Zenith Radio Corporation, 64 CCPA 130, C.A.D. 1195 (1977), made the following appropriate comment:

The intent of Congress, as expressed in 8 303 itself, is not difficult to fathom. As the predecessor of this court, in Nicholas & Co. v. United States, 7 Ct. Cust. Appls. 97, T.D. 36426 (1916) and the Supreme Court in Nicholas, 249 U.S. at 39, indicated. the words "bounty" and "grant” are broad but not ambiguous. “Net amount" necessarily means that countervailing duties should equate to the true bounty or grant actually conferred. Congress' intent to provide a wide latitude, within which the Secretary of the Treasury (Secretary) may determine the existence or nonexistence of a bounty or a grant, is clear from the statute itself, and from the Congressional refusal to define the word "bounty" * * *

[ocr errors]

Not without reason has Congress refrained from spelling out either the precise criteria for determining what shall constitute a bounty or grant and what shall not, or the calculations to be followed in determining net amount. As this court said in Hammond Lead, supra note 11: "In the assessment of a countervailing duty, the determination that a bounty or grant is paid necessarily involves judgments in the political, legislative or policy spheres, 58 CCPÅ at 137, 440 F. 2d at 1030, to which the court might well have added the eminently important economic sphere. Our nation's relationships in the world family are particularly sensitive to the assessment of the additional duties known as “countervailing” duties. Such assessment is not just a means of protecting our producers, as Congress has recognized in refusing to require proof of injury before making such assessment; it is also one of the chips in a game played by governments on a world stage. Presumably enacting and reenacting § 303 in this broad light, illuminative of the statute's role in the world, Congress in its wisdom has simply refrained from calling all the countervailing

duty plays in advance.16 In Zenith Radio Corporation v. United States, 437 U.S. 443 (1978), the Supreme Court, in considering what constitutes a bounty or a


16 Congress' most recent reference to the international implications of export incentives and countervailing duties, and to the role of the Executive in connection herewith, appears in § 331(a), Trade Act of 1974, 19 USC 1303(d)(1) (Supp. V. 1975):

It is the sense of the Congress that the President, to the extent practicable and consistent with United States interests, seek through negotiations the establishment of internationally agreed rules and procedures governing the use of subsidies (and other export incentives) and the appli

cation of countervailing duties. To facilitate negotiations, Congress, while continuing to refrain from a definition of “bounty" or "grant," granted authority to the Secretary to suspend during the four years beginning January 3, 1975, and under certain conditions, the imposition of countervailing duties, after having determined that a bounty or grant is in fact being bestowed, 19 USC 1303(d)(2), and to reinstate such duties, 19 USC 1303(d) (3). In § 1303(e), Congress provided for reports to it of actions under $ 1303(a) (2), and for the undoing thereof upon a resolution of disapproval by the Senate or the House.

grant, referred to Senate Report No. 93–1298, page 183 (1974), which so far as is pertinent herein, made the following comment:

The Committee recognizes that the issues involved in applying the countervailing duty law are complex, and that, internationally, there is the lack of any satisfactory agreement on what constitutes a fair, as opposed to an "unfair,” subsidy. In the long run, United States interests will be best served by an international agreement to eliminate subsidies which distort world trade patterns and discriminate against United States sales both at home and abroad. Central to the forthcoming mutilateral negotiations should be the establishment of acceptable international rules governing the use of subsidies. This is particularly important because of the strong possibility that oil importing nations will be tempted to subsidize their manufactured goods exports in order

to pay for their "oil deficits.” [Italic supplied.] With respect to unfair competitive advantage, the Supreme Court in Zenith stated :

*** This purpose is relatively clear from the face of the statute and is confirmed by the congressional debates: the countervailing duty was intended to offset the unfair competitive advantage that foreign producers would otherwise enjoy from export subsidies paid by their governments. See, e.g., 30 Cong. Rec. at 1674 (remarks of Sen. Allison), 2205 (Sen. Caffery), 2225 (Sen. Lindsay). The Treasury Department was well-positioned to establish rules of decision that would accurately carry out this purpose, particularly since it had contributed the very figures relied upon by Congress in enacting the statute. See Zuber v.

Allen, 396 U.S. 168, 192 (1969). In view of the foregoing, it is apparent Congress was aware of the complexities involved not only in determining or defining a bounty or grant, but whether such bounty or grant is fair or unfair.

The test enunciated in Downs v. United States, 187 U.S. 496 (1903) and Nicholas & Co. v. United States, 249 U.S. 34 (1919) is whether, as a result of governmental programs, exportation of the merchandise so produced is encouraged. The fact that governmental assistance was given to aid depressed areas in the Federal Republic of Germany is therefore of no consequence.

Whether as a result of bounties or grants, exportation was encouraged to the extent it would distort foreign trade, it is to be noted in the statement of material facts filed pursuant to rule 8.2(b) of the rules of this court, and particularly the “Notice of Final Countervailing Duty Determination," that no less than 80 percent and up to 99 percent of the production was sold in West Germany. The statement further indicates that the assistence was less than 2 percent of the value of float glass produced in the Federal Republic of Germany. While up to 20 percent of the production and 2 percent of the value may be more than de minimus, the bounties do not appear to have induced the sale

302-263 0

80 - 2


of such merchandise in such quantities or value as would tend to distort international trade. The Secretary has in effect made such a finding in holding countervailing duties were not applicable herein. Such a finding is presumptively correct. Compatible with the finding by the Secretary that governmental assistance given the float glass manuufacturers in West Germany did not distort international trade, the court notes the U.S. Department of Commerce, Bureau of the Census figures ' indicate that exports of float glass by the United States from 1972 to 1975 rose from 59 million square feet to 103 million square feet. The court has utilized the years 1972 to 1975 in view of the fact that plaintiffs in their pretrial discovery proceedings sought, by way of written interrogatories, certain information concerning production, etc. for these years. The discovery was the subject of a motion to compel by plaintiffs and a motion for a protective order by defendant, both of which were granted as to certain information. Of significant interest are the figures from the same source which establish that exports of float glass to West Germany increased from 409,000 square feet in 1972 to 979,000 square feet in 1975. These substantially increased sales in the home market of a country which provided bounties or grants are indicative that there has been no discrimination in sales made by the United States to West Germany. It follows that United States sales were therefore competitive in the home markets of West Germany. What better proof can be adduced that float glass produced in the Federal Republic of Germany under a bounty or grant system did not tend to distort international trade or discriminate against United States sales for home consumption or export.

The import statistics of the U.S. Department of Commerce, Bureau of the Census,’ are arranged according to the provisions of the Tariff Schedules of the United States since the information is obtained from the entries of merchandise utilizing the TSUS number plus the statistical suffix. There are nine provisions under which float glass, plate glass, and colored or special glass may be entered. The court is not privy to the size or type of float glass covered by this action and hence has reviewed the entire nine categories (excluding glass with wire) of possible classification under the Tariff Schedules of the United States. It is to be noted, however, that the 1972 import statistics establish imports from West Germany in all nine categories. While the figures may include categories of glass not intended to be encompassed within this action, the statistical information is never



| U.S. Bureau of the Census, "U.S. Exports, Schedule B Commodity by Country-Domestic Merchan. dise," report FT 410: Item No. 664404) for the years 1972-75.

U.S. Bureau of the Census, U.S. Imports for Consumption, TSUSA Commodity by Country of Origin, report FT 246 for the years 1972–75.

8 Tariff Schedules of tha United States, item numbers including statistical suffix: 543.2100, 543.2300, 543.2737, 543.2770, 543.3100, 543.6100, 543.6300, 543.6700, and 343.6900.


theless enlightening. Imports of glass from all countries in these nine item numbers decreased from 72 million square feet in 1972 to 19 million square feet in 1975. Imports in these categories from West Germany fell from 3,900,000 square feet in 1972 to 518,000 square feet in 1975.

According to the U.S. Department of Commerce, Bureau of the Census, the domestic production covering float and plate glass not over one-eighth inch in thickness and over one-eighth inch but not over one-fourth inch in thickness establishes a marked increase. Production rose from 1,424 million square feet in 1972 to 1,920 million square feet in 1975.

The above figures covering exports, imports, and domestic production, while they may not be determinative, are indeed supportive of the Secretary's finding. It is a well established principle of law which needs no citation that courts may take judicial notice of official publications.

Congress in enacting the countervailing duty statute was primarily interested in merchandise produced under a bounty or grant system which was imported into the United States and the possible effect it might have on domestic producers of the merchandise involved in both domestic and foreign sales. Absent are figures involving production, consumption, importation, and exportation of float glass of every producing nation. However, the 1972–75 figures cited supra support a finding that float glass produced in the Federal Republic of Germany did not tend to distort international trade and did not discriminate against the U.S. production and sales, both domestic and foreign.

Based upon the record, plaintiffs have failed to overcome the presumption of correctness attaching to the action of the Secretary.

In view of this finding, the court deems it unnecessary to consider the alternative positions of the parties.

Plaintiffs' motion for summary judgment is, therefore, denied and defendant's cross-motion for summary judgment is granted.

Judgment will be entered accordingly.

(C.D. 4783)


Optical glass Glass merchandise imported from West Germany was classified by customs officials as optical glass under item 540.67 of the tariff schedules and assessed with duty at the rate of 40 percent ad

• Current industrial reports MQ-32A for the years 1972–75: Items designated 3211213 and 3211215.

[ocr errors]

valorem. The importer contended that the merchandise should have been classified as colored or special glass, not ground, polished or processed, under item 542.92 of the tariff schedules with a rate of duty of 0.7 cent per pound plus 2.5 percent ad valorem. The court found that the glass, which was of high quality, capable of performing an optical function, and used in optical instruments, was not shown to have been incorrectly classified by customs officials as optical glass. EVIDENCE-PRESUMPTION

The classifying official, as a matter of law, is presumed to have found the existence of every fact necessary to support the classification. W. A. Gleeson v. United States, 58 CCPA 17, 432 F. 2d 1403_(1970); Novelty Import Co., Inc. v. United States, 53 CCPA 28, C.A.D. 872 (1966); F. H. Kaysing v. United States, 49 CCPA 69, C.A.D. 798 (1962). The presumption of correctness pertains not only to the ultimate conclusion of the classifying official, but also to every subsidiary fact necessary to support that conclusion. United States v. New York Merchandise Co., Inc., 58 CCPA 53, 435 F. 2d 1315 (1970). EVIDENCE-PRESUMPTION AND BURDEN OF PROOF

The presumption of correctness serves the useful purpose of determining the extent of the importer's burden of proof. United States v. New York Merchandise Co., Inc., 58 CCPA 53, 435 F. 2d 1315 (1970). EVIDENCE-CONCLUSORY STATEMENTS

A statement of a witness, which is based solely on his own opinion, and which is merely a conclusion of an ultimate fact in issue, has no probative value. Keer Maurer Company v. United States, 46 CCPA 110, C.A.D. 710 (1959); Brooks Paper Company v. United States, 40 CCPA 38, C.A.D. 495 (1952); Semon Bache & Co. v. United States, 28 CCPA 166, C.A.D. 140 (1940). PRESUMPTION AND BURDEN OF PROOF

The presumption of correctness attaching to the customs classification is overcome when plaintiff has discharged the burden of persuading the trier of the fact of the nonexistence of the presumed fact. Sanji Kobata et al. v. United States, 66 Cust. Ct. 341, 326 F. Supp. 1397 (1971). The plaintiff must bear the ultimate burden of persuasion. United States v. New York Merchandise Co., Inc., 58 CCPA 53, 435 F. 2d 1315 (1970). COMMON MEANING

The common meaning of a tariff term is a question of law to be decided by the court, and the court may consult dictionaries, scientific authorities and other reliable sources of information. Trans-Atlantic Company v. United States, 60 CCPA 100, 471 F. 2d 1397 (1973); United States v. National Carloading Corp. et al., 48 CCPA 70, C.A.D. 767 (1961); Nomura (America) Corp. v. United States, 62 Cust. Ct. 524, 299 F. Supp. 535 (1969), af'd, 58 CCPA 82, 435 F. 2d 1319 (1971).

« ForrigeFortsett »