Pritchard v. United States

CONCURRING OPINION

Foed, Judge:

I concur with my colleagues in the decision and judgment rendered herein except with respect to the limitation of authority of the President to “accept or reject” the findings of the Tariff Commission.

The President, in the matter now pending before the court, accepted the findings but did not accept in toto the recommendations of the Tariff Commission, which were as follows:

Findings of the Commission

On the basis of its investigation, including the hearing, the Tariff Commission finds as follows:
(1) As a result in part of the duties reflecting concessions granted thereon in the General Agreement on Tariffs and Trade, bicycles provided for in paragraph 371 of the Tariff Act of 1930, and described in item 371 (First) in Part I of Geneva-Schedule XX annexed to the General Agreement, are being imported into the United States in such increased quantities, both actual and relative, as to cause serious injury to the domestic industry producing like or directly competitive products.
*123(2) The application, for an indefinite period, of the following rates of duty to imports of such bicycles, is necessary to remedy the serious injury to the domestic industry producing like or directly competitive products: Bicycles with or without tires, having wheels in diameter (measured to the outer circumference of the tire): Over 25 inches, a rate of $3.75 each, but not less than 22¡4 percent nor more than 30 percent ad valorem; over 19 but not over 25 inches, a rate of $3 each, but not less than 22% percent nor more than 30 percent ad valorem; not over 19 inches, a rate of $1.87j4 each, but not less than 22% percent nor more than 30 percent ad valorem. (Pages 4-5 of ex. 3 — United States Tariff Commission, Bicycles, Report to the President on Escape-Clause Investigation No. 37, Under the Provisions of Section 7 of the Trade Agreements Extension Act of 1951, 'Washington, March 1955.)

On August 18, 1955, coincident with the issuance oí his proclamation, the President set forth his reasons for the modification in a letter addressed to the chairman of the Committee on Finance of the United States Senate and the Committee on Ways and Means of the House of Representatives, pursuant to section 7 of the Trade Agreements Extension Act of 1951, as amended, 19 U. S. C. A. section 1364 (c). In doing so, the President presented his reasons for the modification, pertinent parts of which are as follows:

In “escape clause” cases such as this, several issues of a fundamental kind are involved.
There is the question of injury and relief to a domestic industry within the meaning of the law.
There is the question of our national security interest in the economic strength of valued allies in the free world.
There is the question of building export markets for the products of our farms, factories and mines.
There is the question of compensation under our trade agreement commitments to nations affected by the withdrawal of certain tariff concessions previously granted by us.
There is the question of protecting the American consumer against unnecessary and unjustified price increases.
The Tariff Commission has the responsibility with respect to the first of these questions: to investigate and report to the President any finding of serious injury or threat of serious injury within the meaning of the law.
The President has the responsibility of considering, not only the question of injury to a domestic industry and measures recommended for its relief, but also the other fundamental questions bearing on the security and well-being of 165,000,000 Americans. The President’s final judgment in each case must represent the best composite evaluation he can make of these questions.
In analyzing this case I have considered not only the Tariff Commission's two reports, but also the opinions of interested Departments and Agencies of the Executive Branch and other relevant and available information. Although the facts in this case do not all point in the same direction, as is evidenced by the lack of unanimity among the Tariff Commissioners who participated, the conclusion seems to me clear that, under the law which I am charged to uphold— in this instance Section 7 of the Trade Agreements Extension Act — the conditions for relief there established have been met.
*124The Tariff Commission majority recommended that the minimum ad valorem duty be increased to 22)4% on all imported bicycles. This would mean an increase from 15% to 22)4% on all types except the large wheel lightweight (wheel diameter over 25 inches, net weight less than 36 pounds) where the minimum duty would triple — from the present 7)4 % to the proposed 22)4 % rate.
I concur with the Commission majority’s recommendation of a 22)4% minimum rate of all types of bicycles other than the large wheel lightweights. It is my conclusion that the minimum rate for the latter category should be increased proportionately from 7)4% to 11)4%, instead of to 22)4%.
As for the other varieties of imports — the balloon tire, middleweight and junior size types, for example — I have not disturbed the Tariff Commission majority’s recommendation for an increase in the minimum duty to 22)4%. It is in these areas that the American industry has specialized and developed the market. Here the competition from imports is direct and thus most prone to cause serious injury. Recently increasing imports of these kinds of bicycles bear witness to this fact.

A cardinal rule of statutory construction is that the entire text of a statute must be considered and effect given to all the language contained therein. Nestle’s Food Co. (Inc.) v. United States, 16 Ct. Cust. Appls. 451, T. D. 43199; Cassard Romano Co., David A. Haagens v. United States, 19 C. C. P. A. (Customs) 191, T. D. 45294.

To ascertain the meaning of one provision, reference is also made to other provisions of the same law for indications as to the sense in which particular terms were used by Congress when the law was enacted. United States v. Conkey & Co. et al., 3 Ct. Cust. Appls. 245, T. D. 32564; Kenyon Co. v. United States, 4 Ct. Cust. Appls. 344, T. D. 33529; United States v. A. W. Faber, Inc., 16 Ct. Cust. Appls. 467, T. D. 43211.

Utilizing these basic principles of statutory construction in the case at bar, we must consider the language employed by Congress in originally granting to the President the power to negotiate tariff agreements with foreign countries as indicative of its intent with respect to the present provision. This grant of power was originally vested in the President by virtue of the Trade Agreement Act, approved June 12, 1934 (T. D. 47117, 19 U. S. C. A. § 1351) and modified from time to time. This section, as modified in 1955, contains the following pertinent language:

§ 1351. Foreign trade agreements — -Authority of President; modification and decrease of duties; applicability
(a) (1) For the purpose of expanding foreign markets for the products of the United States (as a means of assisting in establishing and maintaining a better relationship among various branches of American agriculture, industry, mining, and commerce) by regulating the admission of foreign goods into the United States in accordance with the characteristics and needs of various branches of American production so that foreign markets will be made available to those branches of American production which require and are capable of developing such outlets by affording corresponding market opportunities for foreign products *125in the United States, the President, whenever he finds as a fact that any existing duties or other import restrictions of the United States or any foreign country are unduly burdening and restricting the foreign trade of the United States and that the purpose above declared will be promoted by the means hereinafter specified, is authorized from time to time—
(A) To enter into foreign trade agreements with foreign governments or instrumentalities thereof: Provided, That the enactment of the Trade Agreements Extension Act of 1955 shall not be construed to determine or indicate the approval or disapproval by the Congress of the executive agreement known as the General Agreement on Tariffs and Trade.
(B) To proclaim such modifications of existing duties and other import restrictions, or such additional import restrictions, or such continuance, and for such minimum periods, of existing customs or excise treatment of any article covered by foreign trade agreements, as are required or appropriate to carry out any foreign trade agreement that the President has entered into hereunder.
(2) No proclamation pursuant to paragraph (1) (B) of this subsection shall be made—
(A) Increasing by more than 50 per centum any rate of duty existing on January 1, 1945.
(5) The President may at any time terminate, in whole or in part, any proclamation made pursuant to this section.

At the same time as the above modification was enacted, the escape clause provision, originally enacted by the Act of June 16, 1951, 19 U. S. C. A. section 1364, was modified and contains the following pertinent language:

(a) Upon the request of the President, upon resolution of either House of Congress, upon resolution of either the Committee on Finance of the Senate or the Committee on Ways and Means of the House of Representatives, upon its own motion, or upon application of any interested party, the United States Tariff Commission shall promptly make an investigation and make a report thereon not later than nine months after the application is made to determine whether any product upon which a concession has been granted under a trade agreement is, as a result, in whole or in part, of the duty or other customs treatment reflecting such concession, being imported into the United States in such increased quantities, either actual or relative, as to cause or threaten serious injury to the domestic industry producing like or directly competitive products.
(c) Upon receipt of the Tariff Commission’s report of its investigation and hearings, the President may make such adjustments in the rates of duty, impose such quotas, or make such other modifications as are found and reported by the Commission to be necessary to prevent or remedy serious injury to the respective domestic industry. If the President does not take such action within sixty days he shall immediately submit a report to the Committee on Ways and Means of the House and to the Committee on Finance of the Senate stating why he has not made such adjustments or modifications, or imposed such quotas.

A consideration of the language in section (c), supra, makes it evident that the authority granted to the President was discretionary. The President may accept or reject the report and recommendations *126of tbe Tariff Commission or “make such other modifications as are found and reported by the Commission to be necessary to prevent or remedy serious injury to the respective domestic industry.” Since the President was given authority to adjust rates and impose quotas, the portion of the sentence above quoted, as construed by the majority opinion, results in the employment by Congress of useless language. It is a basic principle of law, which needs no citation, that Congress is presumed not to have done a useless act. However, under the construction given in the majority opinion, such a result is apparent. Since the President may adjust rates or impose quotas, what else in the way of modifications may the President impose?

A reasonable construction of the language employed in section 1364 (c), supra, results in permitting the President to accept or reject in full the recommendations of the Commission or make such other modification (in conformity with the findings of the Commission). By virtue of such a construction, the President may accept the findings of the Commission with respect to injury but reject or modify the recommendations because of other considerations or factors. The President, in the instant case, did, in his letter to the Chairman of the Senate and House Committees, set forth in a clear and concise manner the reasons for his modification of the recommendations of the Commission.

In addition to utilizing all the language employed in a particular section of a statute to determine the intent of Congress, it is also incumbent upon the court to consider statutes in pari materia. In the construction of any section relating to trade agreements, we must ascertain the intent of Congress in enacting section 1351, as modified, supra. Subsection (a) (1), supra, sets forth the various reasons that Congress had in mind when granting power to enter into foreign trade agreements, i. e., expansion of foreign markets for products of the United States, removal of restrictions which are unduly burdening, etc. Certain limitations were also imposed upon the President, under subsection (2), supra, with respect to his authority to negotiate with foreign Governments or instrumentalities. However, in subsection (d) (5), the President was granted the right to terminate in whole or in part any of the proclamations made pursuant to this section. The provisions of this section, supra, and section 1364, supra, the escape clause, are in pari materia and must be construed together. Such a construction is indicative that the power granted to the President is discretionary and not one which binds the President to accept or reject in full the report or recommendations of the Tariff Commission.

It is my firm belief that Congress did not intend to tie the hands of the President when it granted to him this broad power. This belief *127appears to be affirmed when the legislative history of the escape clause provision is considered.

The report of the Committee on Ways and Means under the caption, “Continuation of Existing Safeguards,” as it appears in the United States Code Congressional and Administrative News, 1955, page 2074, indicates the intent of Congress in granting to the President a discretionary power by the following:

The committee believes that the President should give full consideration to the Tariff Commission’s findings regarding injury. If he believes that these findings should be further developed, or if new information relevant to such findings are disclosed; in the committee’s opinion he should continue his practice of submitting such data to the Tariff Commission for supplemental investigation and findings where appropriate. The other factors, relating to the overall national interest, are, of course, outside the jurisdiction of the Tariff Commission, and must be weighed by the President after receiving the views of the various departments. The committee is of the opinion that a President, who has the authority to determine where and when American Armed Forces may be employed in the Formosa Straits in the interest of our national security, can be trusted to weigh factors relating to the national interest in terms of withdrawing a tariff concession.
Even on the question of injury, the President must by law make the determination in the event of a 3-3 split among the Tariff Commissioners.
Findings on the question whether injury is caused or threatened by imports resulting from tariff concessions are based on factual material. However, proper weight must be given to such facts, reasonable inferences drawn therefrom, and, finally, there must be an exercise of judgment. Different weight can be given to the same facts, different inferences can be drawn from the same facts, and different judgments can result. Otherwise all administrative or judicial judgments would be unanimous and be affirmed on appeal. In practically every field where administrative or judicial findings are involved, the Congress has provided for some review of those findings, either by courts or by the President. In the committee’s opinion it would be undesirable to depart from this practice in the case of the escape clause. Your committee believes that the President should not be compelled as a matter of law to accept findings of the Tariff Commission where it is his opinion that they are not soundly based, although in the committee’s opinion he should give full consideration and proper weight to such findings.

It is a well-settled, and long-established principle oí law that a committee report submitted in connection with proposed customs legislation, which is subsequently enacted, is evidence of the intent of Congress in enacting the provision. Thos. H. Taylor and McDonald Brothers v. United States, T. D. 18915 (1898); United States v. Sickel, 6 Ct. Cust. Appls. 146, T. D. 35394; Kraft Phenix Cheese Corp. v. United States, 22 C. C. P. A. (Customs) 111, T. D. 47103.

In the report of the Committee on Ways and Means, supra, it is clearly evident that the President has the power to exercise judgment in drawing inferences and in giving proper weight to the facts found by the Commission. The committee further recognizes that different weight can be given to the same facts, different inferences can be drawn, and different judgments can result.

*128The letter of August 18, 1955, sufra, sets forth the reasons why-different weight and different inferences were drawn by the President which resulted in a different judgment.

In view of the report of the Committee on Ways and Means, as well as a consideration of the language employed in section 1351, supra, and the principles of law governing statutory construction, I am unable to concur with the reasoning of my colleagues that the President must accept or reject the recommendations of the Tariff Commission. As to the conclusion and reasoning on other points considered by the court, I concur.