Royal Business Machines, Inc. v. United States
| Decision Date | 29 December 1980 |
| Docket Number | Court No. 80-11-00056. |
| Citation | 507 F. Supp. 1007,1 CIT 80 |
| Parties | ROYAL BUSINESS MACHINES, INC., Plaintiff, v. The UNITED STATES, Philip M. Klutznick, Secretary of Commerce; Robert E. Herzstein, Under Secretary of Commerce for International Trade, Department of Commerce: Robert E. Chasen, Commissioner of Customs, Los Angeles, California, Defendants. Smith-Corona Group, Consumer Products Division, SCM Corporation, Intervenor. |
| Court | U.S. Court of International Trade |
Rode & Qualey, New York City, Richard F. Treacy, Jr., Asst. Gen. Counsel, Washington, D. C. (Michael S. O'Rourke and Patrick Gill, New York City, of counsel), for plaintiff.
Alice Daniel, Asst. Atty. Gen., Washington, D. C. (Velta A. Melnbrencis, New York City, of counsel), for defendants.
Eugene L. Stewart, Washington, D. C. (Terence P. Stewart, of counsel), for intervenors.
Plaintiff, the importer of a typewriter known as the Royal Administrator, brought this action on November 18, 1980, pursuant to 5 U.S.C. § 7021 and 28 U.S.C. § 1581(i)2 asking the Court to exercise its power under 28 U.S.C. §§ 15853 and 2643(c)(1)4 to enjoin defendants from "retroactively" modifying the antidumping duty order of May 9, 1980,5 to include the Royal Administrator typewriter and further asking the Court to direct the appropriate officials to liquidate entries of the typewriter and cancel the antidumping bonds which had been required on entries of that typewriter. A temporary restraining order was issued and was extended until the hearing on the preliminary injunction on December 16, 1980, at which time an extension until December 30, 1980 was consented to.
Defendants have moved to dismiss for lack of jurisdiction and for summary judgment. The Smith-Corona Group, Consumer Products Division, SCM Corporation (hereinafter, SCM) was allowed to intervene and filed a motion to dismiss. SCM, a domestic manufacturer of typewriters, was the petitioner in the administrative proceeding of which the May 9th final order was an outgrowth.
At the hearing on plaintiff's motion for a preliminary injunction, responses to all pending motions were filed, following which some additional filings, mandatory and voluntary, were made.6 Based upon all these papers and proceedings the Court summarizes the history of this dispute as follows:
On April 9, 1979, SCM filed a petition with the Commissioner of Customs for the initiation of an antidumping proceeding under 19 U.S.C. § 160(c) (1979) (Current version at 19 U.S.C. § 1673a(b)(1)). The Royal Administrator typewriter was included, among others, as the object of the petition. On May 18, 1979, the Treasury Department published a notice of the initiation of an investigation of whether the typewriters were being sold at less than their fair value (44 Fed.Reg. 29191). On November 15, 1979, it published notice of an extension of the investigation (44 Fed.Reg. 65853). On December 28, 1979, it then issued a notice of the withholding of the appraisement of the typewriters based on its tentative determination that they were being sold at less than their fair value. (45 Fed.Reg. 1220).
Thereafter, on January 1, 1980, the new antidumping law (contained in the Trade Agreements Act of 1979, Pub.L. 96-39) became effective; on January 2, 1980, the Treasury Department's responsibility for the administration of that law was transferred to the Commerce Department by the President's Reorganization Plan No. 3 of 1979 (44 Fed.Reg. 69275 and 45 Fed.Reg. 9931) and on January 4, 1980, the Commerce Department referred the proceeding to The International Trade Commission for determination under 19 U.S.C. § 1673d () of whether a United States industry was being materially injured. Notice of the injury investigation was published by the ITC on January 17, 1980 (45 Fed.Reg. 3401.)
On March 21, 1980, the Department of Commerce published a final determination under 19 U.S.C. § 1673d(a) that the typewriters involved were being sold at less than fair value (45 Fed.Reg. 28416) and the ITC followed on May 7, 1980 with the publication of its final determination under 19 U.S.C. § 1673d(b), that the sales were causing material injury to an industry in the United States. (45 Fed.Reg. 30186).
The final determination of sales at less than fair value was directed to portable electric typewriters and made plain from its statement of reasons that the product of Silver Seiko, the manufacturer of the typewriter at issue, was included.
The final injury determination by the ITC specifically concluded that "The Royal Administrator .... is appropriately considered a portable electric typewriter for the purposes of this investigation."
On May 9, 1980, the Department of Commerce published a Final Antidumping Duty Order (45 Fed.Reg. 30613) under the authority of 19 U.S.C. § 1673e.7 It directed Customs officers to assess antidumping duty against the merchandise subject to the previous withholding of appraisement and all future entries and to require the deposit of estimated antidumping duties on all the affected entries. The order was directed to portable electric typewriters and defined the term by reference to item 676.0510 of the Tariff Schedules of the United States, a statistical extension (for portable typewriters) of the TSUS item 676.05, covering all typewriters.8 The description in the final order used the general language by which the subject of the administrative proceeding had been identified from the inception of the investigation.
Plaintiff had steadfastly argued before the Commerce Department and the ITC that the Royal Administrator was not a portable typewriter. During the pendency of the investigations it assertedly received some encouragement on that point from the National Import Advisory specialist of the Customs Service and had been permitted by the Customs Service to make a few of its entries under a non-portable statistical number.
Following the publication of the antidumping duty order, plaintiff continued to press its cause before the Department of Commerce in a 27 page letter of May 30, 1980.9 The Department of Commerce forwarded that letter with a request for the advice of the Customs Service as to the proper classification, inter alia, of the Royal Administrator, and stated that "if the models in question are classified under item 676.0540, TSUSA, non-portable they would not be within the scope of our Antidumping Duty Order and would not be subject to antidumping duties."10
On August 7, 1980, the Customs Service sent its "determination" to the Department of Commerce including "holdings" to the effect that the Royal Administrator was an electric typewriter within statistical item 676.0540 non-portable and was therefore removed from the scope of the Antidumping order and the finding of material injury.11
Thereafter, the Commerce Department evidently took the view that the Royal Administrator was included in its final antidumping duty order and, according to plaintiff, was about to issue a directive to that effect which Commerce termed "clarifying", but which plaintiff believed would place it under the antidumping order for the first time.12
In an affidavit accompanying defendant's motion for summary judgment, the Commerce Department takes the position that it has the responsibility and the authority to determine whether the Royal Administrator" ... remains within the scope of the May 9, 1980, antidumping duty order" and has not yet made a determination of its position with respect to that question.13
The above brief history demonstrates what appears to be some confusion in the administration of the antidumping law, particularly with regard to the role of the antidumping duty order of 19 U.S.C. § 1673e.14
SCM looked to the antidumping duty order as a clear final expression of the result of the previous less than fair value and injury determinations.
Plaintiff looked to the order as an indication that its typewriter was not included therein and further believed that this was the equivalent of not being aggrieved by any final agency determination. Accordingly, it did not commence the action for judicial review provided for in 19 U.S.C. § 1516a(a)(2)(B). Instead, in its view, it pressed the Department of Commerce to confirm the fact that its typewriter had not been included in the order.
The Department of Commerce evidently looked at the order as a malleable medium for expressing its own concept of the result of the previous administrative determinations, or as something within its authority to later modify.
The Customs Service evidently thought that, by virtue of its authority and expertise in matters of classification, (or at least as a result of the request for advice from Commerce) it could influence the interpretation or enforcement of the order.
All these views were mistaken to one degree or another. To a certain extent some confusion is understandable in the early phases of the administration of a law which is complex in its operation, demanding in the coordinated relationship it requires between three independent agencies, and particularly difficult for the way the Department of Commerce is given decisional authority at some stages and denied it at others.
Nevertheless, the statutory scheme, as it bears on this dispute, is clear. The rights of the affected parties, the authority of the agencies, and their relationship are all precisely delineated.
To begin with, the issuance of a final antidumping duty order is purely a ministerial act. It is not the final expression of the administrative determinations. The final order is really the first step in the enforcement of the consequences mandated by statute when it has been determined that certain articles are being sold at less than their fair value and are materially injuring a domestic industry. It is the first step in the mandatory assessment of antidumping duty.15
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