Armstrong Bros. Tool Co. v. United States, Court No. 77-8-02005. C.D. 4838.

Citation483 F. Supp. 312
Decision Date28 January 1980
Docket NumberCourt No. 77-8-02005. C.D. 4838.
PartiesARMSTRONG BROS. TOOL CO.; Bergman Tool Manufacturing Co., Inc.; Duro Metal Products Company; Milwaukee Tool & Equipment Co., Inc.; H. K. Porter, Inc.; Proto Tools Division, Ingersoll Rand Company; Tool Group, Dresser Industries, Inc.; and the Wright Tool & Forge Company, Plaintiffs, v. UNITED STATES (Daido Corporation, Steelcraft Tools Division, Party-In-Interest), Defendant.
CourtUnited States Court of Customs and Patent Appeals

Frederick L. Ikenson, Washington, D. C., for plaintiffs.

Alice Daniel, Asst. Atty. Gen., Washington, D. C., David M. Cohen, Director, Commercial Litigation Branch, Joseph I. Liebman, Atty. in Charge, Field Office for Customs Litigation and Sidney N. Weiss, Trial Atty., New York City, for defendant.

Tanaka, Walders & Ritger, Washington, D. C. (H. William Tanaka, Lawrence R. Walders and Wesley K. Caine, Washington, D. C., of counsel), for the party-in-interest.

NEWMAN, Judge:

INTRODUCTION

Plaintiffs, American manufacturers and/or wholesalers of certain hand tools, contest the negative injury determination of the United States Tariff Commission ("Commission")1 in Wrenches, Pliers, Screwdrivers, and Metal-Cutting Snips and Shears From Japan, Investigation No. AA1921-141 (39 FR 38133 (1974), under the Antidumping Act of 1921, as amended (19 U.S.C. § 160, et seq. (1970)). This action has been brought under the provisions of 28 U.S.C. § 1582(b) (1976), 28 U.S.C. § 2632(a) (1976) and 19 U.S.C. § 1516(c) (1976). Daido Corporation, Steelcraft Tools Division, the party-in-interest, is the consignee of New York, New York consumption entry No. 77-471888, covering merchandise which falls within the description "wrenches, pliers, screwdrivers, and metal-cutting snips and shears from Japan".2

In this action, plaintiffs seek to overturn the negative injury determination reached by the Commission on October 21, 1974, viz., that "an industry in the United States is not being injured or is not likely to be injured, or is not prevented from being established, by reason of the importation of wrenches, pliers, screwdrivers and metal-cutting snips and shears from Japan that are being, or are likely to be, sold at less than fair value "LTFV" within the meaning of the Antidumping Act of 1921, as amended".3 Specifically, plaintiffs allege that the Commission's negative injury determination is erroneous as a matter of law, is arbitrary and capricious, and is not supported by substantial evidence. Plaintiffs seek an order setting aside the Commission's determination and directing the Secretary of the Treasury to publish a finding of dumping, with the result that dumping duties will be assessed, where appropriate, on entries of the subject hand tools from Japan.

This action is presently before me on plaintiffs' motion for summary judgment, and the cross-motions for summary judgment by defendant and the party-in-interest. The parties assert there is no genuine issue of fact. I have studied the massive administrative record and the excellent memoranda of law submitted by counsel; and for the reasons hereinafter expressed, I find that no justiciable issue of fact is presented in this case, and that defendant and the party-in-interest are entitled to summary judgment dismissing this action.

STATUTES INVOLVED

The statutory provisions relevant to this action are:

Section 201, Antidumping Act of 1921, as amended, 19 U.S.C. § 160 (1970):

Initiation of investigation; injury determination; findings; withholding appraisement; publication in Federal Register
(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 to 171 of this title called a "finding") of his determination and the determination of the said Commission. For the purposes of this subsection, the said Commission shall be deemed to have made an affirmative determination if the Commissioners of the said Commission voting are evenly divided as to whether its determination should be in the affirmative or in the negative. The Secretary's finding shall include a description of the class or kind of merchandise to which it applies in such detail as he shall deem necessary for the guidance of customs officers.
(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 that the exporter's sales 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.

Section 202(a), Antidumping Act of 1921, as amended, 19 U.S.C. § 161(a) (1970):

Amount of duty to be collected; determination of foreign market value of goods
(a) In the case of all imported merchandise, whether dutiable or free of duty, or a class or kind as to which the Secretary of the Treasury has made public a finding as provided for in section 160 of this title, entered, or withdrawn from warehouse, for consumption, not more than one hundred and twenty days before the question of dumping was raised by or presented to the Secretary or any person to whom authority under said section has been delegated, and as to which no appraisement has been made before such finding has been so made public, if the purchase price or the exporter's sales price is less than the foreign market value (or, in the absence of such value, than the constructed value) there shall be levied, collected, and paid, in addition to any other duties imposed thereon by law, a special dumping duty in an amount equal to such difference.

Section 516, Tariff Act of 1930, as amended, 19 U.S.C. § 1516 (1976):

Petitions by American manufacturers, producers, or wholesalers
(a) Classification, rate of duty, countervailing duty, and antidumping duty furnished upon request; petition; contents
The Secretary shall, upon written request by an American manufacturer, producer, or wholesaler, furnish the classification, the rate of duty, the additional duty described in section 1303 of this title (hereinafter in this section referred to as "countervailing duties"), if any, and the special duty described in section 161 of this title (hereinafter in this section referred to as "antidumping duties"), if any, imposed upon designated imported merchandise of a class or kind manufactured, produced, or sold at wholesale by him. If such manufacturer, producer, or wholesaler believes that the appraised value is too low, that the classification is not correct, that the proper rate of duty is not being assessed, or that countervailing duties or antidumping duties should be assessed, he may file a petition with the Secretary setting forth (1) a description of the merchandise, (2) the appraised value, the classification, or the rate or rates of duty that he believes proper and (3) the reasons for his belief including, in appropriate instances, the reasons for his belief that countervailing duties or antidumping duties should be assessed.
(b) Determination of petition; notification to petitioner; procedures for countervailing duties and antidumping duties
If, after receipt and consideration of a petition filed by an American manufacturer, producer, or wholesaler, the Secretary decides that the appraised value of the merchandise is too low, that the classification of the article or rate of duty assessed thereon is not correct, or that countervailing duties or antidumping duties should be assessed, he shall determine the proper appraised value or classification, rate of duty, or countervailing duties, or antidumping duties and shall notify the petitioner of his determination. Except for countervailing duty and antidumping duty purposes, all such merchandise entered for consumption or withdrawn from warehouse for consumption more than thirty days after the date such notice to the petitioner is published in the weekly Customs Bulletin shall be appraised or classified or assessed as to rate of duty in accordance with the Secretary's determination. For countervailing duty purposes, the procedures set forth in section 1303 of this title
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