Pasco Terminals, Inc. v. United States , 634 F.2d 610 ( 1980 )

Baldwin, Judge.

This is an appeal from a judgment of the U.S. Customs Court, 83 Cust. Ct. 65, C.D. 4823, 477 F. Supp. 201 (1979), granting the U.S. motion for summary judgment; denying the cross-motion for summary judgment of Pasco Terminals, Inc. (Pasco); and dismissing Pasco’s action to recover dumping duties that were assessed on four entries of elemental sulfur exported from Mexico. We affirm.

Before the Customs Court (now the U.S. Court of International Trade) Pasco did not challenge the less than fair value (LTFV) determination of the Secretary of the Treasury nor the Customs Service’s computation of dumping duties. Rather, Pasco claimed invalidity of the 1972 determination of the U.S. Tariff Commission¹ (Commission) that a domestic industry was being injured by reason of the importation of elemental sulfur from Mexico which was being, or was likely to be, sold at less than fair value within the meaning of section 201(a) of the Antidumping Act of 1921, as amended (19 U.S.C. 160(a)). Pasco based its claim on the following contentions:

(1) The Commission proceeding was procedurally defective in that: (a) The Commission failed to abide by its own rules of practice and procedure by deciding to receive an exhibit on a confidential basis; and (b) the Commission violated due process rights when in the course of its investigation and factfinding hearing it refused to permit inspection of a confidential exhibit for cross-examination purposes and restricted cross-examination of a witness; and

(2) The Commission determination of injury was arbitrary, capricious, an abuse of discretion, and not according to law.

The issue before us is whether or not the Customs Court was correct in rejecting Pasco’s contentions and in upholding the Commission’s injury determination.

Additional background and relevant facts are thoroughly presented in the Customs Court opinion and need not be repeated here.²

OPINION

The Customs Court held that: (1) The Commission’s decision to receive exhibit 2 on a confidential basis was in full compliance with its own rules of practice and procedure; (2) no due process violation occurred in the course of the Commission’s investigation and fact-finding hearing from its refusal to permit inspection of a confidential exhibit for purposes of cross-examination and its restriction of cross-examination of a witness; and (3) the Commission’s injury determination was not arbitrary, capricious, or an abuse of discretion, nor was it contrary to law. After considering the arguments of the parties and after reviewing the record before us, we are persuaded that the Customs Court’s holding is correct.

Accordingly, we affirm the judgment of the Customs Court, and adopt the court’s opinion as our own.

1 The U.S. Tariff Commission was subsequently renamed the U.S. International Trade Commission by sec. 171(a) of the Trade Act of 1974 (19 U.S.C. 2231(a) (1975)).

2 The facts are drawn from a limited record. The portions of the Commission's record brought before the Customs Court consisted only of a certified copy of the transcript of the public hearing and exhibits introduced before the Commission during that hearing and a copy of the Commission’s determination of injury including the two statements of reasons for the affirmative determination. Neither party in this case sought discovery of the entire investigative record before the Commission which included, in addition to the evidence adduced at the public hearing, written submissions from interested parties and factual information obtained by the Commission's staff from questionnaires, personal interviews, and other sources. Rather, both parties agreed that the Customs Court should decide the case on the limited record before it.