515 F.Supp. 780 (CIT. 1981), 79-8-01295, Alberta Gas Chemicals, Inc. v. United States

Docket NºCourt No. 79-8-01295.
Citation515 F.Supp. 780
Party NameALBERTA GAS CHEMICALS, INC., Plaintiff, v. UNITED STATES, Defendant.
Case DateMay 28, 1981
CourtCourt of International Trade

Page 780

515 F.Supp. 780 (CIT. 1981)

ALBERTA GAS CHEMICALS, INC., Plaintiff,

v.

UNITED STATES, Defendant.

Court No. 79-8-01295.

United States Court of International Trade.

May 28, 1981

Page 781

[Copyrighted Material Omitted]

Page 782

Freeman, Meade, Wasserman & Schneider, New York City, for plaintiff.

Thomas S. Martin, Acting Asst. Atty. Gen., Washington, D. C., David M. Cohen, Director, Commercial Litigation Branch, New York City, and Sheila N. Ziff, New York City, trial atty., for defendant.

On Defendant's Motion for Summary Judgment and Plaintiff's Cross-Motion for Summary Judgment.

NEWMAN, Judge.

Plaintiff, an importer of methyl alcohol (also known as methanol) from Canada, contests the exclusion of its merchandise from entry by the Regional Commissioner of Customs at the port of New York. Presently before the Court are defendant's motion for summary judgment and plaintiff's cross-motion for summary judgment.

I.

The material facts, undisputed, are:

1. On May 2, 1978 the United States Treasury Department ("Treasury") received information in proper form pursuant to the applicable Customs regulations (19 CFR ss 153.26 and 153.27) from E. I. du Pont de Nemours and Company alleging that methyl alcohol from Canada was being, or is

Page 783

likely to be, sold at less than fair value ("LTFV"); and that such sales were causing, or are likely to cause, injury to an industry in the United States within the meaning of section 201(a) of the Antidumping Act of 1921, as amended (19 U.S.C. s 160(a)).

2. On June 8, 1978 Treasury initiated an antidumping investigation, and on June 14, 1978 the required Antidumping Proceeding Notice appeared in the Federal Register (43 FR 25758).

3. A "Witholding of Appraisement Notice" was published in the Federal Register of December 19, 1978 (43 FR 59196).

4. On March 23, 1979 Treasury determined that methyl alcohol from Canada was being sold in the United States at LTFV within the meaning of the Antidumping Act of 1921, as amended, and that the dumping margins ranged from 9.9 percent to 108.6 percent, with a weighted average margin of 59.2 percent. That determination was published in the Federal Register on March 30, 1979 (44 FR 19090).

5. On June 29, 1979 the United States International Trade Commission ("Commission") by a three to two vote determined in Investigation AA 1921-202 that the domestic methyl alcohol producing industry was likely to be injured by reason of the importation of methyl alcohol from Canada which Treasury had determined was being, or was likely to be, sold at LTFV. The Commission's determination was published in the Federal Register on July 12, 1979 (44 FR 40734).

6. On July 23, 1979 Treasury issued a Finding of Dumping respecting methyl alcohol from Canada (TD 79-210), which finding was published in the Federal Register on July 27, 1979 (44 FR 44154).

7. The subject merchandise was exported from Canada on August 13, 1979 and imported into the United States on the same day. Entry documents (Consumption Entry No. 79-638078-8) and a check for estimated duties were presented by plaintiff to the appropriate Customs officer at the port of New York on August 15, 1979. However, plaintiff was not permitted by Customs to enter its merchandise without posting an antidumping bond (in accordance with 19 U.S.C. s 167 and 19 CFR s 153.50), which plaintiff refused to proffer.

8. On August 15, 1979 the imported merchandise was assigned General Order No. 110-79 and stored in a warehouse. 1

II.

Following the denial of its administrative protest on August 17, 1979, plaintiff commenced the present action alleging that the Regional Commissioner excluded its merchandise from entry and refused to deliver the subject merchandise without the filing of an antidumping bond.

The complaint contests the exclusion of plaintiff's merchandise from entry and delivery "and the legality of all orders and findings of the United States International Trade Commission and of the Secretary of the Treasury entering into the Regional Commissioner's decision". In this connection, plaintiff alleges that the sole ground for the exclusion of the subject merchandise from entry was that plaintiff did not file an Antidumping Bond; and that the sole ground for the Regional Commissioner's demand for a bond was the Secretary's Finding of Dumping. Continuing, the complaint alleges that the Regional Commissioner erred in demanding, under section 208 of the Antidumping Act of 1921, as amended (19 U.S.C. s 167), the posting of an Antidumping Bond (Customs Form 7591), and in excluding the merchandise from entry and delivery to plaintiff in the absence of such bond; that the Secretary's Finding of Dumping is illegal, ultra vires, null and void; and that plaintiff is entitled to the entry and delivery of its merchandise without

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the submission of an Antidumping Bond because no legal and valid Finding of Dumping covers the merchandise. The complaint then sets forth three causes of action, each of which controverts some phase of the antidumping proceedings leading to the Secretary's Finding of Dumping, including the Secretary's LTFV investigation and determination, and the subsequent affirmative determination by the Commission of likelihood of injury. The relief sought by plaintiff in its complaint is an adjudication that the Secretary's Finding of Dumping is illegal, null and void; that the Antidumping Act of 1921 is therefore inapplicable to exportations of methyl alcohol from Canada; and an order that the Regional Commissioner accept plaintiff's entry and deliver the merchandise to plaintiff without filing an antidumping bond. The complaint does not challenge the assessment of any duty nor seek a refund.

Defendant's prior motion to dismiss the action or alternatively for summary judgment was denied by this Court on January 17, 1980. Alberta Gas Chemicals, Inc. v. United States, 84 Cust.Ct. ----. C.R.D. 80-1, 483 F.Supp. 303 (1980). There, it was determined that pursuant to 28 U.S.C. s 1582(a)(4) this Court has jurisdiction to determine the legality of the exclusion of plaintiff's merchandise from entry for refusal to file an antidumping bond, and the Secretary's underlying finding of dumping. Defendant's alternative motion for summary judgment was held to be premature under Rule 8.2(a) inasmuch as defendant had not then filed an answer. Defendant has since filed its answer to the complaint, and has renewed its motion for summary judgment, which is presently before the Court.

I have concluded that defendant's motion for summary judgment should be denied and plaintiff's cross-motion for summary judgment should be granted.

III.

Under section 201(c)(1) of the Antidumping Act of 1921, as added by section 321(a) of the Trade Act of 1974, Pub.L. 93-618, 88 Stat. 1048, effective January 3, 1975 and in effect prior to January 1, 1980, Treasury was required to determine whether to initiate an investigation into the question of whether imported merchandise is being, or is likely to be, sold in the United States or elsewhere at LTFV within thirty days after receipt of specified information. 2 There is no dispute that Treasury received the appropriate information concerning the alleged dumping of methyl alcohol from Canada on May 2, 1978, and did not determine to initiate an investigation until June 8, 1978 (complaint and answer, paragraphs 30 & 35).

Plaintiff, relying heavily upon the legislative history of the 1974 amendment to the Antidumping Act which established the thirty day time limitation in section 201(c)(1), 3 and the subsequent legislative history of the Trade Agreements Act of 1979 (which repealed the Antidumping Act of 1921 and replaced it with an entirely new antidumping statute), 4 maintains that the

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time limitation is mandatory. Accordingly, plaintiff argues, Treasury lacked authority to act on the dumping complaint after the expiration of the thirty day period, and all antidumping proceedings directed against methyl alcohol from Canada were ultra vires and void.

Citing certain decisions of the federal Courts of Appeals construing similar statutory time limitations, defendant insists that the time limitation in section 201(c)(1) is not mandatory, but merely directory.

After careful consideration of the legislative history cited by plaintiff and the judicial precedents relied upon by defendant, I conclude that defendant's position is well taken. It is settled that "(a) statutory time period is not mandatory unless it both expressly requires an agency or public official to act within a particular time period and specifies a consequence for failure to comply with the provision" (emphasis added). Usery v. Whitin Machine Works, Inc., 554 F.2d 498, 501 (1st Cir. 1977); Fort Worth National Corporation v. Federal Savings and Loan Insurance Corporation, 469 F.2d 47, 58 (5th Cir. 1972). Accord: Diamond Match Co. v. United States, 44 Cust.Ct. 67, 74-75, C.D. 2154, 181 F.Supp. 952, 958-59 (1960), aff'd, 49 CCPA 52, C.A.D. 796 (1962).

In Usery, at page 501, the Court of Appeals commented:

The first question before us is whether the Act 5 ) was properly construed as ousting the Secretary (of Labor) of jurisdiction to make an eligibility determination (for worker adjustment assistance) after 60 days had passed following the filing of the petition. We observe that the statute does not specifically address this question. Although Congress clearly desired the expeditious treatment of such petitions, there is nothing in the statute which in any way suggests that the time limitation was designed to be jurisdictional. The Act neither purports to restrain the Secretary from acting after 60 days have passed nor specifies that any adverse consequences follow from the Secretary's failure to comply. In the absence of any such clear indications of Congressional intent that the limitations are to be strictly enforced, courts have...

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24 practice notes
  • Crawfish Processors Alliance v. United States, 050604 uscit, 02-00376
    • United States
    • May 6, 2004
    ...specifies a consequence for failure to comply with the provision." Alberta Gas Chemicals, Inc. v. United States, 1 CIT 312, 315-16, 515 F.Supp. 780, 785 (1981) (citations omitted). Commerce should not shirk its duty to meet statutory deadlines and should strive to carry out the mandate......
  • 592 F.Supp. 1318 (CIT. 1984), 81-1-00079, Rhone Poulenc, S.A. v. United States
    • United States
    • Federal Cases Court of International Trade
    • July 19, 1984
    ...aff'd, 67 CCPA 94, 626 F.2d 168 (1980), and cases cited therein; accord Alberta Gas Chemicals, Inc. v. United States, 1 C.I.T. 312, 321, 515 F.Supp. 780, 789 (1981); see also American Spring Wire Corporation v. United States, ---C.I.T. ----, ----, 590 F.Supp. 1273 (1984) and cases cited the......
  • 890 F.Supp. 1053 (CIT. 1995), 93-09-00553, Czestochowa v. United States
    • United States
    • Federal Cases Court of International Trade
    • May 23, 1995
    ...injury and product shifting may not be based on conjecture or speculation. Alberta Gas Chems. v. United States, 1 CIT 312, 321-25, 515 F.Supp. 780, 789-91 (1981). Accordingly, the Commission reasonably declined to cumulate French plate imports on the basis of Regarding Korea, imports during......
  • 630 F.Supp. 1317 (CIT. 1986), 84-4-00528, Philipp Bros., Inc. v. United States
    • United States
    • Federal Cases Court of International Trade
    • February 14, 1986
    ...C.I.T. ----, 594 F.Supp. 744, 748-50 (1984) (same program as Usery); Alberta Gas Chemicals, Inc. v. United States, 1 C.I.T. 312, 315-16, 515 F.Supp. 780, 785 (1981) (Treasury determination regarding dumping complaint) 10; Diamond Match Co. v. United States, 44 Cust.Ct. 67, Page 1324 181 F.S......
  • Request a trial to view additional results
24 cases
  • Crawfish Processors Alliance v. United States, 050604 uscit, 02-00376
    • United States
    • May 6, 2004
    ...specifies a consequence for failure to comply with the provision." Alberta Gas Chemicals, Inc. v. United States, 1 CIT 312, 315-16, 515 F.Supp. 780, 785 (1981) (citations omitted). Commerce should not shirk its duty to meet statutory deadlines and should strive to carry out the mandate......
  • 592 F.Supp. 1318 (CIT. 1984), 81-1-00079, Rhone Poulenc, S.A. v. United States
    • United States
    • Federal Cases Court of International Trade
    • July 19, 1984
    ...aff'd, 67 CCPA 94, 626 F.2d 168 (1980), and cases cited therein; accord Alberta Gas Chemicals, Inc. v. United States, 1 C.I.T. 312, 321, 515 F.Supp. 780, 789 (1981); see also American Spring Wire Corporation v. United States, ---C.I.T. ----, ----, 590 F.Supp. 1273 (1984) and cases cited the......
  • 890 F.Supp. 1053 (CIT. 1995), 93-09-00553, Czestochowa v. United States
    • United States
    • Federal Cases Court of International Trade
    • May 23, 1995
    ...injury and product shifting may not be based on conjecture or speculation. Alberta Gas Chems. v. United States, 1 CIT 312, 321-25, 515 F.Supp. 780, 789-91 (1981). Accordingly, the Commission reasonably declined to cumulate French plate imports on the basis of Regarding Korea, imports during......
  • 630 F.Supp. 1317 (CIT. 1986), 84-4-00528, Philipp Bros., Inc. v. United States
    • United States
    • Federal Cases Court of International Trade
    • February 14, 1986
    ...C.I.T. ----, 594 F.Supp. 744, 748-50 (1984) (same program as Usery); Alberta Gas Chemicals, Inc. v. United States, 1 C.I.T. 312, 315-16, 515 F.Supp. 780, 785 (1981) (Treasury determination regarding dumping complaint) 10; Diamond Match Co. v. United States, 44 Cust.Ct. 67, Page 1324 181 F.S......
  • Request a trial to view additional results