519 F.Supp. 911 (CIT. 1981), 77-4-00553, SCM Corp. v. United States

Docket Nº:Court No. 77-4-00553.
Citation:519 F.Supp. 911
Party Name:SCM CORPORATION, Plaintiff, v. UNITED STATES, Defendant, Brother International Corporation, Party-in-Interest.
Case Date:July 01, 1981
Court:Court of International Trade
 
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Page 911

519 F.Supp. 911 (CIT. 1981)

SCM CORPORATION, Plaintiff,

v.

UNITED STATES, Defendant,

Brother International Corporation, Party-in-Interest.

Court No. 77-4-00553.

United States Court of International Trade.

July 1, 1981

Frederick L. Ikenson, Washington, D. C., for plaintiff SCM Corp.

Stuart E. Schiffer, Acting Asst. Atty. Gen., Dept. of Justice, Civil Division, Commercial Litigation Branch, Washington, D. C., David M. Cohen, Director, Commercial Litigation Branch; (Sheila N. Ziff, New York City, on briefs), for defendant United States.

Tanaka, Walders & Ritger, Washington, D. C. (H. William Tanaka, Lawrence R. Walders and Wesley K. Caine, Washington, D. C., on briefs), for party-in-interest Brother International Corp.

MEMORANDUM AND ORDER

NEWMAN, Judge:

Plaintiff ("SCM") a domestic portable typewriter manufacturer challenges, pursuant

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to 19 U.S.C. s 1516(c) (1976), the negative antidumping injury determination made on June 19, 1975 by the United States International Trade Commission ("Commission") in the case of Portable Electric Typewriters From Japan, U.S.I.T.C. Public 732, Investigation No. AA1921-145 (40 FR 27079 (1975)). Brother International Corporation ("Brother") an importer of portable electric typewriters ("PETs") from Japan and the consignee of New York, N.Y. Consumption Entry No. 77-302804, the immediate subject of the instant action appears as the party-in-interest pursuant to 19 U.S.C. s 1516(f).

Presently before me are: plaintiff's motion for judgment directing the Secretary of Commerce to publish a finding of dumping covering PETs from Japan; defendant's cross-motions, in the alternative, to dismiss on the ground of mootness, to stay the instant proceedings pending final disposition of the issues involved in Nakajima All Co., Ltd. v. United States, Court No. 80-6-00933, and Silver Reed America, Inc. v. United States, Court No. 80-6-00934, or to remand the instant proceedings to the Commission for reconsideration of its negative injury determination upon the basis of the record in the instant matter supplemented by the record in Portable Electric Typewriters From Japan, Investigation No. 731-TA-12, 45 FR 30186 (1980), a subsequent injury investigation involving PETs from Japan wherein the Commission made an affirmative determination; and also a cross-motion of the party-in-interest for summary judgment (which is a renewal of a prior cross-motion). 1

I.

The pertinent history of this litigation follows: 2

In its Investigation No. AA1921-145, the Commission determined, by a three to two vote with one abstention, that an industry in the United States is not being or likely to be injured or prevented from being established by reason of PETs from Japan sold at less than fair value ("LTFV") within the meaning of the Antidumping Act, as amended (19 U.S.C. s 160 et seq. (1970 & Supp. V 1975). 3

Although the imported articles found to be sold at LTFV by Treasury 4 and covered by the Commission's notice of investigation were PETs, for purposes of identifying "what is the industry most likely to be affected" by the imported articles, the majority considered, alternatively, the facilities devoted to the production of all portable typewriters (both electric and manual) or the facilities devoted to the production only of PETs. The majority found that in either instance the affected domestic industry was SCM, the sole United States producer of portable typewriters, both electric and manual.

While acknowledging that imports of PETs from Japan sold at LTFV had obtained a significant share of the United States market for portable typewriters during the period of the Treasury Investigation (October 1973 through March 1974), the majority concluded that "imports penetration alone is not an adequate basis for determining injury" (40 FR 27080). Chairman Leonard considered "that import penetration indicates injury only when it is established that the penetration is at the expense of the

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domestic industry and causes lost sales " (40 FR 27080, fn.2) (Emphasis added). Implicitly, therefore, Chairman Leonard found there were no lost sales. However, the majority's Statement of Reasons reveals no specific finding concerning lost sales. The dissenting Commissioners, on the other hand, found that SCM "has clearly lost a considerable share of the market and consequently lost considerable sales " (40 FR 27081) (emphasis added).

The majority further found that, other than market penetration, none of the tests of injury applied in this case showed that an industry in the...

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