Armstrong Bros. Tool Co. v. United States

• Citation: 84 Cust. Ct. 102,489 F. Supp. 269
• Decision Date: 27 March 1980
• Docket Number: C.D. 4848,Court No. 77-8-02004.
• Parties: ARMSTRONG BROS. TOOL CO.; Bergman Tool Manufacturing Co., Inc.; Duro Metal Products Company; Milwaukee Tool & Equipment Co., Inc.; Proto Tools Division, Ingersoll Rand Company; Warren Tool Corporation; Wilton Tool Division of Wilton Corporation; and Woodings-Verona Tool Works, Plaintiffs, v. UNITED STATES (Great Neck Saw Manufacturing, Incorporated, Party-In-Interest), Defendant.
• Court: United States Court of Customs and Patent Appeals

489 F. Supp. 269

84 Cust. Ct. 102

ARMSTRONG BROS. TOOL CO.; Bergman Tool Manufacturing Co., Inc.; Duro Metal Products Company; Milwaukee Tool & Equipment Co., Inc.; Proto Tools Division, Ingersoll Rand Company; Warren Tool Corporation; Wilton Tool Division of Wilton Corporation; and Woodings-Verona Tool Works, Plaintiffs, v. UNITED STATES (Great Neck Saw Manufacturing, Incorporated, Party-In-Interest), Defendant.

C.D. 4848; Court No. 77-8-02004.

United States Customs Court.

March 27, 1980.

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, New York City, Attorney in Charge, for Customs Litigation, and Sidney N. Weiss, Trial Attorney, New York City, for defendant.

NEWMAN, Judge:

INTRODUCTION

This is an American manufacturers' action brought pursuant to 28 U.S.C. § 1582(b) (1976), 28 U.S.C. § 2632(a) (1976) and 19 U.S.C. § 1516(c) (1976), involving the Antidumping Act of 1921, as amended (19 U.S.C. §§ 160, et seq. (1970)) (Antidumping Act).

Plaintiffs, domestic manufacturers and/or wholesalers of certain nonpowered hand tools (viz., chisels, punches, hammers and sledges, vises, c-clamps and battery service tools), contest the negative injury determination of the United States International Trade Commission ("Commission") in Investigation No. AA1921-149 (40 FR 57517 (1975) and the action of the Department of the Treasury ("Treasury") in amending its determination of sales at less than fair value ("LTFV") (40 FR 49111 (1975)). Great Neck Saw Manufacturing, Incorporated, made a party in interest pursuant to 19 U.S.C. § 1516(c) (1976),¹ is the consignee in New York seaport entry No. 77-471887 of July 20, 1977, and the importer of hand tools falling within the class or kind of merchandise involved in this action imported without assessment of antidumping duties.

This action is presently before me on plaintiffs' motion and the Government's cross-motion for summary judgment. After careful consideration of the voluminous administrative record and the comprehensive memoranda of law submitted by counsel, I have concluded that no genuine triable issue of fact is presented in this case, and that defendant is entitled to summary judgment dismissing this action.

BACKGROUND

The highlights of the administrative history of this action are undisputed, and may be briefly summarized:

1. On September 5, 1974 an Antidumping Proceeding Notice issued by Treasury was published in the Federal Register (39 FR 32159), advising that an investigation was being instituted to determine whether certain nonpowered hand tools from Japan, including chisels, punches, hammers and sledges, vises, c-clamps, and battery service tools, were being or were likely to be sold at LTFV.

2. On June 5, 1975 a Withholding of Appraisement Notice was issued by Treasury and published in the Federal Register (40 FR 24218). Included among the hand tools covered were chisels, punches, hammers and sledges (with or without handles), vises, c-clamps, and battery service tools, other than specific hand and battery service tools, from certain Japanese sources. In the notice, battery service tools were stated to include "battery terminal lifters, battery post and terminal cleaning brushes, battery terminal spreaders, angle-nose pliers, booster cables and battery service kits (terminal puller, cleaning brush and two terminals)".

3. On September 5, 1975 a Determination of Sales at LTFV covering "Certain Non-Powered Hand Tools from Japan" was issued by Treasury and published in the Federal Register (40 FR 41155). Included among the hand tools covered were chisels, punches, hammers and sledges (with or without handles), vises, c-clamps, and battery service tools, other than specific hand and battery service tools, from certain Japanese sources. The term "battery service tools", was defined in the same manner as it was in the Withholding of Appraisement Notice.

4. Thereafter, on September 10, 1975 the Commission instituted Investigation No. AA1921-149 for the purpose of determining whether an industry in the United States was being or was likely to be injured, or prevented from being established, by reason of sales at LTFV. On September 15, 1975 the Commission published in the Federal Register its notice of investigation and public hearing (to be held on October 2, 1975) and included in such notice the same definition of battery service tools used by Treasury in its Withholding of Appraisement Notice and its Determination of Sales at LTFV (40 FR 42607). A notice rescheduling the hearing from October 2 to October 22, 1975 was published by the Commission in the Federal Register on September 24, 1975 (40 FR 43956). The hearing was held on October 22 and 23, 1975.

5. On October 21, 1975 Treasury published in the Federal Register an Amendment of Determination of Sales at LTFV by eliminating from the scope of its original determination all battery service tools other than battery terminal lifters (40 FR 49111).

6. The Commission, on October 23, 1975 (second day of the hearing), amended the scope of its investigation to make it correspond with the new advice received from Treasury, and on October 29, 1975 published in the Federal Register notice of the amendment of the investigation (40 FR 50320).

7. The Commission unanimously reached a negative decision (viz., it determined that an industry in the United States is not being or is not likely to be injured, or is not prevented from being established, by reason of the sales at LTFV). The decision together with a Statement of Reasons was published in the Federal Register on December 10, 1975 (40 FR 57517). In arriving at its determination, the Commission gave due consideration to written submissions from interested parties, evidence adduced at the hearing, and all factual information obtained by the Commission's staff from questionnaires, personal interviews, and other sources.

No question has been raised concerning plaintiffs' compliance with the administrative prerequisites to the initiation of a civil action prescribed by 19 U.S.C. § 1516(a) and (c).

Pursuant to plaintiffs' motion and over defendant's objection, I entered an order that the Secretary of the Commission prepare and transmit to the Clerk of the Court, on or before September 25, 1978, the following: (1) a certified copy of the transcript of proceedings and exhibits introduced before the Commission in Investigation No. AA1921-149; (2) certified copies of all written submissions, questionnaires, reports, and all other documents relating to Investigation No. AA1921-149; and (3) all other things in the files of the Commission relating to the investigation.²

Pursuant to the foregoing order, as modified, the Secretary of the Commission transmitted what are represented to be all of the documents and things enumerated and described above that were locatable,³ with the exception of the one document which was claimed by the Commission Chairman to be privileged.⁴

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,

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