Moreover, even if, arguendo, we accepted appellant's argument that the usual wholesale quantity was 50 rolls, there is nothing in the record *** that even hints that orders of 50 rolls would have been freely sold in 1960-1962 to other distributors at the same price per lineal yard which was extended to Dodge. Indeed, it appears very clear from the testimony of Mr. Dodge that the reason for the low price to Dodge Cork was not the size of each individual order as being at least 50 rolls, but the cumulative annual volume Dodge took. Thus, another distributor not having the accumulated volume of purchases of Dodge, could not presumably have obtained the same price per lineal yard even if he were to have placed an individual order for a minimum of 50 rolls.

In this case, we do not even have the equivalent of the "50 rolls" discussed above by the court of appeals. We have only an entirely different sum, an aggregate volume which does not correspond in any way to usual wholesale quantities.

Plaintiff has not shown that the price which it charges its United States purchasers was different for different quantities in the individual sales and, hence, has given no reason to resort to the statutory language defining usual wholesale quantities in section 402(f) (5), supra.

My analysis of this point is essentially the same as that contained in Independent Cordage Co., Inc. v. United States, 63 Cust. Ct. 669, A.R.D. 259, 302 F. Supp. 1335 (1969), in which the court stated as follows:

**What appellant has done is inject into the facts an issue of "usual wholesale quantities" on the legal premise that the total cumulative quantity of the individual quantities sold and purchased in a calendar year, is just as much a usual wholesale quantity as are the individual quantities. ***

The trial judge rejected appellant's legal premise and held that, as a matter of law, it is the individual wholesale quantities in which merchandise is freely sold to all purchasers in the ordinary course of trade that determines "usual wholesale quantities", not the cumulative quantity purchased by some over an elapsed period. We read the law the same way. So read, we also find that, as a matter of fact, the sisal twine was not sold at different prices for different quantities, which is the factual reason for section 402(f) (5), supra, and affirm the decision below. [Emphasis supplied.] See also Dushoff Distributing Corp. v. United States, 64 Cust. Ct. 687, R.D. 11702 (1970), for a cogent explanation of this line of reasoning.

Plaintiff's third claim is that the imported merchandise should be appraised at a value of $1.79 per square foot, said price being one which was freely offered to all purchasers regardless of quantity. I am of the opinion that the testimony herein is sufficient to establish a prima facie case that this was the export value of said merchandise. The uncontroverted testimony of the witness is sufficient herein and

price lists and other documentary evidence demanded by the defendant are not necessary in this instance. United States v. Edson Keith & Co., 5 Ct. Cust. Appls. 82, T.D. 34128 (1941); Park Ave. Imports v. United States, 62 Cust. Ct. 1035, A.R.D. 255 (1969).

In light of the above, I make the following findings of facts:

1. That the merchandise involved herein consists of certain 3-inch armorplate glass which was exported from England in July 1966. 2. That the merchandise herein is not on the final list of the Secretary of the Treasury, T.D. 54521.

3. That the merchandise herein was appraised at a value of $1.89 per square foot less 2 percent packed, less the cost of ocean freight and marine and war insurance.

4. That both parties herein agree that the proper basis of appraisement is export value as defined in section 402 (b) of the Tariff Act of 1930, as amended by the Customs Simplification Act of 1956.

5. That at the time of exportation said merchandise was available for export to the United States to all purchasers in the usual wholesale quantities and in the ordinary course of trade at a price of $1.79 per square foot.

I therefore conclude as matters of law:

1. That export value as defined in section 402 (b) of the Tariff Act of 1930, as amended, is the proper basis of appraisement of the merchandise herein.

2. That plaintiff has established a prima facie case that such merchandise was freely sold or offered for sale to all purchasers at wholesale in the usual wholesale quantities and in the ordinary course of trade at the price of $1.79 per square foot.

3. That the export value of the merchandise herein is $1.79 per square foot less 2 percent packed, less the cost of ocean freight and marine and war insurance.

Judgment will be entered accordingly.

(R.D. 11718)

IMBERT IMPORTS, INC., ET AL. v. UNITED STATES

Cement

DUMPING SCOPE OF REVIEW OF TARIFF COMMISSION FINDING

This court will review the acts of the Tariff Commission to see whether it acted within the scope of its statutory powers in accordance with the procedures set forth in the relevant statute and based its findings on a correct interpretation of the law. This court will not, however, weigh the evidence considered by the Tariff Commission,

DUMPING-TARIFF COMMISSION FINDING

The finding of the Tariff Commission that an industry in the United States was likely to be injured and the basing of such finding on factors such as sales at less than fair value and the capacity and incentive for further such sales were not erroneous.

ADMINISTRATIVE PROCEDURE ACT

The Administrative Procedure Act (5 U.S.C. § 1001) does not apply to the findings of the Tariff Commission under the Antidumping Act of 1921. Citing T. M. Duche & Sons v. United States, 39 CCPA 186, C.A.D. 485 (1952).

Reappraisement R63/5025 and 13 others

Entered at San Juan, P. R.

Entry Nos. 8033, etc.

(Decided on remand [A.R.D. 224] July 23, 1970)

Barnes, Richardson & Colburn (Norman C. Schwartz and David O. Elliott of counsel) for the plaintiffs.

William D. Ruckelshaus, Assistant Attorney General (Glenn E. Harris and Bernard J. Babb, trial attorneys), for the defendant.

WATSON, Judge: These appeals for reappraisement are before this court for decision after an interesting career during the course of which they were dismissed by the trial judge for failure to prosecute and then restored to the calendar by the Second Division in Appellate Term. Imbert Imports, Inc. v. United States, 58 Cust. Ct. 848, A.R.D. 224 (1967).

These appeals place in issue the assessment of a special dumping duty pursuant to section 201 (a) of the Antidumping Act of 1921, as amended (19 U.S.C. § 160 (a) (1958)), and the correctness of the finding of the Tariff Commission that an industry in the United States was likely to be injured by reason of the importation of such merchandise. Section 201 of the Antidumping Act of 1921, provides as follows:

(a) Whenever the Secretary of the Treasury (hereinafter called the "Secretary") determines that a class or kind of foreign merchandise is being, or is likely to be, sold in the United States or elsewhere at less than its fair value, he shall so advise the United States Tariff Commission, and the said Commission shall determine within three months thereafter whether an industry in the United States 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. The said Commission, after such investigation as it deems necessary, shall notify the Secretary of its determination, and, if that determination is in the affirmative, the Secretary shall make public a notice (hereinafter

in sections 160-173 of this title called a "finding") of his determination and the determination of the said Commission. For the purposes of this subsection, the said Commission shall be deemed to have made an affirmative determination if the Commissioners of said Commission voting are evenly divided as to whether its determination should be in the affirmative or in the negative. The Secretary's finding shall include a description of the class or kind of merchandise to which it applies in such detail as he shall deem necessary for the guidance of customs officers.

(b) Whenever, in the case of any imported merchandise of a class or kind as to which the Secretary has not so made public a finding, the Secretary had reason to believe or suspect, from the invoice or other papers or from information presented to him or to any person to whom authority under this section has been delegated, that the purchase price is less, or that the exporter's sales price is less or likely to be less, than the foreign market value (or, in the absence of such value, than the constructed value), he shall forthwith publish notice of that fact in the Federal Register and shall authorize, under such regulations as he may prescribe, the withholding of appraisement reports as to such merchandise entered, or withdrawn from warehouse, for consumption, not more than one hundred and twenty days before the question of dumping has been raised by or presented to him or any person to whom authority under this section has been delegated, until the further order of the Secretary, or until the Secretary has made public a finding as provided for in subdivision (a) in regard to such merchandise.

(c) The Secretary, upon determining whether foreign merchandise is being, or is likely to be, sold in the United States at less than its fair value, and upon making its determination under subsection (a) of this section, shall each publish such determination in the Federal Register, with a statement of the reasons therefor, whether such determination is in the affirmative or in the negative.

The record herein is entirely documentary, consisting of the papers filed in the Tariff Commission proceeding and the Tariff Commission's determination of likelihood of injury. TC Publication 87, April 19, 1963.

The importations in question consist of Portland gray cement exported from the Dominican Republic during the period of October 25, 1962 to March 25, 1963 and entered at the port of San Juan, Puerto Rico. Prior to these exportations the Secretary of the Treasury had ordered that appraisements of entries of Portland gray cement from the Dominican Republic were to be withheld. On January 16, 1963, the Secretary of the Treasury made a determination that such cement was being, or was likely to be, sold in the United States at less than fair value within the meaning of section 201 (a) of the Antidumping Act of 1921. The Tariff Commission then instituted an investigation

and determined on April 19, 1963 that an industry in the United States was likely to be injured by reason of such importation at less than fair value. These importations were, accordingly, assessed with dumping duty.

Plaintiffs object to the Tariff Commission's finding that the likelihood of injury existed and claim that said finding is arbitrary and not based on substantial evidence. Plaintiffs also claim that the punishment, so to speak, does not fit the "crime" since the likelihood of injury, if there was any, was to industry in the New York area, while the assessment of dumping duties affects importations into Puerto Rico, whose industry was not found likely to be injured.

Central to the disposition of this case is the scope of this court's review of the validity of the actions of the Secretary of the Treasury and the Tariff Commission. Plaintiffs contend that the scope of this review should be that provided for in the Administrative Procedure Act, 5 U.S.C. § 1001, as specifically set forth in section 1009 (e). Scope of review.

So far as necessary to decision and where presented the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of any agency action. It shall (A) compel agency action unlawfully withheld or unreasonably delayed; and (B) hold unlawful and set aside agency action, findings, and conclusions found to be (1) arbitrary, capricious, and abuse of discretion, or otherwise not in accordance with law; (2) contrary to constitutional right, power, privilege, or immunity; (3) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; (4) without observance of procedure required by law; (5) unsupported by substantial evidence in any case subject to the requirements of sections 1006 and 1007 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or (6) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court. 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.

I am of the opinion that although plaintiffs are entitled to a measure of review of the acts of the Tariff Commission, it is not as broad as that outlined in the Administrative Procedure Act for the reason that said act does not apply to the proceedings in question. T. M. Duche & Sons v. United States, 39 CCPA 186, C.A.D. 485 (1952). In its role in antidumping proceedings the Tariff Commission is not an agency within the intent of the Administrative Procedure Act, nor do its methods of deliberation conform to the "rule making" activity to which said act is directed. The Tariff Commission herein is acting in