572 F.Supp. 883 (CIT. 1983), 82-7-01065, Diversified Products Corp. v. United States

Docket Nº:Court No. 82-7-01065.
Citation:572 F.Supp. 883
Party Name:DIVERSIFIED PRODUCTS CORPORATION, Plaintiff, v. UNITED STATES, Defendant, and Stewart-Warner Corporation, Intervenor.
Case Date:September 27, 1983
Court:Court of International Trade

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572 F.Supp. 883 (CIT. 1983)





Stewart-Warner Corporation, Intervenor.

Court No. 82-7-01065.

United States Court of International Trade.

Sept. 27, 1983

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Lamb & Lerch, Richard J. Kaplan, New York City, of counsel (Sidney H. Kuflik, New York City, on briefs), for plaintiff.

J. Paul McGrath, Asst. Atty. Gen., David M. Cohen, Director, Commercial Lit. Branch, Washington, D.C., Robert T. Seeley, Intern. Trade Admin., U.S. Dept. of Commerce, Washington, D.C., of counsel (Francis J. Sailer, Washington, D.C., on briefs), for defendant.

Eugene L. Stewart, Terence P. Stewart and Jeffrey S. Beckington, Washington, D.C., for intervenor.

Opinion and Order

MALETZ, Senior Judge:

Presented for the court's consideration is a challenge to the final results of an administrative review conducted by the Department of Commerce, International Trade Administration (ITA), pursuant to section 751 of the Tariff Act of 1930, as amended, 19 U.S.C. § 1675 (Supp. IV 1980). 1 That review involved a clarification of the scope of a dumping finding 2 issued by the government in 1972. See 47 Fed.Reg. 28,978 (1982). Although a series of attacks are mounted against the ITA's section 751 review, the pivotal question is whether certain merchandise--double-gear hub drive speedometers--sold by plaintiff during the section 751 review period is of the same class or kind as that named in the initial 1972 dumping finding.

Plaintiff Diversified Products Corp. (Diversified), an importer of double-gear hub drive speedometers, has moved for judgment on the administrative record pursuant to rule 56.1 of the rules of this court. The government has cross-moved for an affirmance and a partial remand in order that the ITA may redetermine the amount of estimated antidumping duties to be deposited on speedometers manufactured by one of the foreign firms with whom Diversified deals. For the reasons that follow, Diversified's motion is denied and the government's cross-motion is granted.



The history of this antidumping duty proceeding began in 1971 when a complaint was filed by intervenor Stewart-Warner Corp. with the Treasury Department requesting initiation of a dumping investigation of bicycle speedometers from Japan. A year after the complaint was filed Treasury determined that bicycle speedometers from Japan were being sold at less than fair

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value within the meaning of section 201(a) of the Antidumping Act, 1921, 19 U.S.C. § 160(a) (1970).

For its part, the U.S. Tariff Commission (now the U.S. International Trade Commission) concluded that an industry in the United States was being injured by reason of the importation of those bicycle speedometers. In the course of its injury investigation the Tariff Commission submitted questionnaires to importers and domestic producers. In the definitions section of those questionnaires the term "bicycle speedometers" was defined as

an instrument attached to a bicycle or exercise machine consisting of (1) a head which records miles per hour (MPH) and distance traveled (odometer), whether or not the instrument also indicates rotations per minute (RPM); (2) drive assembly; and (3) cable. [Emphasis added.]

The staff report to the Tariff Commission further reflects an inclusion of speedometers used on both bicycles and exercise machines in its consideration of the product subject to its investigation.

Following the Tariff Commission's injury determination, Treasury published its dumping finding. See 37 Fed.Reg. 24,826 (1972).

Shortly after enactment of the Trade Agreements Act of 1979--specifically section 751--the ITA embarked on its statutory task of reviewing all prior dumping findings of the Treasury Department, including the present one. In the preliminary results of its administrative review of the bicycle speedometer dumping finding, the ITA tentatively determined that double-gear hub drive speedometers were not within the scope of the 1972 dumping finding, reserving an ultimate decision on the scope question until publication of the final results of its section 751 review.

The ITA--after reviewing the Tariff Commission's record in the 1972 injury investigation, conducting its own hearing, and considering interested parties' post-hearing briefs--rendered its final results of administrative review which, as previously indicated, included the double-gear hub drive speedometers within the scope of the 1972 dumping finding. Diversified thereupon brought this action, pursuant to 19 U.S.C. § 1516a(a)(2)(A) and 28 U.S.C. § 1581(c), challenging the ITA's section 751 review. 3

Before turning to Diversified's principal contention that double-gear hub drive speedometers are beyond the scope of the 1972 dumping finding, the court first addresses three subsidiary claims advanced by it: (1) that the transitional rules of the Trade Agreements Act of 1979 prohibit the ITA from conducting a section 751 review in the circumstances presented here; (2) that the ITA is not empowered to clarify the scope of a dumping finding; and (3) assuming arguendo it is so empowered, that the ITA is bound by classification determinations of the Customs Service when clarifying the scope of a dumping finding.


The Transitional Rules

Pointing to section 1002(b)(3) of the transitional rules of the Trade Agreements Act of 1979, Pub.L. No. 96-39, 93 Stat. 144, 307, 4 Diversified argues that the ITA is

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powerless to review, much less clarify, the scope of a dumping finding if no assessment of antidumping duties was made prior to the effective date of that Act on the merchandise which is the subject of that finding. Diversified reaches this conclusion based on the contention that the word "review" appearing in section 1002(b)(3) refers to administrative, not judicial, review. The court disagrees.

The court is of the view that precisely the converse is true, that section 1002(b)(3) controls a party's right to judicial, not administrative, review. First of all, section 1002 is one of two sections contained in Title X of the 1979 Act, tellingly entitled "Judicial Review." Second, clear congressional authorization to conduct an administrative review of all pre-Trade Agreements Act dumping findings still in force on the Act's effective date is found in section 106(a) of that Act, 93 Stat. at 193, which states:


(a) Repeal of Old Law.--The Antidumping Act, 1921 (19 U.S.C. 160 et seq.) is hereby repealed but findings in effect on the effective date of this Act, or issued pursuant to court order in an action brought before that date, shall remain in effect, subject to review under section 751 of the Tariff Act of 1930.

In construing that section this court made clear that section 106(a) "makes old 'findings' subject to review under section 751 without limitation." Matsushita Electric Industrial Co., Ltd. v. United States, 2 CIT 263, 266, 529 F.Supp. 670, 673 (1981).


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