City Lumber Co. v. United States

• Decision Date: 26 March 1970
• Docket Number: Reappraisement R62/3973.
• Citation: 311 F. Supp. 340
• Parties: CITY LUMBER CO. et al. v. UNITED STATES.
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

311 F. Supp. 340

CITY LUMBER CO. et al. v. UNITED STATES.

Reappraisement R62/3973.

United States Customs Court, First Division, Appellate Term.

March 26, 1970.

Frank G. Parker, New York City, for appellants.

William D. Ruckelshaus, Asst. Atty. Gen. (Frederick L. Ikenson, New York City, trial attorney), for appellee.

Before WATSON, MALETZ, and RE, Judges.

RE, Judge:

This is an application for review of the decision and judgment of Judge David J. Wilson in City Lumber Co. et al. v. United States, 61 Cust.Ct. 448, R.D. 11557, 290 F.Supp. 385 (1968), which upheld the imposition of dumping duties on three shipments of portland gray cement exported from Portugal. Appellants claim, as they did below, that the dumping duty appraisements are illegal, and they therefore seek a reversal of the judgment entered by Judge Wilson.

The special dumping duties, under section 202(a) of the Antidumping Act of 1921, as amended (19 U.S.C. § 161(a) (1964)), were imposed after the United States Tariff Commission issued its "Determination of Injury", TC Publication 37, AA1921-22, dated October 20, 1961, and the Treasury Department, on October 31, 1961, pursuant to section 201(a) of the Antidumping Act, made public its finding of dumping. (26 F.R. 10476)

The pertinent provisions of the Antidumping Act of 1921, as amended, may be set forth as follows:

"Section 201 (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. 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 findings 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." 19 U.S.C. § 160 (1964).

The record herein is entirely documentary and consists of "the complete official record in the investigation which the Tariff Commission conducted under section 201(a) of the Antidumping Act of 1921, as amended, on portland cement from Portugal No. AA1921-22."

Although several questions have been raised by the parties in their briefs, the basic question presented pertains to the validity of the dumping duties that have been assessed. In essence, the answer depends upon whether the dumping duties were based upon a valid determination of injury made by the Tariff Commission.

The decision of the Tariff Commission which contains its "Determination of Injury" is not unanimous, and contains the dissenting statement of two Commission members. The Commission's decision contains a "Majority Statement of Reasons" and the views of the two dissenting commissioners. The divergence of opinion that prevailed among the members of the Tariff Commission may be said to represent the difference of view of the parties on the fundamental question whether an industry in the United States "is being or is likely to be injured" by the importation of portland gray cement from Portugal.

On the basis of its investigation the Commission determined that "an industry in the United States is being injured by reason of the importation of portland gray cement from Portugal at less than fair value within the meaning of the Antidumping Act, 1921, as amended."

A helpful factual background is found in the following portion of the "Majority Statement of Reasons" of the Commission:

"In this investigation, involving the sale of portland gray cement from Portugal in the United States at less than fair value, we are confronted with one of a series of investigations respecting imports of such cement under similar circumstances from a succession of foreign supplying countries. Three U. S. importers are currently involved. One of them handled transaction in 1958 for an importer of cement from Sweden that had been sold at less than fair value. In that investigation the Commission made a determination of injury * * *:

* * * * * *

"All three of these importers of Portuguese cement were responsible in 1959 for entries of portland cement from Belgium that had also been sold in the United States at less than fair value, and one of them sold such cement under circumstances that caused the Commission again * * * to make a determination of injury."

The following paragraph, also from the "Majority Statement of Reasons", sets forth the Commission's answer to the contention of the importers that, although imported cement from Portugal was sold at less than fair value, an American industry was not being injured by such sales:

"Spokesmen for the importers contended that although the imported cement from Portugal was sold at prices below fair value such sales had had no depressive impact on the prices then prevailing in the respective domestic marketing areas and therefore had occasioned no injury to domestic producers. Sellers of Portuguese cement, it was argued, merely `met' the prices already prevailing in the respective areas; they said: `There is no evidence in this case (unlike the Swedish case) that Portuguese cement was specifically responsible for any price break.' This reasoning appears to us to be more ingenious than tenable. To embrace this conclusion, one must overlook the fact that the prices thus `met' in the region affected had already been depressed by earlier imports of dumped merchandise from countries other than Portugal. One must also disregard the hammering effect, and threat of additional sales thereafter below fair value of imports from new sources of supply—including those from Portugal—brought into play after avenues of dumping already utilized had been closed by enforcement of the antidumping statute. Depressed prices kept depressed by recourse to new forms of the old depressant constitutes, for domestic producers, merely a prolongation of the very injury from which it was hoped they had already gained relief."

The "Majority Statement of Reasons" contains the following pertaining to the Commission's statutory responsibility:

"When meeting its obligation under the Antidumping Act, the Commission gives consideration only to the criterion imposed upon it—viz, whether the imports identified by the Treasury Department as having been sold at less than fair value injure `an' industry, or prevent its establishment. In order to do this, the Commission must give cognizance to the spirit of the enactment and to the evil which it was intended to prevent."

The following paragraph from the statement of the two Commission members who dissented highlights the difference of opinion and approach to the question of injury to an industry in the United States:

"The question before the Commission is whether injury or the likelihood thereof to a domestic industry exists by reason of the importation of portland gray cement from Portugal which has been or is likely to be sold for export to the United States at less than fair value. This involves evaluation of facts obtained in the investigation relating to imports of such cement from this source only and their economic impact upon a domestic industry. Previous injury to domestic industry, or the possibility of future injury to domestic industry, by reason of imports of comparable cement from foreign countries other than Portugal is not determinative of the question with regard to imports from Portugal —indeed, such circumstances are not even probative in this case." Emphasis in original.

Appellants do not question the fact-finding power or discretion that has been lawfully vested in the Tariff...