dissenting:
This is the third case relating to the treatment of dried egg albumen for tariff purposes, wherein section 336 of the Tariff Act of 1930 — the flexible tariff provision — has been involved, to reach this court.
The first case was that of David L. Moss Co., Inc. v. United States, decided March 27, 1939, and reported in 26 C. C. P. A. (Customs) 381, C. A. D. 45. The second headnote to our decision there reads:
The validity of a Presidential proclamation issued under section 336, Tariff Act of 1930 (raising the tariff rate on dried egg albumen, among other commodities), is challenged on the ground that the report of the United States Tariff Commission and the facts secured by the commission in its investigation establish that dried egg albumen was not a “domestic article” within the meaning of those words as used in said section 336. A majority of the court concurs in the view that, while it is not the function of the court to weigh the evidence and determine the facts, it may go behind the report of the commission, which is before the court, to determine whether the finding of the President and the commission that dried egg albumen was such a domestic article is supported by any substantial evidence. Citing Shields v. Utah Idaho Cent. R. R. Co., 305 U. S. 177.
The author of the prevailing opinion was Honorable John J. Parker, Senior Judge of tbe United States Circuit Court of Appeals for the Fourth Circuit, and the late Judge Irvine L. Lenroot concurred in his opinion.
The late Judge Charles S. Hatfield did Dot agree with the holding quoted from the headnote, supra, but concurred in the conclusion.
The late Judge Oscar E. Bland and I agreed with that holding and dissented from the conclusion because, in our opinion, the facts appearing did not disclose tbe existence of a domestic dried egg albumen industry within the purview of the statute.
In the course of my dissenting opinion in tbe case, I said:
The strongest statement, indeed practically the only statement, to be found in the report as to the amount of dried egg albumen produced domestically during the representative period, is contained in a footnote in that part of the report where the commission summarized its findings, which footnote reads:
In 1929 one company tray-dried about 100,000 pounds of liquid whites, partly to salvage them. In 1931 another company, by a modified spray method which eliminates the pressure nozzle, and by a painstaking heat control, asserts that it has developed a method which is adapted to mass production methods and labor costs in the United States. [Italics quoted.]
It will be noted that the statement relative to what was done in 1931 (which incidentally was not one of the years embraced in the representative period) does not include any actual production but merely'indicates a possibility of production. The poundage (100,000 pounds) stated to have been dried in 1929 (the only year of the representative period in which the report shows any to have been produced) was the weight of the whites before drying. The weight after drying, as is stated in the opinion by Judge Parker, was approximately 10,000 pounds. It seems from *193statements in the report that the importations of dried egg albumen during the three years of the representative period were in excess of ten million pounds. So; the domestic production was only one-tenth of 1 per centum of the total amount consumed. The report is replete with statements' indicating clearly that the productions of dried egg albumen during the representative period were merely experimental in character. This is confirmed by the statement in the opinion of Judge Parker, based upon an independent examination of the testimony taken by the commission, saying. “It is true that there was very little evidence as to production of dried egg albumen, and most of this was as to production of an experimental character.” I have no quarrel with the finding immediately following the above to the effect that the feasibility of production was established; also, I agree that production costs were ascertained, but those were the costs of the purely experimental productions. There was, as I view it, no other kind of production shown.
In the opinion-by Judge Parker it is assumed, without deciding, “that it was the intention of Congress that duties should be raised under the flexible provisions of the tariff act only in cases where a domestic industry was in existence which Congress desired to protect, and that it was not intended that the commission should increase duties in an attempt to bring new industries into existence.” For reasons succinctly stated by Judge Bland in his dissenting opinion, I agree with him that the assumption as stated is correct, and I would definitely hold it to be a part of the law of the case, as I also would the further assumption stated in the opinion by Judge Parker, “that sporadic or experimental production would not satisfy the test of an existing domestic industry.”
The following I take from the dissenting opinion of Judge Bland:
Now, being in agreement with the leading opinion that we may go to the record made before the Tariff Commission under the circumstances at bar, the issue is squarely presented: Does the record, which contains no conflicting testimony, and all of the facts submitted to the commission, support the conclusion that there was a domestically produced article which would warrant the President in issuing the proclamation. I have carefully considered not only the evidence emphasized by the commission in its report to the President, and that which is pointed out in the leading opinion, but I have considered every other phase of the testimony and I am unable to arrive at a conclusion that during the representative period, or at any time thereafter, there was such an American industry producing such a domestic article as Congress had in contemplation when section 336 was enacted. I find no substantial evidence in the record from which the commission or the President might properly conclude that there was such an article produced. It seems to me that the leading opinion suggests, if it does not definitely hold, that such an industry could not possibly have existed in the face of such devastating competition. [Italics quoted.]
The provisions of section 336 were intended to apply to an established American industry producing an article, the cost of production of which might be fairly compared with the cost of production of the foreign article. If the domestic production was sporadic and inconsequential to the extent that the production costs were so unnecessarily high as not to be fairly comparable with production costs abroad, no remedy, in my judgment, is afforded by the provision. We are here concerned with the evidence relating to the production of dried egg albumen.
As may seem from the respective dissenting opinions of Judge Bland and myself, it was our view that section 336 of the 1930 Tariff Act was enacted in the interest of actually existing domestic industries and *194that it was not contemplated by the Congress it would be invoked to build up industries when none previously existed.
The second case to reach this court was that of T. M. Duche & Sons, Inc. v. United States, 36 C. C. P. A. (Customs) 19, C. A. D. 391, decided November 2, 1948. It was virtually a retrial of the issues involved in the Moss case, supra, the record of which was included in it through another Duche case (the record of which was included), which had been tried before the Customs Court but not appealed to this court.
As pointed out in the majority opinion in the instant case, the records in the two Duche cases, supra, and that in the Moss case, supra, were made a part of the record in the instant case.
Only two of the judges (Hatfield and I) who had participated in the Moss case, supra, participated in the Duche case, supra. Judge O’Connell had succeeded Judge Lenroot and Judge Johnson had succeeded Judge Bland. The opinion was written by Judge Jackson in whose place Circuit Judge Parker acted in the Moss case, sufra.
The majority of the court overruled that portion of the decision of the majority in the Moss case, supra, which held that the courts might go behind the report of the Tariff Commission to determine whether its finding that dried egg albumen was a “domestic article,” within the purview of section 336 of the Tariff Act of 1930, was supported by any substantial evidence, and adhered to the conclusion of the majority in the Moss case, supra, on the factual issue presented, thus overruling appellant’s protest. The decision of the Supreme Court in the case of United States v. George S. Bush & Co., Inc., 310 U. S. 371, T. D. 50159, reversing a decision of this court, was held to be controlling, along with that in the case of Norwegian Nitrogen Products Co. v. United States, 288 U. S. 294, which had been cited and relied on by Government counsel in the Moss case, supra.
I did not agree that the decisions in those cases were controlling and, being still of the opinion that no dried egg albumen industry was shown to have existed in the United States during the representative period required to be considered, again expressed dissent.
I have restudied the issues, in the light of the argument presented in the instant case, but am not convinced that the position I took originally was erroneous.
In consequence, I again respectfully dissent.