City Lumber Co. v. United States

Decision Date13 April 1972
Docket NumberCustoms Appeal No. 5411.
PartiesCITY LUMBER CO. and Port Everglades Steel Corp., Appellants, v. The UNITED STATES, Appellee.
CourtU.S. Court of Customs and Patent Appeals (CCPA)

Guzik & Boukstein, New York City, attorneys of record, for appellants; Frank G. Parker, New York City, Gunter von Conrad, Washington, D. C., of counsel.

L. Patrick Gray, III, Asst. Atty. Gen., Andrew P. Vance, Chief, Customs Section, Frederick L. Ikenson, New York City, for the United States.

Before WORLEY, Chief Judge, RICH, ALMOND, BALDWIN, and LANE, Judges.

RICH, Judge.

This case involves the Antidumping Act of 1921, as amended, appellants objecting to the imposition of dumping duties on three importations of portland gray cement from Portugal during 1960, two of which were entered at Bridgeport, Connecticut, and the third at Philadelphia, Pennsylvania. The three appeals to reappraisement were consolidated in the trial court. Appellants claim that the imposition of dumping duties was illegal because the action taken by the United States Tariff Commission (hereinafter "Commission"), resulting in the imposition, was arbitrary, capricious, not supported by substantial evidence, in excess of statutory authority, and ultra vires. They also contend the Commission acted on an erroneous theory of law.

The evidence is documentary and consists entirely of a certified record of the public proceedings before the Commission.

This appeal is from the judgment of the United States Customs Court, First Division, Appellate Term, 64 Cust.Ct. 826, 311 F.Supp. 340, A.R.D. 269 (1970), affirming the judgment of a single judge sitting in reappraisement, 61 Cust.Ct. 448, 290 F.Supp. 385, R.D. 11557 (1968), which upheld the imposition of the dumping duties.

The statute principally involved here is section 201 of the Antidumping Act of 1921, as amended, 19 U.S.C. § 160. Section 201(a) reads, in part (emphasis ours):

(a) Whenever the Secretary of the Treasury (hereinafter called the "Secretary") determines that a class or kind of foreign merchandise is being, or is likely to be, sold in the United States or elsewhere at less than its fair value, he shall so advise the United States Tariff Commission, and the said Commission shall determine within three months thereafter whether an industry in the United States is being or is likely to be injured, or is prevented from being established, by reason of the importation of such merchandise into the United States. The said Commission, after such investigation as it deems necessary, shall notify the Secretary of its determination, and, if that determination is in the affirmative, the Secretary shall make public a notice (hereinafter in sections 160-173 of this title called a "finding") of his determination and the determination of the said Commission. * * * The Secretary's finding shall include a description of the class or kind of merchandise to which it applies in such detail as he shall deem necessary for the guidance of customs officers.

In accordance with the procedure outlined in Section 201(a), the following events took place, leading to this appeal:

July 20, 1961, the Acting Secretary of the Treasury advised the Commission, pursuant to § 201(a), that cement from Portugal "is being, or is likely to be, sold in the United States at less than fair value as that term is used in the Antidumping Act."

July 24, 1961, the Commission instituted an investigation to determine whether an industry in the United States was being, or was likely to be, injured by the importation of cement from Portugal.

September 14, 1961, pursuant to public notice, the Commission held a hearing at which representatives of the importers, the Portuguese exporter, and domestic producers appeared. A transcript of 182 pages of testimony resulted and exhibits and briefs were filed.

October 20, 1961, the Commission issued its determination "that an industry in the United States is being injured by reason of the importation of portland gray cement from Portugal at less than fair value within the meaning of the Antidumping Act, 1921, as amended." That determination was accompanied by a written "Majority Statement of Reasons" and the "Views of Commissioners Talbot and Overton," who dissented, eight double-spaced typewritten pages in all, identified as TC Publication 37.

October 31, 1961, the Assistant Secretary of the Treasury made public the finding of dumping.

Thereafter the importations were appraised and dumping duties assessed, appeals for reappraisements were taken to a single judge of the Customs Court who entered judgment July 9, 1968, affirming the action of the appraisers in all respects. Application for review by the Appellate Term was filed August 5, 1968, and a judgment of affirmance was entered March 26, 1970. Petition for review by this court was filed May 25, 1970.

All three judges of the Appellate Term were in agreement with the decision of the single judge and, at the end of an extensive opinion, expressly adopted and incorporated by reference into their own opinion "each and every finding of fact and conclusion of law made by the court below." One of the several concurrent findings below is that the statutory procedural requirements of the Antidumping Act were meticulously followed by the Treasury Department and by the Tariff Commission. Appellants do not question that this is so.

The Customs Court also expressly found that there was substantial evidence to support the Commission's finding of injury. While appellants contend, as part of their general attack on the Commission's determination, that it is unsupported by substantial evidence, they do nothing to support that claim but rather take a narrower approach, basing their arguments on certain aspects of the evidence which the Commission used in support of its determination, which we will consider later. The Commission, on the other hand, stated:

In arriving at a determination in this case, due consideration was given by the Tariff Commission to all written submissions from interested parties, all testimony adduced at the hearing, and all factual information obtained by the Commission\'s staff.

The record does not reveal what information the Commission obtained through its staff.

As the Appellate Term opinion observes, under the Antidumping Act Congress delegated to the Commission a broad discretionary power to determine whether an industry is being, or is likely to be, injured by the sale of imports at less than fair value. The courts have a very limited power of review over the Commission's determinations. It is not the judicial function to review or to weigh the evidence before the Commission or to question the correctness of findings drawn therefrom. Kleberg & Co. (Inc.) v. United States, 71 F.2d 332, 21 CCPA 110, T.D. 46446 (1933); compare United States v. George S. Bush & Co., 310 U.S. 371, 60 S.Ct. 944, 84 L.Ed. 1259 (1940). As stated in Kleberg, our review of determinations of injury or likelihood of injury in antidumping cases does not extend beyond determining whether the Commission has acted within its delegated authority, has correctly interpreted statutory language, and has correctly applied the law. As indicated in the Bush opinion, "No question of law is raised when the exercise of * * * discretion is challenged."

As foundation for further discussion of the contentions of the parties, it is necessary to explain some of the background facts and what the Commission had to say about them in its Determination of Injury. Prior to the events which led to the present case, the two importers who are appellants here and a third importer, not now a party but which participated in the Commission's hearing, had been jointly or severally involved in the importation of cement from Sweden and Belgium, sold in this country at less than fair value and determined by the Commission to have resulted in injury to domestic producers who had been compelled by the competition to lower prices.

The present importers argued before the Commission that their imports of Portuguese cement had not injured domestic producers because they had merely met the prevailing prices, to which the Commission replied that to embrace this conclusion one must overlook the fact that the prices thus "met" had already been depressed by earlier imports of dumped cement from countries other than Portugal and described the Portuguese imports as having a "hammering effect" on prices. The Commission concluded:

Depressed prices kept depressed by recourse to new forms of the old depressant constitutes, for the domestic producers, merely a prolongation of the very injury from which it was hoped they had already gained relief.
* * * * * *
* * * We must conclude, therefore, that with the purpose of dumping already having been accomplished in the U. S. market, the resultant depressed prices leave little consolation to the domestic industry forced to meet such prices and thereby compelled to suffer continued
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