countervailing duties upon imports of fabricated automotive glass from Mexico. Initiation of Countervailing Duty Investigation; Fabricated Automotive Glass from Mexico, 49 Fed.Reg. 33,919 (1984) ("Initiation of Countervailing Duty Investigation"). The petition alleged, among other things, that the Mexican FICORCA and natural gas programs conferred bounties or grants upon the manufacture or production of fabricated automotive glass within the meaning of section 303 of the Tariff Act of 1930 ("Tariff Act"), as amended, 19 U.S.C. § 1303 (1982).

At the time of the initial countervailing duty determination, Mexico was not a "country under the Agreement" within the meaning of section 701(b) of the Tariff Act. Initiation of Countervailing Duty Investigation, 49 Fed.Reg. at 33,919; 19 U.S.C. §§ 1671 (1982). Accordingly, Commerce conducted the initial countervailing duty investigation pursuant to section 303 of the Tariff Act. See 19 U.S.C. § 1303. Furthermore, because Mexico was not a signatory to the GATT at that time, imports of the subject merchandise, a duty-free product pursuant to the United States Generalized System of Preferences, were not entitled to an injury determination during the initial investigation. See 19 U.S.C. § 1303(a)(2).

As a result of previous final countervailing duty determinations in which Commerce had determined that the Mexican FICORCA and natural gas programs did not confer countervailable domestic subsidies, Commerce declined to reinvestigate these two programs in the initial countervailing duty investigation of fabricated automotive glass from Mexico. Initiation of Countervailing Duty Investigation, 49 Fed.Reg. at 33,920.

On January 14, 1985, Commerce published a notice of its final affirmative countervailing duty determination and order. Final Affirmative Countervailing Duty Determination and Countervailing Duty Order: Fabricated Automotive Glass from Mexico, 50 Fed.Reg. 1906 (1985). Commerce found that the Government of Mexico had provided bounties or grants within the meaning of section 303 of the Tariff Act to certain manufacturers or exporters of fabricated automotive glass. Pursuant to this countervailing duty order, Customs was directed to collect a cash deposit or bond on entries of the subject merchandise. Id. Commerce further stated that the suspension of liquidation ordered in the preliminary affirmative determination⁴ was to remain in effect with the exception of automotive glass manufactured and exported by L-N Safety Glass.

On December 11, 1986, Commerce published the final results of its first countervailing duty administrative review of the order covering the subject merchandise. Fabricated Automotive Glass from Mexico; Final Results of Countervailing Duty Administrative Review, 51 Fed.Reg. 44,652 (1986). This review covered the period October 24, 1984 through December 31, 1985. There, Commerce determined that the FICORCA, natural gas, and CEDI programs did not confer countervailable benefits upon Vitro Flex and Cristales, the respondents in that proceeding. PPG then challenged that determination before this Court. This Court sustained Commerce's determination with respect to the FICORCA, CEDI, and natural gas programs as supported by substantial evidence on the record and as otherwise in accordance with law. PPG Indus., Inc. v. United States, 14 CIT ___, 746 F.Supp. 119 (1990).

On January 28, 1987, Plaintiff and Defendant-Intervenors requested the ITA to conduct the second administrative review of the countervailing duty order covering calendar year 1986. Defendant-Intervenors additionally requested, in light of Mexico's accession to the GATT on August 24, 1986, the ITA to revoke the underlying countervailing duty order with respect to all entries of the subject merchandise made on or after that date. Administrative Record Document ("A.R. Doc.") 2.

On December 19, 1989, Commerce published its final results of the second countervailing duty administrative review, which is the subject of the instant action. Final Results, 54 Fed.Reg. 51,908. In the Final Results, Commerce determined that all Mexican government programs examined, including the FICORCA, natural gas, and CEDI programs, conferred "zero" countervailable benefits during the relevant review period. Id. at 51,909-12. Accordingly, Commerce instructed Customs 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. Id. Plaintiff then challenged the Final Results and, on January 5, 1990, obtained an injunction barring the liquidation of the entries covered by the review period. See PPG Indus., Inc. v. United States, 14 CIT ___, 729 F.Supp. 859 (1990). Defendant-Intervenors challenge certain portions of the Final Results relating to Mexico's accession to the GATT.

Discussion

Commerce's determination must be upheld unless it is "unsupported by substantial evidence on the record, or otherwise not in accordance with law." 19 U.S.C. § 1516a(b)(1)(B) (1988). Substantial evidence "means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Matsushita Elec. Indus. Co. v. United States, 3 Fed. Cir. (T) 44, 51, 750 F.2d 927, 933 (1984) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938)).

Commerce's interpretations of the countervailing duty laws are accorded substantial deference and will be upheld as in accordance with law unless the interpretation is "unreasonable and plainly inconsistent with the statute, and ... unless weighty reasons require otherwise." ICC Indus., Inc. v. United States, 5 Fed.Cir. (T) 78, 84, 812 F.2d 694, 699 (1987) (citations omitted). Commerce's "interpretation of the statute need not be the only reasonable interpretation or the one which the court views as the most reasonable." 5 Fed.Cir. (T) at 85, 812 F.2d at 699 (emphasis in original).

This Court will now review Commerce's determinations with respect to the FICORCA, natural gas, and CEDI programs. Plaintiff's and Defendant-Intervenors' challenges to Commerce's findings concerning Mexico's accession to the GATT will be discussed subsequently.

FICORCA

Plaintiff asserts several challenges to Commerce's determination that the FICORCA program is not...