Smith Corona Corp. v. U.S.
| Decision Date | 26 September 1990 |
| Docket Number | Nos. 89-1387,s. 89-1387 |
| Citation | 915 F.2d 683 |
| Parties | SMITH CORONA CORPORATION, Plaintiff/Cross-Appellant, v. UNITED STATES, Defendant-Appellee, and Brother Industries, Ltd., Brother International Corp.; Nakajima All Co., Ltd.; Canon Inc. and Canon U.S.A., Inc.; Silver Seiko, Ltd., Silver Reed America, Inc.; Matsushita Electric Industrial Co., Ltd., Kyushu Matsushita Electric Industrial Co., Ltd., and Panasonic Company and Panasonic Industrial Company, divisions of Matsushita Electric Corporation of America, Defendants-Appellants. to 89-1389 and 89-1398 to 89-1400. |
| Court | U.S. Court of Appeals — Federal Circuit |
Terence P. Stewart, Stewart & Stewart, Washington, D.C., argued for plaintiff/cross-appellant. With him on the brief were Eugene L. Stewart, James R. Cannon, Jr., John M. Breen and Lane S. Hurewitz.
Velta Melnbrencis, Asst. Director, Commercial Litigation Branch, Dept. of Justice, Washington, D.C., argued for defendant-appellee. With her on the brief were Stuart E. Schiffer, Acting Asst. Atty. Gen. and David M. Cohen, Director. Also on the brief were Wendell L. Willkie, II, Gen. Counsel, Stephen J. Powell, Chief Counsel for Import Admin. and Pamela Green, Attorney-Advisor, Office of the Chief Counsel for Import Admin., U.S. Dept. of Commerce, Washington, D.C., of counsel.
R. Sarah Compton, P.C., McDermott, Will & Emery, Washington, D.C., argued for defendants-appellants, Nakajima All Co., Ltd. With her on the brief was David J. Levine. Patrick F. O'Leary, Tanaka Ritger & Middleton, Washington, D.C., argued for defendants-appellants, Brother Industries, Ltd. and Brother International Corp. With him on the brief were H. William Tanaka and Alice Mattice. Also on the brief were Harvey M. Applebaum, David R. Grace, Covington & Burling, Washington, D.C., counsel for Canon Inc. and Canon U.S.A., Inc., Stuart M. Rosen, Karin M. Burke and A. Paul Victor, Weil, Gotshal & Manges, New York City, counsel for Matsushita Electric Indus. Co., Ltd., Panasonic Co. and Panasonic Indus. Co., divisions of Matsushita Elec. Corp. of America, Christopher A. Dunn, Zygmunt Jablonski and Sarah C. Middleton, Willkie, Farr & Gallagher, Washington, D.C., counsel for Silver Seiko, Ltd. and Silver Reed (U.S.A.), Inc.
Before NEWMAN, Circuit Judge, COWEN and BALDWIN, Senior Circuit Judges.
On this appeal taken by producers and importers of portable electric typewriters (PETs) with text memory, we affirm the decision of the Court of International
Trade 1 that these PETs are within the scope of the May 9, 1980 antidumping duty order issued by the United States Department of Commerce. On the cross-appeal of Smith Corona Corporation, we reverse the decision of the Court of International Trade refusing to suspend liquidation of the typewriters held to be subject to this order.
On April 9, 1979 Smith Corona filed an antidumping petition with respect to PETs from Japan, in accordance with the Antidumping Act of 1921. The 1921 Act was superseded on January 1, 1980 by the Trade Agreements Act of 1979, Pub.L. No. 96-39 Sec. 101, 93 Stat. 151, which transferred to the Department of Commerce responsibility for administering the antidumping provisions. The Treasury Department's tentative determination that the Japanese PETs were being sold at less than fair value was confirmed by the International Trade Administration of the Department of Commerce (ITA). Portable Electric Typewriters from Japan, 45 Fed.Reg. 18,416 (Dep't Comm.1980). The International Trade Commission found that the domestic industry was materially injured, and by final order of May 9, 1980 antidumping duties were imposed on imported PETs. Portable Electric Typewriters from Japan, 45 Fed.Reg. 30,618 (Dep't Comm.1980) (final order). The final order was directed to "portable electric typewriters from Japan" which "are those provided for in item 676.0510" of the Tariff Schedules of the United States (TSUS). 45 Fed.Reg. at 30,619.
The ITA determined in 1983 that electronic portable typewriters are covered by the order. Portable Electric Typewriters from Japan, 48 Fed.Reg. 7,768 (Dep't Comm.1983).
On administrative review initiated on November 27, 1985 the ITA determined that PETs with text memory were excluded from the antidumping duty order. 2 Portable Electric Typewriters from Japan, 52 Fed.Reg. 1504 (Dep't Comm.1987). Smith Corona appealed that determination to the Court of International Trade. 28 U.S.C. Sec. 1581(c); 19 U.S.C. Sec. 1516a(a)(2)(B)(vi) ().
The Court of International Trade reversed, on the basis that substantial evidence did not support the ITA's ruling. Smith Corona Corp. v. United States, 678 F.Supp. 285 (Ct.Int'l Trade 1987). The ITA held, after a second remand from the court, that PETs with text memory were included in the antidumping order. Portable Electric Typewriters from Japan, No. 88-127 (Dep't Comm. Nov. 23, 1988). On appeal from this holding the Court of International Trade affirmed the ITA's ruling, but refused to require the suspension of liquidation pending appeal to this court. Smith Corona, 706 F.Supp. 908. This appeal and cross-appeal followed.
The appellant producers and importers assert that PETs with text memory are outside the scope of the final antidumping duty order of 1980.
The class or kind of merchandise encompassed by a final antidumping order is determined by the order, which is interpreted with the aid of the antidumping petition, the factual findings and legal conclusions adduced from the administrative investigations, and the preliminary order. Alsthom Atlantique v. United States, 4 Fed.Cir. (T) 71, 787 F.2d 565 (Fed.Cir.1986); see generally Royal Business Machs. Inc. v. United States, 507 F.Supp. 1007 (Ct.Int'l Trade 1980), aff'd, 669 F.2d 692 (CCPA 1982). Although the scope of a final order may be clarified, it can not be changed in a way contrary to its terms. See Alsthom Atlantique, 787 F.2d at 571, 4 Fed.Cir. (T) at 78.
The antidumping petition filed by Smith Corona in 1979, in accordance with 19 C.F.R. Sec. 153.27(a)(2) (1979), defined the goods as "all portable electric typewriters, whether utilizing typebars or single elements, and whether fully electric with powered carriage return, and whether with conventional ribbons or with cartridge or cassette ribbon." The tariff classification was identified as TSUS item 676.0510. Schedule 6, Part 4, Subpart G, of the TSUS contains the following classification:
ITEM STAT. SUFFIX ARTICLES
Typewriters not incorporating a calculating mechanism
676.05 Non-automatic with hand-operated keyboard
Portable
10 Electric ...................................
30 Non-electric ...............................
Other:
40 Electric ...................................
60 Non-electric ...............................
At the time of the investigation all imported portable electric typewriters were encompassed by TSUS 676.0510. 3 Although typewriters with text memory were found to have existed at the time of the antidumping investigation, they were of large size and not portable, and therefore not included in the investigation. Portable Electric Typewriters from Japan, No. 87-145, slip op. at 3 (Dep't Comm. March 18, 1988). With advances in technology, text memory capability became incorporated in portable electronic typewriters imported after the date of the order. It is the status of these typewriters that is at issue.
In determining the status of products that have been modified since the issuance of an order, the initial inquiry is whether the products were specifically included within the order. See Alsthom Atlantique, 4 Fed.Cir. (T) at 78, 787 F.2d at 571; Royal Business Machs., supra. If the final order did not clearly include or exclude the modified products, then guidance as to the intended scope of the order may be sought by application of the criteria set forth in Diversified Products v. United States, 572 F.Supp. 883 (Ct.Int'l Trade 1983). The Court of International Trade, reviewing the order in light of the entirety of the administrative investigations and determinations, held that the text memory PET's were included within the scope of the final order.
The Court of International Trade considered the argument of the importers/producers that because text memory PETs were classified, upon their importation after the final order was issued, under a tariff classification other than 676.0510, these typewriters are expressly excluded from the final order. A similar question had arisen, in connection with the same final order, applied to a Japanese electronic typewriter model known as the Royal "Administrator". In that case, after issuance of the final order the Customs Service reclassified the "Administrator" from TSUS 676.0510 (Portable: Electric) to TSUS 676.0540 (Other: Electric), and the manufacturer petitioned to exclude the "Administrator" from the final order based on the reference in the order to TSUS 676.0510. The Court of International Trade rejected this argument, stating that classification under the antidumping law need not match the Customs classification, and that factors in addition to the TSUS classification are to be considered. Royal Business Machs., 507 F.Supp. at 1014. The separate classification of large size, non-portable typewriters with text memory, at the time...
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