PPG Industries, Inc. v. US

• Citation: 13 CIT 183,708 F. Supp. 1327
• Decision Date: 08 March 1989
• Docket Number: Court No. 86-12-01546.
• 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

708 F. Supp. 1327

13 CIT 183

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

Court No. 86-12-01546.

United States Court of International Trade.

March 8, 1989.

Stewart and Stewart, Terence P. Stewart and David Scott Nance, for plaintiff.

John R. Bolton, Asst. Atty. Gen., David M. Cohen, Director, Commercial Litigation Branch, Civ. Div., U.S. Dept. of Justice, Platte B. Moring, III, for defendant.

Brownstein, Zeidman & Schomer, Irwin P. Altschuler and David R. Amerine, for defendants-intervenors.

OPINION

CARMAN, Judge:

The defendant Department of Commerce (Commerce) moves pursuant to Rule 71(a) of this Court to supplement the administrative record. The plaintiff, PPG Industries, Inc. (PPG), opposes the motion and claims that allowing Commerce to supplement the record to include a document it relied upon in making its determination would violate PPG's due process rights under the Fifth Amendment. PPG requests the document be excluded from the record or, in the alternative, that a remand be ordered to allow PPG to comment upon the document and to submit other evidence on the issue of compensating balances and for limited discovery to determine whether the International Trade Administration (ITA) considered other information in making its final determination. The defendant-intervenors Vitro Flex, S.A. and Cristales Inastillables De Mexico, S.A. support the motion.

On the basis of the papers submitted, the arguments of the parties, the relevant statutes and regulations, and the reasons set forth herein, this Court remands the case to the ITA to supplement the administrative record with the portion of the verification report from Commerce's administrative review in Litharge, Red Lead, and Lead Stabilizers From Mexico, 51 Fed. Reg. 37,319 (1986), which was omitted from the administrative record. Further, the ITA shall permit all interested parties participating in the administrative review of the countervailing duty determination in Fabricated Automotive Glass From Mexico, 51 Fed.Reg. 44,652 (1986), to submit to Commerce comments related and limited to the portions of the verification report supplementing the record.

BACKGROUND

In the action underlying this motion plaintiff, PPG Industries, Inc., contests certain aspects of the final determination of the International Trade Administration of the Department of Commerce, in Fabricated Automotive Glass From Mexico, 51 Fed.Reg. at 44,652. On February 27, 1987 Commerce filed the administrative record of this action with the Court. Subsequently, Commerce determined that one document considered by the Department in conducting its administrative review of the countervailing duty determination in Fabricated Automotive Glass From Mexico, was omitted from the record. The document sought to be added to the record is an excerpt from the verification report of Commerce's administrative review in Litharge, Red Lead, and Lead Stabilizers From Mexico, 51 Fed.Reg. at 37,319, which contains public information provided by the Government of Mexico regarding the compilation of information used in its publication of national average interest rates, known as the Indicadores Economicos ("I.E."). Commerce claims to have relied upon information in the Litharge verification report relating to the consideration by the Bank of Mexico of compensating balances in its publication of the effective interest rates.

Supporting the motion and Commerce's contention that the document was relied upon in its final determination, is the Declaration of Paul McGarr, the Commerce official responsible for maintaining the administrative record in this case, which states in pertinent part:

3. The submitted document formed the basis for the second sentence of the following statement in the final results of Fabricated Automotive Glass From Mexico and was relied upon by the Department in making its determination in the administrative review that compensating balances were included in the interest rate information provided by the Bank of Mexico:

The effective I.E. interest rates are based on data received from a sample of companies representing a cross section of the economy. These effective rates include finance charges, e.g. commissions, fees for opening a line of credit, fees for credit renewal, prepayment of interest, compensating balances, etc. and may also include compounding of interest, since many of the loans included in the Bank's sample have short (2-3 month) terms.

51 Fed.Reg. 44,653.

Declaration of Paul McGarr, (Program Manager, Office of Compliance, Import Administration, International Trade Administration, Department of Commerce), in support of Defendant's Motion to Supplement the Administrative Record, at 2.

The document in question was never included in the administrative record compiled during the administrative review of this case. Neither the existence of the document nor the agency's consideration of it were brought to the attention of PPG prior to litigation in this Court. Plaintiff neither saw the document nor had an opportunity to comment upon it.

DISCUSSION

At the outset, the Court notes that the standard of review governing the merits of the underlying case is whether the ITA's determination is "unsupported by substantial evidence on the record, or otherwise not in accordance with law." 19 U.S.C. § 1516a(b)(1)(B) (1982). This Court cannot conduct a de novo review. See, e.g., Beker Industries Corp. v. United States, 7 CIT 313, 316-17, 1984 WL 3727 (1984); Melamine Chemicals, Inc. v. United States, 2 CIT 113, 116, 1981 WL 2484 (1981). "The court may not substitute its judgment for that of the agency when the choice is `between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo....'" American Spring Wire Corporation v. United States, 8 CIT 20, 22, 590 F.Supp. 1273, 1276 (1984) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 464-65, 95 L.Ed. 456 (1951)), aff'd sub nom. Armco, Inc. v. United States, 3 Fed. Cir. (T) 123, 760 F.2d 249 (1985).

Judicial review is limited to the evidence contained in the administrative record. The record for review consists of all information presented to or obtained by the Secretary, the administering authority or the Commission during the administrative proceeding and all other material as set forth in 19 U.S.C. § 1516a(b)(2) (1982).¹ This Court, along with any subsequent reviewing court on appeal, must defer to the facts found by the agency. "The Court does not sit as a finder of fact with respect to the administrative record presented to it for review." Industrial Fasteners Group, American Importers Assoc. v. United States, 2 CIT 181, 190, 525 F.Supp. 885, 892 (1981), aff'd, 1 Fed.Cir. (T) 81, 710 F.2d 1576 (1983). It is for this reason that the agency's notice of both preliminary and final countervailing duty determinations must include "the facts and conclusions of law upon which the determination is based." 19 U.S.C. §§ 1671d(d), 1671b(f) (1982). "The court's role is to review the fact-finding done by the administrative agency and the legal conclusions reached by the agency's application of legal principles to those facts, and to determine whether those findings and legal conclusions are supported by substantial evidence and are in accordance with law." Industrial Fasteners Group, 2 CIT at 190, 525 F.Supp. at 892-93. The Supreme Court has noted:

If the record before the agency does not support the agency action, if the agency has not considered all relevant factors, or if the reviewing court simply cannot evaluate the challenged agency action on the basis of the record before it, the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation.

Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744, 105 S.Ct. 1598, 1607, 84 L.Ed. 2d 643 (1985).

In various amendments to the Tariff Act of 1930, Congress has set out a variety of procedures which parties to countervailing duty cases are entitled to rely upon. Section 774(a) requires both the Department of Commerce and the International Trade Commission to hold hearings in the course of their investigations, upon the request of any party, prior to a final determination. 19 U.S.C. 1677c(a) (1982 & Supp. IV 1986). Notice of the hearings must be published in the Federal Register. 19 U.S.C. 1677c(b) (1982). Commerce has implemented this hearing requirement in its regulations which provide an opportunity for interested parties to present views orally though cross-examination under oath is precluded.² 19 C.F.R. § 355.35 (1986). Parties are also permitted to submit pre- and post-hearing briefs and Commerce regulations provide for the submission to the agency of information and written views from interested parties during the investigation. 19 C.F.R. §§ 355.34, 355.35 (1986). Interested parties also have a right upon request to be apprised of the progress of the investigation. 19 U.S.C. § 1677f(a)(2) (1982). Congress also provided for the confidentiality of business proprietary information and the transcription and inclusion in the record of all ex parte meetings. 19 U.S.C. 1677f(a)(3) (1982 & Supp. IV 1986).³

A telephonic conference between the Court and attorneys for all parties to this action was conducted on January 26, 1989 at which time the Commerce Department maintained that since countervailing duty investigations are non-adjudicatory and fact-finding in nature, due process does not require that parties to a determination be given opportunity to comment upon the information gathered by Commerce. Defendant and defendant-intervenors cite Timken Co. v. United States, ___ CIT ___, 699 F.Supp. 300 (1988), as controlling authority in support of this proposition. Further, Commerce argues that even if some due process safeguards are due...