The opinion of the court was delivered by: FOLEY
MEMORANDUM-DECISION and ORDER
By this action, plaintiff Flintkote Company, Glens Falls Division, ("Flintkote") seeks to enjoin defendants W. Michael Blumenthal, Secretary of the Treasury ("Secretary"), Robert E. Chasen, Commissioner of Customs, and W. Richard Nystrom, District Director of Customs at the Port of Ogdensburg, New York, from proceeding with the appraisement and liquidation of entries of portland hydraulic cement, of every type except white nonstaining cement, from Canada into the United States, except as may be necessary for Flintkote to perfect jurisdiction in the United States Customs Court, made on or after March 17, 1978. The injunction sought, by its terms, would expire upon final resolution of Flintkote's contemplated suit in the Customs Court and its appellate tribunals challenging the Secretary's failure to impose special dumping duties upon this merchandise and the determination of the United States International Trade Commission ("ITC") upon which the Secretary's action is founded. Plaintiff further seeks an order of this Court directing the Secretary to cancel any liquidations of such entries made on or after September 28, 1978, and declaring that the Antidumping Act of 1921, as amended, 19 U.S.C. §§ 160 Et seq., and in particular 19 U.S.C. § 160 (b)(1)(B) requires that all of the above relief be granted.
Now before the Court is plaintiff's motion for a preliminary injunction, which essentially seeks the same relief requested in its complaint; that is, an injunction Pendente lite in the United States Customs Court and its appellate tribunals. Also before the Court is a motion to dismiss by defendants Blumenthal, Chasen, and Nystrom (hereinafter sometimes referred to as "the federal defendants") on the ground of lack of jurisdiction over the subject matter or, in the alternative, failure to state a claim upon which relief can be granted.
During oral argument on January 15, 1979, I granted four separate motions from the bench made by Canada Cement Lafarge Limited and Citadel Cement Corporation, Northeast Cement Division, Lake Ontario Cement Limited and Rochester Portland Cement Corp., St. Lawrence Cement Co. and Independent Cement Corporation, and Genstar Ltd. to intervene under Rule 24(a), Fed.R.Civ.P., in this action as parties-defendant. In addition, while a separate motion to dismiss has been filed by defendant-intervenors St. Lawrence Cement Co. and Independent Cement Corporation, all other defendant-intervenors have chosen to join in the motion to dismiss the complaint made by the federal defendants. It should be noted that these defendant-intervenors are exporters, importers, and/or distributors of portland hydraulic cement from Canada.
The Antidumping Act of 1921, as amended, 19 U.S.C. §§ 160 Et seq., (hereinafter sometimes referred to as "the Act") deals with injurious price discrimination and is designed to prevent the
actual or threatened harm to a domestic industry caused by the sale of merchandise in the United States at prices lower than in the country of origin.
J. C. Penney Co. v. United States Treasury Department, 439 F.2d 63, 64 (2d Cir.), Cert. denied, 404 U.S. 869, 92 S. Ct. 60, 30 L. Ed. 2d 113 (1971). Procedurally, the Act entails two separate determinations: First, the Secretary must make a determination as to whether or not a class or kind of merchandise is being sold or is likely to be sold in this country or elsewhere at less than fair value ("LTFV"); second, if the first determination is in the affirmative, then the ITC must determine whether an industry in this country 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, See 19 U.S.C. § 172.
Once a tentative determination is made by the Secretary that sales are being or are likely to be made at LTFV, he must require the withholding of appraisement, and by implication liquidation as well until his further order or until a "dumping finding" is published. 19 U.S.C. § 160(b)(1)(B). While appraisement involves a determination of the value of imported merchandise, liquidation is the final administrative assessment of customs duties. The evident purpose of this provision is to make possible the imposition of special dumping duties, at least from the date of a withholding of appraisement notice, in the event of an ultimate "dumping finding." See 19 U.S.C. § 167.
If both the Secretary and the ITC reach an affirmative determination, then a "dumping finding" is published by the Secretary and a "special dumping duty" is collected, if appropriate, on all unappraised entries of the merchandise in question that entered for consumption not more than 120 days before the issue of dumping was raised by or presented to the Secretary. 19 U.S.C. §§ 160(a), 161(a). See 19 C.F.R. § 153.43 (1978). The general procedures followed in a dumping investigation are set forth in Timken Co. v. Simon, 176 U.S.App.D.C. 219, 221-22, 539 F.2d 221, 223-24 (1976), and for present purposes need not be further discussed.
Portland hydraulic cement, a mixture of limestone, clay, silica, and other raw materials, is used to form concrete and is primarily consumed in highway and building construction. This merchandise is imported from Canada free of duty under the present Tariff Schedules of the United States. On or about August 2, 1977, plaintiff Flintkote, an American manufacturer of portland hydraulic cement, wrote to the Commissioner of Customs alleging that imports of portland hydraulic cement, other than white nonstaining cement, (hereinafter referred to as "portland hydraulic cement") from Canada were being or were likely to be sold at LTFV causing injury to an industry in the United States within the meaning of the Act. See 19 U.S.C. § 160(c)(1); 19 C.F.R. §§ 153.26, 153.27 (1978). On the basis of this information, the Secretary on September 8, 1977, or 37 days after receipt of Flintkote's petition, published an "Antidumping Proceeding Notice" with regard to portland hydraulic cement from Canada and began an investigation. 42 Fed. Reg. 45059 (1977). See 19 U.S.C. § 160(c)(1); 19 C.F.R. § 153.30 (1978).
Thereafter, on March 17, 1978, or six months and nine days after publication of the antidumping proceeding notice, the Secretary published a "Withholding of Appraisement Notice," to be effective immediately and to expire at the end of six months unless previously revoked, and made a tentative determination that sales at LTFV were being made. 43 Fed. Reg. 11294-95 (1978). See 19 U.S.C. § 160(b)(1)(B); 19 C.F.R. §§ 153.32, 153.35(b) (1978). The effect of this notice was to make importers of portland hydraulic cement from Canada potentially liable for special dumping duties from the date of the notice and to impose the requirement of filing a bond to cover this potential liability in the event of an ultimate "dumping finding" to obtain the release of any such merchandise from the United States Customs Service. See 19 U.S.C. § 167; 19 C.F.R. § 153.50 (1978).
On June 22, 1978, or three months and five days after publication of the withholding of appraisement notice, the Secretary concluded his investigation and on June 28, 1978, a "Determination of Sales at Less Than Fair Value" was published to the effect that portland hydraulic cement from Canada is being or is likely to be sold at LTFV and that the case was being transferred to the ITC pursuant to 19 U.S.C. § 160(a) and 19 C.F.R. § 153.41 for a determination as to whether these sales at LTFV have caused injury or are likely to cause injury to an industry in the United States. 43 Fed. Reg. 28066-68 (1978). See 19 U.S.C. § 160(b)(3); 19 C.F.R. §§ 153.36, 153.37 (1978).
On July 6, 1978, the ITC published a "Notice of Investigation and Hearing." 43 Fed. Reg. 29192 (1978). See 19 C.F.R. § 207.4 (1978). Then, on September 25, 1978, after three days of public hearings and within three months after the Secretary's publication of a LTFV determination, the ITC determined, by a vote of three commissioners to one with two commissioners not participating, that sales of portland hydraulic cement from Canada at LTFV in this country were not causing, nor were they likely to cause, injury to an industry in the United States within the meaning of the Act. 43 Fed. Reg. 44907-10 (1978). See 19 U.S.C. § 160(a); 19 C.F.R. § 207.4 (1978). In short, the ITC found that whatever injury the American cement industry is suffering, it is not causally connected with LTFV imports from Canada. Prevention of the establishment of an industry in the United States by reason of these LTFV sales was not at issue in this investigation. A petition for reconsideration filed by Flintkote was later denied by the ITC.
On September 28, 1978, the Commissioner of Customs advised the appropriate customs officers of the negative injury determination and informed them that they could now appraise and liquidate entries of portland hydraulic cement from Canada, including those entries with respect to which appraisement and liquidation had been withheld, without the imposition of special dumping duties. Furthermore, it would appear that any bonds which had been furnished to guarantee payment of any special dumping duties found to be due would be cancelled as liquidation of each entry is completed.
By letter dated October 30, 1978, plaintiff Flintkote informed the Secretary that it believes the negative injury determination of the ITC is contrary to the law and not supported by the evidence, announced its intention to appeal, and requested that the Secretary continue to withhold appraisement and liquidation of entries of portland hydraulic cement from Canada made on or after March 17, 1978. On that same date, plaintiff filed an American manufacturer's petition with the United States Customs Service requesting, among other things, the imposition of special dumping duties on portland hydraulic cement from Canada. This was done to set in motion the process that would enable Flintkote to challenge the negative injury determination of the ITC in the Customs Court. See 19 U.S.C. § 1516(a) and (c); 28 U.S.C. §§ 1582(c), 2632(a); 19 C.F.R. § 175.11 (1978). One of the errors that Flintkote attributes to the ITC is that it based its decision upon a finding of lack of injury or likelihood of injury to the American cement industry as a whole rather than upon a finding with regard to injury or likelihood of injury to the northeast regional market of the American cement industry. See U.S.Code Cong. & Admin. News, pp. 7315-17 (1974).
By letter dated November 20, 1978, plaintiff's request that appraisement and liquidation continue to be withheld was denied on behalf of the Secretary. Consequently, plaintiff commenced the present action in this Court on December 8, 1978, and the Secretary and the United States Customs Service, which is a constituent unit of the United States Department of the Treasury, agreed to temporarily suspend appraisements and liquidations until a decision by this Court on the merits of the action. In the meantime, a notice was published on behalf of the United States Customs Service and the Department of the Treasury on December 12, 1978, advising the public that Flintkote had filed a petition pursuant to 19 U.S.C. § 1516. 43 Fed. Reg. 58129 (1978). See 19 C.F.R. § 175.21 (1978).
Flintkote's § 1516 petition was denied on Friday, January 12, 1979. 44 Fed. Reg. 6550-51 (1979). During oral argument in this Court the following Monday, plaintiff indicated its intention to promptly commence an action in the United States Customs Court to review the substantive basis of its claim. See 19 ...