Smith-Corona Group, Consumer Products Division v. US

• Decision Date: 30 December 1980
• Docket Number: Court No. 80-9-01343.
• Citation: 1 CIT 89,507 F. Supp. 1015
• Parties: SMITH-CORONA GROUP, CONSUMER PRODUCTS DIVISION, SCM Corporation, Plaintiff, v. UNITED STATES, Defendant, and Brother Industries, Ltd., and Brother International Corporation, and Silver Reed America, Inc., and Silver Seiko, Ltd., Parties-in-Interest.
• Court: U.S. Court of International Trade

507 F. Supp. 1015

1 CIT 89

SMITH-CORONA GROUP, CONSUMER PRODUCTS DIVISION, SCM Corporation, Plaintiff, v. UNITED STATES, Defendant and Brother Industries, Ltd., and Brother International Corporation, and Silver Reed America, Inc., and Silver Seiko, Ltd., Parties-in-Interest.

Court No. 80-9-01343.

United States Court of International Trade.

December 30, 1980.

Eugene L. Stewart, Washington, D. C., and Terence P. Stewart, for plaintiff.

Alice Daniel, Asst. Atty. Gen., Washington, D. C. (David M. Cohen, Director, Commercial Litigation Branch, and Velta A. Melnbrencis, Asst. Branch Director, New York City), for defendant.

Tanaka, Walders & Ritger, Washington, D. C. (H. William Tanaka, Donald L. E. Ritger and Wesley K. Caine, Washington, D. C., of counsel), for Brother Industries, Ltd., and Brother Intern. Corp., party-in-interest.

Arter, Hadden & Hemmendinger, Washington, D. C. (William Barringer and Christopher A. Dunn, Washington, D. C., of counsel), for Silver Reed America, Inc., and Silver Seiko, Ltd., party-in-interest.

MEMORANDUM AND ORDER ON PLAINTIFF'S MOTION FOR INJUNCTIVE AND INCIDENTAL RELIEF, AND PARTY-IN-INTEREST'S CROSS-MOTION TO DISMISS.

NEWMAN, Judge:

Plaintiff, a well known domestic manufacturer of portable electric typewriters ("PETS"), seeks judicial review of an "Early Determination of Antidumping Duties" by the International Trade Administration, United States Department of Commerce ("Commerce"), published in the Federal Register on August 13, 1980 (45 FR 53853-56). This determination, made pursuant to section 736(c) of the Tariff Act of 1930, as amended by the Trade Agreements Act of 1979 (P.L. 96-39, 93 Stat. 144) (19 U.S.C. § 1673e(c)), concerns certain PETs from Japan manufactured and imported by the parties-in-interest, Brother and Silver, and entered, or withdrawn from warehouse, for consumption on or after January 4, 1980 to May 7, 1980.¹ Plaintiff predicates subject matter jurisdiction on section 516A(a)(2)(A) and (B)(iii) of the Tariff Act of 1930, as amended by the Trade Agreements Act of 1979 (19 U.S.C. § 1516a(a)(2)(A) and (B)(iii)), raising an issue of novel impression. Under the recently enacted Customs Courts Act of 1980, P.L. 96-417, 94 Stat. 1727, effective November 1, 1980, the Court of International Trade has exclusive jurisdiction of any civil action commenced under section 516A of the Tariff Act of 1930. 28 U.S.C. § 1581(c).

Presently before the Court is plaintiff's application under section 516A(c)(2) of the Tariff Act of 1930, as amended by the Trade Agreements Act of 1979 (19 U.S.C. § 1516a(c)(2)), to enjoin the liquidation of the entries that were the subject of Commerce's early determination of antidumping duties pending the final hearing and disposition on the merits of the action. Additionally, plaintiff requests certain incidental relief, which will be discussed infra.

Brother has filed a cross-motion to dismiss for lack of subject matter jurisdiction, which cross-motion is opposed by plaintiff and the Government. Silver does not challenge the Court's jurisdiction (Trans. Oral Arg., 71).²

BACKGROUND

On May 9, 1980 Commerce published an Antidumping Duty Order covering imports of PETs from Japan. 45 FR 30618-19.³ The order provided that all entries of PETs imported from Japan subject to the "Withholding of Appraisement" notice published on January 4, 1980 were liable for possible assessment of antidumping duties. Further, the order directed Customs officers to require a deposit of estimated antidumping duties pending liquidation of entries in the following amounts: 36.53 percent ad valorem for Silver, and 48.70 percent ad valorem for Brother.

In lieu of the deposit of estimated antidumping duties, Commerce may permit the posting of a bond or other security for a period not to exceed ninety days from the date of publication of an antidumping duty order. This alternative is available where Commerce is satisfied, based on information presented to it by a manufacturer, producer, or exporter, that it will be able to determine within ninety days of publication date of the order the foreign market value and the United States price for all merchandise of such manufacturer, producer, or exporter that was entered, or withdrawn from warehouse, for consumption between the date of publication of the affirmative preliminary less than fair value ("LTFV") determination and the date of publication of the International Trade Commission's affirmative final determination. 19 U.S.C. § 1673e(c)(1).

The results of Commerce's determination of foreign market value and United States price serve as the basis for the assessment of antidumping duties on all entries of the merchandise covered by the determination, viz., entries that were made between publication date of the affirmative preliminary LTFV determination and publication date of the affirmative final injury determination. The results also serve as the basis for the deposit of estimated antidumping duties on future entries of merchandise from the particular foreign interested party. 19 U.S.C. § 1673e(c)(3).

In a notice published in the Federal Register on May 30, 1980 Commerce stated that Brother and Silver had requested that the deposit of estimated antidumping duties provided for in the Antidumping Duty Order be waived, and that an early determination of antidumping duties be made. Commerce advised that it was satisfied from the information presented by these two Japanese manufacturers that it would be able to timely make the requisite determination for all entries of merchandise of such manufacturers. 45 FR 36464. Commerce further stated (ibid.):

Accordingly, Customs officers are being directed to waive deposit of estimated duty and accept the posting of a bond or other security for all entries of portable electric typewriters manufactured by Brother Industries and Silver Seiko entered or withdrawn from warehouse, for consumption, from the date of publication of this notice.

The results of the early determination of antidumping duties respecting PETs from Japan manufactured by Brother Industries and Silver Seiko were published in the Federal Register on August 13, 1980. In its notice, Commerce explained the manner of computing the foreign market value and the United States price of all entries of the subject merchandise made from January 4, 1980, to May 7, 1980. The results of the comparisons of foreign market value and the United States price were summarized as follows (45 FR at 53855):

Margins were found on 74 percent of sales compared. The weighted average margin found with respect to sales by Silver Seiko was 14.91 percent and with respect to sales by Brother was 5.31 percent.

Accordingly, Commerce determined that the United States price of Brother and Silver PETs "are less than the foreign market values of such or similar typewriters," (ibid.) and then advised:

Customs officials will be directed to assess antidumping duties equal to the amount determined by the Department during this proceeding for all entries of portable electric typewriters manufactured by Brother and Silver Seiko entered or withdrawn from warehouse for consumption on or after January 4, 1980 to May 7, 1980. Ibid.

Additionally, it was announced that Customs officers were being directed to require the deposit of estimated antidumping duties on all PETs from Japan entered or withdrawn from warehouse for consumption. In that connection, Commerce announced: (45 FR at 53856):

The estimated antidumping duty deposit required for entries of the subject merchandise shall be 14.91 percent for Silver Seiko; 5.31 percent for Brother; * * *

Significantly too, the notice of August 13, 1980 stated Commerce's intent that, for purposes of the assessment of antidumping duties on the entries subject to the determination under section 736, the determination constitutes the completion of a review under section 751 of the Act which vests in all interested parties the rights flowing from the completion of such a review.

In this action, plaintiff challenges Commerce's allowance of certain adjustments to the foreign market values for Brother's and Silver's PETs, which adjustments were made for the purpose of comparing either the purchase price or the exporter's sales prices, as appropriate, with the foreign market values and thereby arriving at the proper antidumping duties to be assessed. The contested adjustments include, inter alia: (a) allowances for differences in Japanese inland freight; (b) allowances for differences in merchandise; and (c) allowances for differences in circumstances of sale, including expenses for packing, rebates, and advertising and the so-called exporter's sales price offset.

The purpose of plaintiff's application is to enjoin the liquidation of entries made on or after January 4, 1980 to May 7, 1980, so that such entries may be assessed with antidumping duties in the proper amounts, as determined by this Court. Moreover, plaintiff seeks an order requiring the deposit by Brother and Silver of estimated antidumping duties in accordance with the terms of the Antidumping Duty Order, respecting all entries, or withdrawals, of the subject merchandise made since January 4, 1980, pending liquidation in conformance with the final decision of this Court.

JURISDICTION

We first consider the threshold jurisdictional issue raised by Brother's cross-motion to dismiss — an issue of first impression.

The nub of Brother's challenge to the Court's jurisdiction is that this action seeks review of a determination made under section 736(c) of the Tariff Act, and that under section 516A judicial review is not provided with respect to a section 736(c) determination.⁴

In their opposition to Brother's cross-motion, plaintiff and the Government argue that while section 516A does not specifically list determinations made pursuant to section 736 of the Act among those reviewable, an examination of the statutory scheme in its entirety, pertinent...