The Hoenig Plywood Corporation v. United States
| Decision Date | 24 July 1963 |
| Docket Number | Reap. Dec. 10569. |
| Citation | 51 Cust. Ct. 336 |
| Court | U.S. Court of Customs and Patent Appeals (CCPA) |
| Parties | THE HOENIG PLYWOOD CORPORATION <I>v.</I> UNITED STATES. |
Sharp & Bogan (James R. Sharp, Myron Solter, and Alan D. Hutchison of counsel) for the plaintiff.
John W. Douglas, Assistant Attorney General (Daniel I. Auster and Richard E. FitzGibbon, trial attorneys), for the defendant.
Robert C. Keck (Valentine A. Weber, Jr., and MacLeish, Spray, Price & Underwood of counsel) as amicus curiae.
In this appeal for reappraisement, plaintiff is seeking to upset a finding of dumping made by the Assistant Secretary of the Treasury, pursuant to the provisions of the Antidumping Act of 19211 (19 U.S.C., § 160 (May 27, 1921, ch. 14, § 201, 42 Stat. 11; June 17, 1930, ch. 497, title IV, § 651(d) (5), 46 Stat. 763)), and promulgated on August 26, 1954, 89 Treas. Dec. 197, T.D. 53567, in respect to hardboard imported from Sweden. Said finding reads as follows:
Antidumping — Hardboard from Sweden
To Collectors of Customs and Others Concerned:
After due investigation, in accordance with the provisions of section 201 of the Antidumping Act, 1921 (19 U.S.C. 160), I find that the industry manufacturing hardboard in the United States is likely to be injured by reason of the importation into the United States of hardboard from Sweden, and that hardboard from Sweden is being sold and is likely to be sold in the United States at less than its fair value. (Sec. 201, 42 Stat. 11; 19 U.S.C. 160.)
(643.3)
H. CHAPMAN ROSE
Acting Secretary of the Treasury
[Filed with the Division of the Federal Register September 2, 1954, 8:45 a.m.]
The objection raised is that the finding of dumping lacks validity by reason of the failure of the Secretary of the Treasury to comply with the provisions of the Administrative Procedure Act of 1946 (5 U.S.C., § 1001 and ff), hereinafter referred to as A.P.A., which, insofar as here applicable, recite the following:
§ 1001. Definitions [A.P.A., § 2].
* * * * * * *
(a) Agency.
"Agency" means each authority (whether or not within or subject to review by another agency) of the Government of the United States other than Congress, the courts, or the governments of the possessions, Territories, or the District of Columbia. * * *
* * * * * * *
(c) Rule and rule making.
"Rule" means the whole or any part of any agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or to describe the organization, procedure, or practice requirements of any agency and includes the approval or prescription for the future of rates, wages, corporate or financial structures or reorganizations thereof, prices, facilities, appliances, services or allowances therefor or of valuations, costs, or accounting, or practices bearing upon any of the foregoing. "Rule making" means agency process for the formulation, amendment, or repeal of a rule.
(d) Order and adjudication.
"Order" means the whole or any part of the final disposition (whether affirmative, negative, injunctive, or declaratory in form) of any agency in any matter other than rule making but including licensing. "Adjudication" means agency process for the formulation of an order.
* * * * * * *
§ 1003. Rule making [A.P.A., § 4].
Except to the extent that there is involved (1) any military, naval, or foreign affairs function of the United States or (2) any matter relating to agency management or personnel or to public property, loans, grants, benefits, or contracts —
General notice of proposed rule making shall be published in the Federal Register () and shall include (1) a statement of the time, place, and nature of public rule making proceedings; (2) reference to the authority under which the rule is proposed; and (3) either the terms or substance of the proposed rule or a description of the subjects and issues involved. Except where notice or hearing is required by statute, this subsection shall not apply to interpretative rules, general statements of policy, rules of agency organizations, procedure, or practice, or in any situation in which the agency for good cause finds (and incorporates the finding and a brief statement of the reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.
After notice required by this section, the agency shall afford interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments with or without opportunity to present the same orally in any manner; and, after consideration of all relevant matter presented, the agency shall incorporate in any rules adopted a concise general statement of their basis and purpose. Where rules are required by statute to be made on the record after opportunity for an agency hearing, the requirements of sections 1006 and 1007 of this title shall apply in place of the provisions of this subsection.
* * * * * * *
§ 1004. Adjudications [A.P.A., § 5].
In every case of adjudication required by statute to be determined on the record after opportunity for an agency hearing, * * * —
(a) Notice of hearing and issues.
Persons entitled to notice of an agency hearing shall be timely informed of (1) the time, place, and nature thereof; (2) the legal authority and jurisdiction under which the hearing is to be held; and (3) the matters of fact and law asserted. In instances in which private persons are the moving parties, other parties to the proceeding shall give prompt notice of issues controverted in fact or law; and in other instances agencies may by rule require responsive pleading. In fixing the times and places for hearings, due regard shall be had for the convenience and necessity of the parties or their representatives.
(b) Procedure.
The agency shall afford all interested parties opportunity for (1) the submission and consideration of facts, arguments, offers of settlement, or proposals of adjustment where time, the nature of the proceeding, and the public interest permit, and (2) to the extent that the parties are unable so to determine any controversy by consent, hearing, and decision upon notice and in conformity with sections 1006 and 1007 of this title.
* * * * * * *
§ 1009. Judicial review of agency action [A.P.A., § 10].
Except so far as (1) statutes preclude judicial review or (2) agency action is by law committed to agency discretion —
* * * * * * *
(e) Scope of review.
* * * In making the foregoing determinations the court shall review the whole record or such portions thereof as may be cited by any party, and due account shall be taken of the rule of prejudicial error. (June 11, 1946, ch. 324, § 10, 60 Stat. 243.)
The technical aspects of regular appraisement within the valuation provisions of section 402 of the Tariff Act of 1930 are not in issue in this case, nor has it been disputed that the appraiser has correctly determined the "foreign market value" and the "purchase price" for the eventual assessment of dumping duties, within the purview of said Antidumping Act.
In substance, it is the contention of the plaintiff that the function of the office of the Secretary of the Treasury exercised under the Antidumping Act of 1921 is subject to the provisions of the A.P.A.; that a dumping finding is rulemaking, as defined in section 4 of said act; and that the admitted failure to publish in the Federal Register general notice of intention to investigate alleged dumping of hardboard from Sweden renders the finding of dumping invalid.
To the extent that these general propositions of law are urged upon the court at this time, there is an area of identification with the case of Elof Hansson, Inc. v. United States, 41 Cust. Ct. 519, Reap. Dec. 9212, reversed, Same v. Same, 43 Cust. Ct. 627, A.R.D. 114, reversed, United States v. Elof Hansson, Inc., 48 CCPA 91, C.A.D. 771, certiorari denied, 368 U.S. 899, and, by reason thereof, the record in the cited case was, upon application of counsel for defendant, incorporated into the instant record.
Initial consideration of these contentions by the writer of this opinion as the single judge sitting in reappraisement in the incorporated case led to the conclusion that the actions of the Secretary of the Treasury under the Antidumping Act of 1921, as amended, were not subject to the provisions of the A.P.A.; that, accordingly, there was no occasion to consider whether or not the exercise of the power to issue a dumping finding was rulemaking or adjudication, within the contemplation of the A.P.A.; and, therefore, that the failure to publish in the Federal Register, as required by section 4(a) of said act, had no effect upon the validity of the finding.
By reference to the legislative history of both the Antidumping Act of 1921 and the A.P.A., this court reasoned that the power of the Secretary of the Treasury under the Antidumping Act to conduct "such investigation as he deems necessary" and to publish his finding "to the extent he deems necessary" was so broad a delegation of discretionary authority as to negative any intention on the part of Congress to curtail it by implication alone in the enactment of the A.P.A.
This approach to the principles involved was rejected by the third division of this court, which held that the A.P.A. was applicable to antidumping procedures; that, in the exercise of the...
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