PPG Industries, Inc. v. United States

• Decision Date: 28 September 1981
• Docket Number: Court No. 81-6-00733.
• Citation: 2 CIT 110,525 F. Supp. 883
• Parties: PPG INDUSTRIES, INC., Plaintiff, v. UNITED STATES, Malcolm T. Baldrige, Secretary of Commerce, Lionel H. Olmer, Under Secretary For International Trade, Department of Commerce, Defendants.
• Court: U.S. Court of International Trade

525 F. Supp. 883

2 CIT 110

PPG INDUSTRIES, INC., Plaintiff, v. UNITED STATES, Malcolm T. Baldrige, Secretary of Commerce, Lionel H. Olmer, Under Secretary For International Trade, Department of Commerce, Defendants.

Court No. 81-6-00733.

United States Court of International Trade.

September 28, 1981.

Eugene L. Stewart, Washington, D. C. (Paul W. Jameson and Jeffrey S. Beckington, Washington, D. C., on the brief), for plaintiff.

Stuart E. Schiffer, Acting Asst. Atty. Gen., Washington, D. C., David M. Cohen, Director, Commercial Litigation Branch, New York City (Francis J. Sailer, Washington, D. C., on the briefs), for defendants.

RAO, Judge:

This case involves the periodic review of an antidumping duty order on glass from Taiwan pursuant to section 751 of the Tariff Act of 1930, as amended by the Trade Agreements Act of 1979, P.L. 96-39, 93 Stat. 144 (19 U.S.C. § 1675). The new antidumping duty provisions require that the Department of Commerce (hereinafter Commerce) conduct a periodic review, at least once during each calendar year, of previously issued antidumping orders in order to ascertain the amount of antidumping duties which should be assessed against relevant imports in the previous year and to establish the basis on which estimated deposits of antidumping duties will be collected during the ensuing year.

Commerce is required by the provisions of 19 U.S.C. § 1675(d) when it conducts an annual review, on the request of an interested party, to hold a hearing in accordance with 19 U.S.C. § 1677c(b), which requires notice in the Federal Register and a transcript which shall be made available to the public.

Commerce has promulgated regulations which provide that "a disclosure may be made, generally about 30 days prior to the date of the redetermination is due for publication, on request by interested parties * * to the proceeding, * * * at which time written and oral views may be presented. See 19 C.F.R. § 353.53(d), 45 Fed.Reg. 8182, 8205 (1980).

Plaintiff requested a disclosure conference on May 11, 1981. It was subsequently informed by the International Trade Administration (hereinafter ITA) officer handling the case that a disclosure conference in this case was not necessary since there had been no shipments of clear sheet glass from Taiwan for the period of July 1, 1979 through July 31, 1980, and the cash deposit margins preliminarily determined were arrived at based on the figures in the master list compiled by the Treasury Department for the period of July 1, 1974 to June 30, 1976.

Plaintiff's counsel renewed plaintiff's requests for a disclosure conference which were formally denied on May 19, 1981. On June 8, 1981, plaintiff filed a summons and complaint in this court requesting that a writ of mandamus be issued to compel the ITA to hold a disclosure conference as requested and also filed a motion for an order to show cause, a motion for a preliminary injunction, and a motion to shorten the time for defendants to answer the complaint. On June 19, 1981 defendants filed their opposition to plaintiff's motion for a preliminary injunction and a cross-motion to dismiss the complaint for failure to state a cause of action.

On July 6, 1981, Judge Landis denied plaintiff's motion for a preliminary injunction and plaintiff's motion to shorten defendants' time to answer to complaint, but continued the motion to dismiss. See 1 CIT —, Slip Op. 81-59 (July 6, 1981). Plaintiff's opposition to defendants' cross-motion to dismiss was filed on July 23, 1981 and defendants' reply thereto was filed on August 6, 1981.

I.

It is plaintiff's contention that this court has jurisdiction to require the ITA to hold the requested disclosure conference pursuant to 28 U.S.C. § 1581(i) which confers subject matter jurisdiction of any civil action commenced against the United States or its agencies arising from any law of the United States dealing with imports in this court. Additionally, plaintiff asserts that mandamus is an appropriate remedy to require the ITA to hold the requested disclosure conference as "final agency action," otherwise the ITA will continue to make its determination without ever having given plaintiff its requested disclosure.

Defendants claim that Commerce's decision on whether to grant disclosure is discretionary in that the regulations are not mandatory, but merely permissive; that the decision is a procedural consideration and that ITA's negative response to plaintiff's request is reviewable, if at all, in conjunction with review of its final determination as to the antidumping duties imposed or proposed in its annual review.

We agree that Commerce's decision was an interlocutory procedural decision reviewable under a section 516A review of the final results of the section 751 administrative review and should not be reviewed by this court at this time. A determination, ...