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importing products from various countries throughout the world, including many members importing Japanese consumer electronic products.

On April 12, 1977, the United States Customs Court determined that the exemption from taxes of certain electronic products when exported from Japan granted by the Commodity Tax Law of Japan constitutes the payment or bestowal of a bounty or grant within the ambit of Section 303 of the Tariff Act of 1930, as amended (19 U.S.C. § 1303). It ordered customs officers throughout the United States to immediately assess countervailing duties on such products upon their importation into the United States.

Amici, and others like them, are the importers of these products. They are the parties which will be required to pay the substantial duties which will be imposed if the Customs Court decision is upheld. Such duties will increase the cost of these products to the importers and ultimately to the consumers. The competitive disadvantage to Amici, if duties ranging from 5 to 40% are added to the cost of goods sold, is selfevident.

Of all the interests which will be affected by the outcome of this litigation, only those of the importers have been unrepresented. The American manufacturers of comparable products have been ably and vigorously represented by the Zenith Radio Corporation (hereinafter "Zenith"). The interests of public and foreign policy are represented by the United States. However, the parties who must pay the duties and whose sales of products have been and will be directly influenced by this litigation have been denied an opportunity to be heard. There is no one presently before this

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Court who has any interest in pointing out that the procedure which brings this dispute to this Court is constitutionally defective. Only Amici can effectively do so.

Summary of Argument.

Under either 19 U.S.C. § 1516(c) or (d), as amended by the Trade Act of 1974, an American manufacturer may contest a decision of the Secretary of the Treasury not to impose countervailing duties (a decision which is commonly referred to as a "negative determination"). In § 1516(c) proceedings, the American manufacturer is the plaintiff, the United States is the defendant, and the importer of the goods in question participates as the real party in interest (19 U.S.C. § 1516(f)). In § 1516(d) proceedings (such as in the present case), the American manufacturer is the plaintiff, and the United States is the defendant, but importers of the goods subject to countervailing duties are not parties. Under § 1516(d), importers who may be subjected to countervailing duties are not allowed to participate in the judicial process which bears directly upon their interests.

Section 1516(d) violates the guarantees of procedural due process accorded by the Fifth Amendment to the Constitution of the United States because Amici and all those similarly situated are deprived of notice of or any meaningful opportunity to be heard in this judicial proceeding brought by one of their competitors, Zenith, against the Secretary of the Treasury, which proceeding directly affects their interests by exposing their goods to the imposition of countervailing duties. Section 1516(d) also violates the equal protection guarantees of the Constitution. Access to the courts is

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a fundamental constitutional right. There is no compelling interest nor any rational reason justifying the exclusion of Amici from § 1516(d) proceedings. Allowing one interest access to the courts while denying access in the same proceedings to all interests who wish to assert contrary positions and who are even more directly affected by the outcome of the dispute is an unconstitutional violation of equal protection.

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ARGUMENT.

A. Importers of Goods Subject to the Imposition of Countervailing Duties Are Denied Due Process Because They Cannot Participate in Proceedings Pursuant to 19 U.S.C. § 1516(d).

An appreciation of the procedures whereby countervailing duty determinations are made and challenged is fundamental to an analysis of the constitutional issues raised by Amici. Section 1303 of Title 19, United States Code, sets forth the circumstances pursuant to which countervailing duties are to be imposed and provides an administrative procedure which allows any person an opportunity to seek to assert administratively the position that the imposition of such duties are required in particular circumstances. If imposed, the countervailing duties may be challenged by an importer only after liquidation of its entries of the affected imported merchandise. If not imposed, an American manufacturer may challenge the negative determination pursuant to the procedures set out in 19 U.S.C. § 1516 (c) or (d).

Section 1516(c) establishes a procedure which involves the importer, the American manufacturer and the United States. The refusal by the Secretary of the Treasury to impose countervailing duties on specific imported merchandise provides the focus for the litigation. Section 1516(d), on the other hand, allows an American manufacturer to initiate a general challenge of a negative determination by the Secretary of the Treasury without regard to any specific shipment, in litigation which does not contemplate participation by importers. If the decision in litigation brought under § 1516(d) is adverse to importers, their goods imported subsequent to the effective date of the Customs Court

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decision will be subjected to countervailing duties. When the duty assessment process is completed and the entries of such goods are liquidated (finalized by the United States Customs Service), the importers are then permitted to challenge the imposition of countervailing duties on specific goods in specific shipments by protests under 19 U.S.C. §1514. Only after the protests have been denied under 19 U.S.C. §1515 may litigation be initiated in the United States Customs Court under 28 U.S.C. § 1582(a) and (c), long after there has been a judicial decision upon the legality of the imposition of the countervailing duties.

The instant litigation is a classic example of the workings of Section 1516(d). The American manufacturer, Zenith, has been able to prosecute this action solely against the government, unhindered by the opposition of the importers upon whose goods the duties are to be imposed. If this Court decides that countervailing duties should be imposed in this case, the very importers who must pay the duties will not have an opportunity to challenge the impost until after their entries are liquidated. At that time, they will be in the untenable position of presenting to the Customs Court issues which the United States Supreme Court has already resolved.

The Fifth Amendment to the Constitution of the United States prohibits the government from depriving any person of "life, liberty, or property without due process of law." Amici's imports are, of course, property for Fifth Amendment purposes because Amici are entitled to the ownership and control of such goods under state law (Board of Regents v. Roth (1972), 408 U.S. 564, 571, 33 L.Ed.2d 548, 557). In addition,