FW Myers & Co., Inc. v. United States

• Decision Date: 28 May 1974
• Docket Number: C.D. 4544,R67/10201-3795,Court No. R67/16567-3850
• Citation: 72 Cust. Ct. 219,376 F. Supp. 860
• Parties: F. W. MYERS & CO., INC., and A. H. Bottorff Co. v. UNITED STATES.
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

376 F. Supp. 860

72 Cust. Ct. 219

F. W. MYERS & CO., INC., and A. H. Bottorff Co. v. UNITED STATES.

C.D. 4544; Court Nos. R67/16567-3850, etc., R67/10201-3795, etc.

United States Customs Court.

May 28, 1974.

COPYRIGHT MATERIAL OMITTED

Barnes, Richardson & Colburn, New York City, Joseph Schwartz and Irving Levine, New York City, of counsel, for plaintiffs.

Carla A. Hills, Asst. Atty. Gen., Velta A. Melnbrencis, New York City, trial atty., for defendant.

James R. Sharp, Washington, D. C., amicus curiae.

MALETZ, Judge:

These actions, which were tried jointly, involve the assessment under the Antidumping Act of 1921, as amended (19 U.S.C. § 160 et seq.) of special dumping duties against various styles of hand-operated steel jacks that were manufactured and sold by J. C. Hallman Manufacturing Co., Limited of Kitchener, Ontario, Canada (Hallman) and purchased by A. H. Bottorff Co., Inc. of St. Joseph, Missouri (Bottorff).¹ The jacks were exported from Canada during the period from December 27, 1964 through June 8, 1966 and entered at the port of Detroit.

I

Helpful in understanding the issues in this case is a brief summary of the Antidumping Act and its administration.² In essence, that act provides that if a foreign exporter sells merchandise to the United States at a price less than its "fair value," i. e., the price charged by the exporter in his home market³ — with resultant injury to a U. S. industry — a special dumping duty will be assessed upon the importation of the merchandise. If the exporter and importer are not related, this duty is measured by the difference between the higher "foreign market value" and the lower price charged the U. S. importer.

The question as to whether merchandise is being sold at less than fair value is determined by the Secretary of the Treasury. If the Secretary makes an affirmative finding in this regard, the question as to whether there is injury is determined by the Tariff Commission. If the Commission makes a determination of injury, the Secretary makes and publishes a finding of dumping. Once the finding of dumping has been published, customs officers proceed to assess and collect dumping duties which (as noted before) are equal, if the exporter and importer are not related, to the amount by which the American importer's purchase price is less than the foreign market value. In assessing such duties, in the event sales in the home market are made under circumstances which differ from those incurred in sales to the United States, adjustments must be made by the customs officers for differences in quantities and other circumstances of sale in order to place the sales on a basis as nearly equivalent as practicable.

With respect to administration of the act, antidumping investigations are usually triggered by the complaint of an affected domestic industry filed with the Commissioner of Customs. Upon receipt of such a complaint with supporting information, the Commissioner conducts a summary investigation to determine whether grounds exist for further consideration of the case. If he concludes that such grounds do exist, he publishes an "Antidumping Proceeding Notice" briefly describing what is at issue and conducts a preliminary investigation based on the examination of invoices and other information immediately available to him. Should the Commissioner determine from this preliminary investigation that reasonable grounds exist to believe or suspect that sales at less than fair value are taking place, he orders the withholding of appraisement of shipments of the merchandise being imported into the United States and publishes a "Withholding of Appraisement Notice." This action insures that in the event a dumping finding is made, the government will be able to collect any antidumping duties which may be due on these shipments.

After publishing the "Withholding of Appraisement Notice," the Commissioner conducts a full-scale investigation upon completion of which he makes a report of his findings to the Secretary of the Treasury. When the Secretary reaches his conclusion in the matter, he publishes a "Notice of Tentative Determination" which includes a statement of reasons for his action. Interested parties are thereupon given an opportunity to submit argument or appear in person in support of or in opposition to the tentative determination.

After examination of the arguments and evidence submitted in response to the tentative determination, the Secretary publishes a final determination. If the final determination is that sales at less than fair value are taking place, the case is referred to the Tariff Commission for a determination as to whether a U. S. industry has been injured. In turn, if the Commission, after such investigation as it deems necessary, makes a determination of injury, it so notifies the Secretary of the Treasury. The Secretary thereupon publishes a finding of dumping, and customs officers then assess antidumping duties on any shipment where, if the exporter and importer are not related, the U. S. purchase price is less than the foreign market value. As previously mentioned, in assessing such duties, if sales in the home market are made under circumstances which differ from those incurred in sales to the United States, adjustments in the duty amount are required to be made for differences in quantities and circumstances of sale.

II

Pertinent to the proceedings which led to the imposition of the dumping duties here in issue is section 201 of the Antidumping Act of 1921, as amended (19 U. S.C. § 160),⁴ which provides in relevant part:

(a) Whenever the Secretary of the Treasury (hereinafter called the "Secretary") determines that a class or kind of foreign merchandise is being, or is likely to be, sold in the United States or elsewhere at less than its fair value, he shall so advise the United States Tariff Commission, and the said Commission shall determine within three months thereafter whether an industry in the United States is being or is likely to be injured, or is prevented from being established, by reason of the importation of such merchandise into the United States. The said Commission, after such investigation as it deems necessary, shall notify the Secretary of its determination, and, if that determination is in the affirmative, the Secretary shall make public a notice (hereinafter in sections 160-173 of this title called a "finding") of his determination and the determination of the said Commission. * * *

(b) Whenever, in the case of any imported merchandise of a class or kind as to which the Secretary has not so made public a finding, the Secretary has reason to believe or suspect, from the invoice or other papers or from information presented to him or to any person to whom authority under this section has been delegated, that the purchase price is less * * * or likely to be less, than the foreign market value (or, in the absence of such value, than the constructed value), he shall forthwith publish notice of that fact in the Federal Register and shall authorize, under such regulations as he may prescribe, the withholding of appraisement reports as to such merchandise entered, or withdrawn from warehouse, for consumption, not more than one hundred and twenty days before the question of dumping has been raised by or presented to him or any person to whom authority under this section has been delegated, until the further order of the Secretary, or until the Secretary has made public a finding as provided for in subdivision (a) in regard to such merchandise.

(c) The Secretary, upon determining whether foreign merchandise is being, or is likely to be, sold in the United States at less than its fair value, and the United States Tariff Commission, upon making its determination under subsection (a) of this section, shall each publish such determination in the Federal Register, with a statement of the reasons therefor, whether such determination is in the affirmative or in the negative.

Pursuant to these statutory provisions, the following administrative actions — which culminated in the present controversy — took place:

On April 23, 1965, the Acting Commissioner of Customs issued an "Antidumping Proceeding Notice" — which was published in the Federal Register on April 30, 1965 (30 F.R. 6123) — stating that the Commissioner of Customs had received information that steel jacks imported from Canada, manufactured by Hallman, were being, or likely to be, sold at less than fair value, and that the Bureau of Customs was instituting an inquiry into the matter.

On May 3, 1965, the Acting Commissioner of Customs issued a "Withholding of Appraisement Notice" which was published May 8, 1965 (30 F.R. 6445). The notice stated that there were reasonable grounds to believe or suspect that the "purchase price" or "exporter's sales price" was less or likely to be less than the "foreign market value" of the steel jacks imported from Canada manufactured by Hallman and that the appropriate basis of comparison with "foreign market value" would be published in a supplemental notice in the Federal Register as soon as possible.⁵ The notice also indicated that customs officers were being directed to withhold appraisement of such steel jacks imported from Canada. In accordance with this directive, the district director at Detroit withheld appraisement of the steel jacks here in issue.

On September 2, 1965, a supplementary "Withholding of Appraisement Notice" was issued by the Commissioner of Customs and published on September 9, 1965 (30 F.R. 11532). This notice referred to the notice published on May 8, 1965 — when the then available information was insufficient to determine the appropriate basis of comparison with foreign market value — and stated that the information "now available" disclosed that "purchase price" was the appropriate basis of comparison for fair value purposes.

On December 29, 1965, the Acting Assistant Secretary of the Treasury made a...