529 F.Supp. 670 (CIT. 1981), 81-114, Matsushita Elec. Indus. Co. Ltd. v. United States

Docket Nº:81-114, Court No. 81-7-00901.
Citation:529 F.Supp. 670
Party Name:MATSUSHITA ELECTRIC INDUSTRIAL CO. LTD., et al., Plaintiffs, v. UNITED STATES, et al., Defendants.
Case Date:December 15, 1981
Court:Court of International Trade
 
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529 F.Supp. 670 (CIT. 1981)

MATSUSHITA ELECTRIC INDUSTRIAL CO. LTD., et al., Plaintiffs,

v.

UNITED STATES, et al., Defendants.

No. 81-114, Court No. 81-7-00901.

United States Court of International Trade.

Dec. 15, 1981

Frederick L. Ikenson, P. C., Washington, D. C. (Frederick L. Ikenson, Washington, D. C., and J. Eric Nissley of counsel), for Zenith Radio Corp., defendant-intervenor.

Sharretts, Paley, Carter & Blauvelt, P. C., New York City (Gail T. Cumins and Ned Narshak, New York City, of counsel), for plaintiffs Sanyo Electric Co. Ltd., Sanyo Electric Inc. and Sanyo Manufacturing Corp.

Weil, Gotshal & Manges, New York City (A. Paul Victor, Stuart M. Rosen and Harry M. Davidow, New York City, of counsel) for plaintiffs Matsushita Electric Industrial Co., Ltd., Matsushita Electric Corp. of America, Panasonic Hawaii, Inc., and Panasonic Sales Co., a Div. of Matsushita Electric of Puerto Rico, Inc., Victor Co. of Japan, and U. S. JVC Corp.

Tanaka, Walders & Ritger, Washington, D. C. (H. William Tanaka and Lawrence R. Walders, Washington, D. C., of counsel) for plaintiffs Hitachi Ltd., Hitachi Sales Corp. of America, and Hitachi Sales Corp. of Hawaii.

Arent, Fox, Kintner, Plotkin & Kahn, Washington, D. C. (Stephen L. Gibson and Rodney F. Page, Washington, D. C., of

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counsel), for plaintiffs Toshiba Corp., Toshiba America, Inc., and Toshiba Hawaii, Inc.

Baker & McKenzie, Washington, D. C. (Thomas P. Ondeck, Washington, D. C., of counsel), for plaintiff Mitsubishi Electric Corp.

Wender, Murase & White, New York City (Peter J. Gartland and Robert D. Piliero, New York City, of counsel), for plaintiff Sharp Electronics Corp.

Siegel, Mandell & Davidson, P. C., New York City (Brian Goldstein, New York City of counsel), for plaintiff General Corp. of Japan.

United States International Trade Commission, Office of the Gen. Counsel, Michael H. Stein, Gen. Counsel, Edward M. Lebow, Asst. Gen. Counsel, Washington, D. C., and Michael B. Jennison, Atty. Adviser, for the defendant United States.

WATSON, Judge:

Defendant-Intervenor, the Zenith Radio Corporation (Zenith), has moved to dismiss this consolidated action for lack of subject matter jurisdiction. The motion is opposed by plaintiffs and by the defendant United States.

The action was brought under Section 516A(a)(2)(B)(iii) of the Tariff Act of 1930, as amended, (19 U.S.C. s 1516a(a)(2)(B)(iii)), by various importers and manufacturers of Japanese television receivers to challenge a determination made in 1981 1 by the United States International Trade Commission (ITC) that an industry in the United States would be threatened with material injury if the ITC were to modify or revoke an antidumping finding made in 1971. 2 The challenged determination was made following a review under section 751(b) of the Tariff Act of 1930, as added by section 101 of the Trade Agreements Act of 1979 (19 U.S.C. s 1675(b)). The original dumping finding was made under the Antidumping Act of 1921 (19 U.S.C. s 160 et seq. (1970)). 3

Although Zenith is in general agreement with the determination, it argues that the ITC has no authority to undertake a review under section 751(b) of determinations made under the Antidumping Act of 1921. In effect Zenith is arguing that, except for being subject to review on an annual basis to determine the amount of the antidumping duty under section 751(a), (19 U.S.C. s 1675(a)), the underlying determinations that there were sales at less than fair value and that injury resulted are forever unreviewable, unmodifiable and irrevocable.

Zenith relies on a close reading of section 751 and a fine distinction between calling the final result of an antidumping investigation a "finding" under the Antidumping Act of 1921 and an "order" under the Trade Agreements Act of 1979.

The relevant part of the section under discussion reads as follows:

(a) Periodic review of amount of duty.-

(1) In general.-At least once during each 12-month period beginning on the anniversary of the date of publication of a countervailing duty order under this subtitle or under section 1303 of this title, an antidumping duty order under this subtitle or a finding under the Antidumping Act, 1921, or a notice of the suspension of an investigation, the administering authority, after publication of notice of such review in the Federal Register, shall-

(A) review and determine the amount of any net subsidy,

(B) review, and determine (in accordance with paragraph (2)), the amount of any antidumping duty, and

(C) review the current status of, and compliance with, any agreement by reason of which an investigation was suspended, and review the amount of any net subsidy or margin of sales at

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less than fair value involved in the agreement,

and shall publish the results of such review, together with notice of any duty to be assessed, estimated duty to be deposited, or investigation to be resumed in the Federal Register.

(2) Determination of antidumping duties.-For the purpose of paragraph (1)(B), the administering authority shall determine-

(A) the foreign market value and United States price of each entry of merchandise subject to the antidumping duty order and included within that determination, and

(B) the amount, if any, by which the foreign market value of each such entry exceeds the United States price of the entry.

The administering authority, without revealing confidential information, shall publish notice...

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