City Lumber Co. v. United States

• Decision Date: 09 July 1968
• Docket Number: R.D. 11557
• Citation: 61 Cust. Ct. 448
• Parties: CITY LUMBER CO. ET AL. <I>v.</I> UNITED STATES.
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

61 Cust. Ct. 448

CITY LUMBER CO. ET AL.v.

UNITED STATES.

R.D. 11557

United States Customs Court.

Decided July 9, 1968.

Barnes, Richardson & Colburn (Norman C. Schwartz and Rufus E. Jarman, Jr., of counsel); Frank G. Parker, associate counsel; for the plaintiffs.

Edwin L. Weisl, Jr., Assistant Attorney General (Charles P. Deem and Sheila N. Ziff, trial attorneys), for the defendant.

Covington & Burling (Donald Hiss of counsel) as amicus curiae.

WILSON, Judge:

The three appeals enumerated in the schedule attached hereto and made a part hereof were consolidated for purposes of trial. The imported merchandise consists of gray portland cement invoiced as "LIZ" brand complying with specifications ASTM C 150/56, Type 1. The cement in the first two appeals was exported from Portugal on May 7, 1960, and June 9, 1960, respectively, and was entered at Bridgeport, Conn., for the account of City Lumber Co. The cement in the third appeal was exported from Portugal on August 1, 1960, and was entered at Philadelphia, Pa., for the account of Port Everglades Steel Corp.

The appraisers at both ports of entry appraised the cement at values under section 402 of the Tariff Act of 1930, as amended by the Customs Simplication Act of 1956, 91 Treas. Dec. 295, T.D. 54165. The appraisers also reported the unit foreign market values on the respective dates of purchase, as well as the unit purchase prices under the Antidumping Act of 1921 (hereinafter ADA), sections 205 and 203, as amended (19 U.S.C. § 160(a) (c)), as amended by the Customs Simplification Act of 1954, 89 Treas. Dec. 242, T.D. 53599, respectively, which resulted in special dumping duties under section 202(a) of the Antidumping Act. This was done after the United States Tariff Commission (hereinafter referred to as the Commission) issued its "Determination of Injury," TC Publication 37, AA 1921-22 dated October 20, 1961, more particularly referred to infra. The Treasury Department on October 31, 1961, pursuant to section 201(a) made public its finding of dumping (26 F.R. 10476).

STATUTES AND REGULATIONS INVOLVED

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

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 160-173 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 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.

* * * * * * *

(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. May 27, 1921, c. 14, § 201, 42 Stat. 110; Sept. 1, 1954, c. 1213, Title III, § 301, 68 Stat. 1138; Aug. 14, 1958, Pub. L. 85-630, §§ 1, 4(b), 72 Stat. 583, 585.

19 CFR (revised as of January 1, 1961), Part 201—United States Tariff Commission, Rules of General Application:

§ 201.7 [page 569] Methods employed in obtaining information.

(a) Questionnaires, correspondence, and field work. In obtaining information necessary to carry out its functions and duties, the Commission may employ any means authorized by law. It is the practice of the Commission to obtain much of its information through the use of questionnaires and correspondence, and through field work by duly authorized members of the Commission's staff who interview such manufacturers, farmers, distributors, importers, representatives of labor, consumers, and others, as may be necessary to obtain the required information. Official requests for information required by the Commission are made either in writing or orally, and responses are received either in writing or orally, depending upon the nature of the information requested and the use to be made of it.

* * * * * * *

(c) Formal hearings. In formal proceedings, the Commission obtains information from the evidence presented at hearings as well as through independent investigation by the Commission and its staff of experts. [14 F.R. 7289, Dec. 6, 1949, as amended at 16 F.R. 10625, Oct. 18, 1951]

Part 208—Investigations of Dumping Injury to Domestic Industry:

§ 208.1 [page 582] Applicability of rules regarding investigations under section 201(a) of the Antidumping Act, 1921, as amended.

The rules under this part are specifically applicable to investigations for the purposes of section 201(a) of the Antidumping Act, 1921, as amended, and apply in addition to the pertinent rules of general application set forth in Part 201 of this chapter.

The plaintiffs contend that the majority of the Commission acted upon an erroneous theory of law and in clear violation of statutory power to "lay and collect duties" delegated to it by Congress under Article 1, Section 8, of the Constitution; that the only question is whether the finding of "injury" by the majority was an exercise of duly conferred authority, or was ultra vires and, therefore, null and void, because based upon an incorrect interpretation of law; that the Commission exceeded its statutory authority by predicating its finding of "injury" almost entirely upon importations of cement from countries other than Portugal (brief, page 2). Plaintiffs' proposed finding of fact No. 6 (brief, page 20) states that "The sole question herein is the validity of the investigation and determination of the Tariff Commission." Plaintiffs' counsel stated at R. 2, 3:

* * * we are not claiming any other or different foreign market value[s] or purchase price[s] than as found by the Appraiser. Our contention is, rather, that the investigation conducted by the Tariff Commission was illegal, since importations from other countries than Portgual were considered in the Commission's report.

Accordingly, the values found by the appraisers under the tariff act and the values and prices reported under the Antidumping Act are conceded correct as to the amounts thereof.

The defendant contends that the Tariff Commission and the Assistant Secretary of the Treasury acted within the authority delegated by the Congress in finding that an industry in the United States was being injured by the sale of portland gray cement imported from Portugal (brief, page 15, "PROPOSED CONCLUSIONS OF LAW" number 2).

The only evidence in this case is plaintiffs' collective exhibit 1 which consists of a record certified by Donn N. Bent, Secretary of the United States Tariff Commission, dated April 20, 1966. It is "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." That official record contains many items including a letter dated July 17, 1961, from the Assistant Secretary of the Treasury to the Commission; notices of the Commission of the investigation issued July 24, 1961, and of the hearing issued August 1, 1961; tentative calendar for the hearing; transcript of the oral record made at the hearing held September 14, 1961, before the Commission, as well as other documents including a statement submitted on behalf of the City Lumber Co. and another on behalf of the Portuguese exporter of the involved cement; a brief submitted for Port Everglades Steel Corp. by its counsel; a brief submitted for 12 representative domestic cement producers by their counsel; brief of Foreston Coal Co., Inc., of Massachusetts, submitted by its counsel; and a "Determination of Injury" issued by the Commission, dated October 20, 1961, which is "TC Publication 37" of three Commissioners and the "Views of Commissioners Talbot and Overton." As deemed necessary herein, such of the foregoing items will be referred to infra.

Gleaned from this evidence is the fact that the Treasury letter to the Commission of July 17, 1961, was received on July 20, 1961, which advised under section 201(a) (19 U.S.C. § 160(a)) of the ADA, as amended, "that portland gray cement from Portugal is being, or is likely to be sold in the United States at less than fair value as that term is used in the Antidumping Act."

On July 24, 1961, the Commission issued a "Notice of Investigation" (26 F.R. 6792) which notice states that it received advice from the Treasury Department that "PORTLAND GRAY CEMENT from PORTUGAL is being, or is likely to be, sold in the United States at less than fair value," to "determine 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."...