Samsung Electronics Co., Ltd. v. U.S., AFL-CIO and I
| Citation | 873 F.2d 1427 |
| Decision Date | 10 May 1989 |
| Docket Number | Nos. 89-1023,AFL-CIO and I,89-1042,s. 89-1023 |
| Parties | SAMSUNG ELECTRONICS CO., LTD., Samsung Electronics of America, Inc. and Samsung International, Inc., and Goldstar Co., Ltd., Goldstar Electronics International, Inc. and Goldstar of America, Plaintiffs-Appellants, v. The UNITED STATES, U.S. Department of Commerce, Malcolm T. Baldrige, Secretary of Commerce, Bruce Smart, Under Secretary of Commerce, Paul Freedenberg, Assistant Secretary for Trade Administration, Gilbert B. Kaplan, Deputy Assistant Secretary for Import Administration, U.S. Customs Service and William Von Raab, Commissioner of Customs, Defendants-Appellees, Zenith Electronics Corporation, Defendant-Appellee, Independent Radionic Workers of America, International Brotherhood of Electrical Workers, International Union of Electronic, Electrical, Technical, Salaried and Machine Workers,ndustrial Union Dept., Defendants-Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals for the Federal Circuit |
Michael P. House, Dow, Lohnes & Albertson, Washington, D.C., argued for plaintiffs-appellants Goldstar Co., Ltd., et al. With him on the brief were William Silverman and R. Will Planert. Sukhan Kim, Thomas B. Wilner and Jeffrey M. Winton, Arnold & Porter, Washington, D.C., were on the brief for plaintiffs-appellants Samsung Electronics Co., Ltd., et al.
Elizabeth C. Seastrum, Dept. of Justice, Washington, D.C., argued for defendants-appellees. With her on the brief were John R. Bolton, Asst. Atty. Gen. and David M. Cohen, Director. Also on the brief were Michael A. Levitt, Acting Gen. Counsel, Stephen J. Powell, Chief Counsel and Mark J. Sadoff, Atty.-Advisor, U.S. Dept. of Commerce, of counsel. Larry Hampel, of Frederick L. Ikenson, P.C., Washington, D.C., argued for defendant-appellee Zenith Electronics Corp. With him on the brief were Frederick L. Ikenson and J. Eric Nissley. Paul D. Cullen and Laurence J. Lasoff, Collier, Skannon, Rill & Scott, Washington, D.C., were on the brief for defendants-appellees Independent Radionic Workers of America, et al.
Before RICH and MAYER, Circuit Judges, and NICHOLS, Senior Circuit Judge.
The judgment of the United States Court of International Trade, 692 F.Supp. 1382 (1988), upholding the determination of the Department of Commerce that separately imported color picture tubes and printed circuit boards, when subsequently assembled together, are within the scope of the antidumping duty order covering complete and incomplete color television receivers from Korea, 49 Fed.Reg. 18,336 (Dep't Comm.1984), is affirmed.
OPINIONAppellants Samsung and Goldstar raise an issue on appeal that was not expressly covered in the trial court's opinion. We address it here; on all other issues we affirm on the basis of the court's opinion, which we adopt.
Appellants assert that Commerce defined the scope of its antidumping duty order by reference to specific tariff classifications. Pointing out that the classifications under which color picture tubes and printed circuit boards are dutiable are not among those enumerated, appellants argue that they are not, therefore, properly within the scope of the order.
We have no reason to believe that Commerce did not intend to include items dutiable under the specified classifications within the scope of the order. Contrary to appellants' contention, however, we likewise have no reason to believe Commerce intended to limit the order to those items. Indeed, Commerce could not have been clearer that its intention was precisely the opposite: "This investigation is intended to cover all color television receivers regardless of tariff classifications." 49 Fed.Reg. at 18,337. In any event, it is eminently reasonable for Commerce to omit the separate classifications of tubes and boards: all parties agree that, when unassembled, these items do not constitute "color television receivers, complete or incomplete." Id.
All parties also agree that, "when assembled," ITC Final Determination at 3-4, tubes and boards do constitute incomplete receivers. Appellants would have us read "when assembled" as "when imported assembled," or at least "when covered on the same import entry," thus confining the temporal ambit of the word "when" to the moment of importation. But this construction artificially restricts the plain meaning. In classification cases a higher duty can be imposed where the importer's intention is to combine two separate components, after importation, to make an article that is classified at the higher duty. See Isaacs v. Jonas, 148 U.S. 648, 653, 13 S.Ct. 677, 679, 37 L.Ed. 596 (1892). The rule is that "[w]hen it is found that the article imported is in fact the article described in a particular paragraph of the tariff act," separate packaging of parts of the article "to avoid the specified duty on the article as a whole," "is simply a fraud on the revenue and cannot be permitted to succeed." United States v. Citroen, 223 U.S. 407, 415, 416, 32 S.Ct. 259, 260, 260, 56 L.Ed. 486 (1912). We see no reason for a different rule here.
AFFIRMED.
Respectfully, I dissent. The result-oriented court decision may be less favored now than a few years ago, but doubtless never will become extinct. It is a temptation to which all of us must occasionally yield unless someone obnoxiously takes on himself the role of little boy in the "emperor has no clothes" fable.
What is happening I shall briefly state, and then continue with the law. In 1983, the Department of Commerce, on complaint of various unions, and upon reviewing their petition, initiated an antidumping investigation, after which it found reasonable ground to believe that color television receivers from Korea were being sold in the United States at less than fair value. It specified what was being sold: "color television receivers complete or incomplete" and under what tariff paragraphs they were classified. There is administrative precedent on what an "incomplete" receiver is. Unfortunately, Commerce failed to specify certain important component parts, when imported separately for later incorporation in this country into complete receivers: "color picture tubes" (CPT) and "printed circuit boards" (PCB). They are "incomplete" receivers only if joined together; all agree as to that. There was then, and has been since, a substantial import trade in these important components. They are classified eo nomine under Tariff Schedules of the United States (TSUS) items 687.35 (CPT) and 685.1564 (PCB). Through somebody's blunder, these items were left out when the Commerce Department specified the TSUS classification numbers of the sets and components that were subjects of the investigation under 19 U.S.C. Sec. 1673a(c)(2). By the later-strained effort to correct the mistake, I gather it is very serious and undercuts the effect the proceeding has had, or was hoped to have, on color televisions imported complete, or incomplete, or in parts, from Korea, at less than fair value. The motivation for a result-oriented decision is great. It is not denied that 1986 would have been too late to amend the decision to add items initially left out and not included in the investigation. At any rate, after repeatedly making noises that seemed to exclude CPT's and PCB's from the investigation, if imported separately, the Commerce Department, in 1986, reversed its field and attempted to make it appear in a "Scope Clarification Order" that CPT's and PCB's have been intended and...
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