7 dise and for the assessment and collection of countervailing duties. A countervailing duty igyestigation was performed by the Secretary of the Treasury. The Secretary was not required to advise the United States Tariff Commission of any countervailing duty investigations, since there was, at that time, no requirement of a showing that an industry in the United States was or was likely to be "injured" or "prevented from being established." The first antidumping statute was enacted in 1916 as section 801 of the Revenue Act of 1916 (the "1916 Act"). Under the 1916 Act, any party who was injured as a result of dumped imports had a private cause or right of action against those involved in the importation of the dumped merchandise and could bring suit in a federal district court. If the defendant was found liable, the 1916 Act provided for treble damages to be awarded to the plaintiff. It should be noted that in order for the dumping to be deemed violative of the 1916 Act, it had to be done with the intent to "destroy" or "injure" an industry in the United States. It should also be noted that the 1916 Act provided both civil and criminal penalties for dumping violations. 5/ 6/ See, e.g., Treas. Dec. 67-102 (1967). Revenue Act of 1916, ch. 463, 39 Stat. 798-799 (1916). This Act prohibited "any person [from] importing or assisting in importing any articles from any foreign country into the United States . . . to be imported or sold such articles within the United States at a price substantially less than the actual market value or wholesale price of such articles . . " Id. رو "Any person who violates or combines or conspires with any other person to violate this section is guilty of a misdemeanor, and, on conviction thereof, shall be punished by a fine not exceeding $5000, or imprisonment not exceeding one year, or both, in the discretion of 8 Congress thus went on to enact the Antidumping Act of 1921 (the "1921 Act"), which was broader in scope but left the 1916 Act in place as a basis for private remedies. The 1921 Act, although amended in 1954,1 1958, 1970, and 1975, remained basically intact until it was repealed by section 106(a) of the Trade Agreements Act of 1979, Pub. L. 96-39, 93 Stat. 193, and replaced by new antidumping provisions added by title I, § 101 of the Trade Agreements Act of 1979. The procedures promulgated to implement the 1921 Act are codified at 19 U.S.c. § 160 (1982). Under this section, the Secretary of the Treasury, upon a determination that a certain class or kind of foreign merchandise was to be sold in the United States at less than its fair value, was to inform the U.S. Tariff Commission (renamed the International Trade Commission in 1974) of this fact. Within three months, the Commission was to determine whether a United States industry was or was likely to be injured, or was being prevented from being established, due to the importation of the foreign merchandise. Importers have always been able to challenge assessments under these statutes. One of the first such cases, involving the countervailing duty statute, was decided by the Supreme Court in Downs v. United States, 187 U.S. 496 (1903). An antidumping case has yet to be considered by the 10/ Antidumping Act of 1921, ch. 14, 42 Stat. 11 (1921) (repealed 1979). 11/ It should be noted that the 1954 amendment to the 1921 12/ 19 U.S.C. § 160 (a) (repealed 1979). Supreme Court. However, assessments of antidumping duties were reviewed by the Board of General Appraisers, by the United States Customs Court, and by the United States Court of Customs Appeals and its successor, the Court of Customs and Patent Appeals, from the time of the enactment of the statute. See, e.g., United States v. Tower & Sons, 14 Ct. Cust. Appls. 421 (1927); United States v. Central Vermont Railway Co., 17 Ct. Cust. Appls. 166 (1929); Kleberg & Co. Inc. v. United States, 71 F.2d 332 (1933). All of these reviewing bodies were, at the time of these decisions, Article Í courts, a mode of review sustained in Ex Parte Bakelite Corp., 279 U.S. 438 (1929). These reviews all arose by virtue of the importers invoking the usual machinery and rules for challenging the assessment of ordinary duties as being excessive. Countervailing and antidumping duties have been treated as special duties, and have always been the subject of appeals by the importer when assessed. It should be noted that the imposition of AD/CVD duties involves two phases -- a quasi-rulemaking proceeding resulting in an umbrella order finding antidumping duties or countervailing duties applicable to imports from one or more countries and further administrative procedure reducing that general finding to an assessment of duty on a particular importer in respect of a particular importation. The early review cases were brought by the importers after the second stage, claiming the duty assessments were excessive. Since 1980, the judicial review of AD/CVD cases has been focused on the first stage and on the correctness of the umbrella order. By statute, numerous parties have been given standing to seek review, along with the importers. It is this multi-party review of the umbrella order that the FTA would alter. Because of the Second World War and the United States' premier position in the world economy for the two decades following the Second World War, there were relatively few countervailing duty or antidumping duty cases until the mid-1960's; therefore, there exist only a few court decisions through 1970. The process of expanding standing to seek review began with section 516 of the Tariff Act of 1922, and 10 15/ later, section 516 of the Tariff Act of 1930, in which Congress, for the first time, gave United States manufacturers the right to contest the classification and valuation of merchandise imported into the United States. Before this enactment, payment of duties had been regarded as a matter involving only the importer and the Government. By these statutes, Congress recognized that the interests of United States producers were sufficient to entitle them to challenge the methods employed by the Treasury in calculating duties generally, not just countervailing and antidumping duties. In 1960, the United States Court of Appeals for the D.C. Circuit held that a U.S. manufacturer seeking to review a negative antidumping determination should proceed under section 516 and resort to the Customs Court. North American Cement Corp. v. Anderson, 284 F.2d 591 (D.C. Cir. 1960). With respect to challenges regarding the failure to impose countervailing duties, the Court of Customs and Patent Appeals, reversing the Customs Court, held in Hammond Lead Products, Inc. v. United States, 440 F.2d 1024 (1971), cert. denied, 404 U.S. 1005 (1971), that there was no jurisdiction under section 516 to entertain a U.S. manufacturer's complaint that no countervailing duties had been imposed. By the Trade Act of 1974, 16/ Congress amended the statute to make clear that U.S. manufacturers were to have the right to institute suit in the Customs Court to review negative countervailing and antidumping duty determinations. The Customs Court promptly put into effect this grant of jurisdiction, which Congress had termed, "Equal Judicial Review Rights for Domestic Producers."- SMC Corporation v. United States (Brother International Corp., Party-inInterest), 450 F. Supp. 1178 (1978). U.S. producers were still not equal, however, as was demonstrated by the decisions of a federal district court, Court of Appeals, and the United States Customs Court 15/ Tariff Act of 1930, ch. 497, 46 Stat. 735 (1930). 16/ 17/ Trade Act of 1974, Pub. L. 93-618, 88 Stat. 2048 (1974) (codified as amended at 19 U.S.C., § 2101-2480) (1982). S. Rep. No. 1298, 93rd Cong., 2d Sess. 178, reprinted in 11 in Flintkote Co. v. Blumenthal, 469 F. Supp. 115 (N.D.N.Y. 1979), aff'd, 596 F.2d 51 (1st Cir. 1979), Flintkote Co. v. United States, 467 F. Supp. 626 (1979), which denied the right of an American producer to seek an injunction pendente lite to prevent liquidation of Customs entries of dumped merchandise. fgyld Because of these decisions and because Congress was concerned that the Customs Court would hold that it conduct de novo review in countervailing duty cases, Congress enacted another judicial review statute as part of the Trade Agreements Act of 1979. This 1statute, adding a new section 516A to the Tariff Act of 1930, provides standing to exporters, affected foreign governments, labor unions and trade associations, as well as importers and domestic manufacturers, and goes on to provide that any party to the administrative phase of an AD/CVD investigation may challenge the resulting determinations in what was later to become the Court of International Trade, as noted above. The statute, since its enactment in 1979, has given rise to cases by both U.S. manufacturers and other interested parties and by importers and exporters. The procedure is by motion for summary judgment under Rule 56.1 of the CIT, based on the administrative records certified to the court by the ITA and/or the ITC, depending on which phases of the order are challenged. A. II. CURRENT U.S. ANTIDUMPING AND COUNTERVAILING Administrative Proceedings The agency actions which are now the subject of judicial review and would be subject to binational panel review under the FTA are the investigations and determinations of the ITA and the ITC under the antidumping and countervailing duty laws. The antidumping law, 19 U.S.C. §§ 1673-1673g, 1675, 1677-1677h (1982), requires the ITA to determine whether 18/ As it did in Michelin Tire Corporation v. United States, 469 F. Supp. 626 (1979), petitions for mandamus and prohibition den. sub nom. United States v. Watson, 603 F.2d (1979). |