There can be no doubt that this phraseology, viewed in its customary and ordinary usage, is intended as the exercise of the power of termination.

The statutes are brief and concise in delineating this prerogative. Section 350 (a) (6) of the Tariff Act of 1930, as amended (19 U.S.C. 1351 (a) (6)) provides:

The President may at any time terminate, in whole or in part, any proclamation made pursuant to this section.

Similarly, section 255 (b) of the Trade Expansion Act of 1962 (19 U.S.C. 1885 (b)) provides:

The President may at any time terminate, in whole or in part, any proclamation made under this subchapter.

Against this background, the question is whether the President, in the assessment of the supplemental duty provided for in Presidential Proclamation 4074, acted beyond the authority so delegated to him by the Congress.

Viewing this Proclamation in the light of the statutory authority delegated by the Congress, it would appear that it is hybrid in character. Although an effort is made to "terminate" and "suspend" prior proclamations in the same breath, presumably in the hope that some justifying authority might be thereby synthesized, there can be little doubt that the basic authority and justification for the President's action therein was predicated on the termination powers conferred by section 350(a)(6) of the Tariff Act and section 255 (b) of the Trade Expansion Act.3

We conclude that the authority granted by statute to "terminate, in whole or in part, any proclamation" does not include the power to determine and fix unilaterally a rate of duty which has not been previously legally established. On the contrary, the "termination" authority, as statutorily granted, merely provides the President with a mechanical procedure of supplanting or replacing existing rates with rates which have been established by prior proclamations or by statute. Relevant thereto is United States v. American Bitumuls & Asphalt Co., 44 CCPA 199, C.A.D. 661, 246 F.2d 270 (1957), cert. denied, 355 U.S. 883 (1957). In that case, the collector of customs, pursuant to Presidential Proclamation 2901, assessed a duty of 12 cent a gallon on imported petroleum products, which proclamation the importer claimed to be invalid in that it increased the rate of duty in excess of the amount of 50 percent as provided by section 350(a)(2) of the

3 Thus, the General Counsel of the Treasury in his opinion with respect to the legal basis for the imposition of the surcharge predicated the action of the President in making this assessment on the termination authority. Op. General Counsel (Treas. Dept.) No. 822, Sept. 21, 1971.

Tariff Act of 1930, as amended (19 U.S.C. 1351(a) (2)). In determining such a 50 percent increase limitation not to be applicable to proclamations terminating other proclamations, our appellate court stated (44 CCPA, p. 205, 246 F.2d, p. 275):

There is a logical reason for placing a limitation on the tariff changes which may be effected by proclamations giving effect or carrying-out trade agreements but not on those which merely terminate other proclamations, since the latter can do no more than restore rates which have already been legally established, and are thus inherently limited. [Emphasis in original.] *

General headnote 4(d) of the tariff schedules codifies this principle and provides clear legislative direction with respect to the effect resulting from the termination of a proclamation:

[W]henever a proclaimed rate is terminated or suspended, the rate shall revert, unless otherwise provided, to the next intervening proclaimed rate previously superseded but not terminated or, if none, to the statutory rate.

This headnote is clarified by the following statement in the Tariff Classification Study Submitting Report (Nov. 15, 1960), p. 17:

Headnote 4 relates to the effect, in each of the two numbered rate columns of the tariff schedules, of changes in rates of duty by legislative enactment and by proclamation of the President pursuant to delegated authority under the trade-agreements legislation and section 336 of the Tariff Act of 1930 (the so-called flexible-tariff provision). This headnote explicitly expresses the difference in legal effect between statutory (amended) rates of duty and proclaimed (modified) rates of duty. A permanent statutory amendment of a rate of duty supersedes and terminates the existing rate, whereas a proclaimed (modified) rate supersedes but does not terminate the existing rate of duty. For example, if an original statutory rate of 30 percent ad valorem applicable to an article is "modified" to 40 percent by proclamation issued pursuant to section 336 and thereafter is modified to 20 percent by proclamation under the trade-agreements legislation, the original rate of 30 percent was superseded but not terminated by the 40-percent rate and the 40-percent rate was superseded but not terminated by the 20-percent rate. The "modified" rate of 40 percent proclaimed pursuant to section 336 would be reflected in both rate columns, whereas the "modified" rate of 20 percent proclaimed pursuant to section 350 would be reflected only in column numbered 1. On the other hand, if the Congress should enact permanent legislation changing the 20-percent rate to 15 percent, such amendment would terminate and supersede the previous rates of duty in both rate columns unless otherwise specified in the amending statute.

See also United States v. Metropolitan Petroleum Corp., 42 CCPA 38, C.A.D. 567 (1954); Barclay & Company, Inc. v. United States, 47 CCPA 133, C.A.D. 745 (1960).

570-865-75—2

General headnote 4(d) treats with the situation where a proclaimed rate is terminated or suspended. If in the example previously given, the 20-percent rate proclaimed pursuant to the trade-agreements authority were terminated or suspended, the new rate would become 40 percent since this is the next intervening proclaimed rate previously superseded but not terminated. If the 40-percent rate should thereafter be terminated or suspended the rate would revert to the statutory rate of 30 percent. [Emphasis added.]

Defendant contends, however, that the phrase in general headnote 4(d) "unless otherwise provided" indicates recognition of a discretionary authority to establish a new intermediate rate in conjunction with the statutory authority to "terminate *** in part." We cannot agree.

In our view that phrase is nothing more than an exception to the provision contained in headnote 4 (d) fixing the order of rate reversion resulting from a termination proclamation. More specifically, the phrase "unless otherwise provided" gives the President discretionary authority when terminating a proclamation to specify a rate established in a specific previous proclamation other than the next intervening proclamation and thus avoid an automatic reversion to the next intervening proclaimed rate. In other words, the phrase "unless otherwise provided" contemplates only the exercise of Presidential discretion to preclude the order of reversion set forth in general headnote 4(d).

This court likewise is unable to accept the further argument propounded by the defendant-that the maxim of statutory construction providing that a broader authority includes the lesser-is applicable to the case at bar. In reference thereto, the defendant suggests that if the President has the power to terminate all prior proclamations, thus bringing into effect the statutory rate, a fortiori, he has the power to impose a new rate, higher than the terminated rate, yet lower than the statutory rate. Such a conclusion is fallacious. The power granted to the President with respect to the adjustment of rates pursuant to his termination authority is limited to the use of termination proclamations (1) to increase rates to the highest level, i.e., the statutory rate, or (2) to raise or lower rates to conform to rates which have been established by a prior proclamation. In either of these instances, the rates, to which conformance may be sought, have been previously established either by the Congress (statutory rate) or by a bilateral negotiation embodied in a trade agreement pursuant to statutory authority. In short, the power to fix a new and independent rate requires a greater grant of power than that delegated to the President by the termination authority. Pursuant to the latter authority, the President is constrained, with the exception noted above,

"resting" only on those rates previously established. Indeed, should the establishment of new and independent rates be considered a lesser power included in the termination authority, all concession rates previously established through bilateral negotiation could be totally ignored thereby giving the President complete and broad discretion to impose any rate whatsoever up to the statutory rate. We fail to find wherein the statutes evidence an intention on the part of the Congress to grant the President such unrestrained unilateral authority.

Nor can we accept the construction urged by the defendant that the phrase "terminate *** in part" as distinguished from "terminate in whole" authorizes the establishment of new intermediate rates. It is manifest that the phrase "terminate * * * in part" can be given no other meaning than that which the individual words signify. Thus, the word "terminate" signifies "the act of ending something, implying a final and conclusive act, a complete cessation of effect ***." Falcon Sales Company v. United States, 47 Cust. Ct. 129, 135, C.D. 2292, 199 F. Supp. 97, 102 (1961). Its meaning is not interchangeable with the word "suspend" which "signifies the act of stopping for a time, implying a temporary inoperative condition." Ibid. In light of these considerations, no rationalization will permit an implication to be derived from the phrase "terminate *** in part" that existing proclaimed rates can be suspended and temporarily supplanted by new rates determined solely by the President. The discretionary authority contained in the provision "terminate, in whole or in part" is twofold: (1) to nullify and bring to an end an entire proclamation; and (2) to specify the extent to which a prior proclamation is terminated, thereby permitting a portion thereof to remain in effect."

The legislative history likewise indicates that the authority delegated to the President "to terminate, in whole or in part, any proclamation" was not intended by the Congress to grant him the power to determine and fix unilaterally an intermediate rate of duty which had not been previously legally established. It is to be noted in this connection that the Administration's draft bill for the Trade Expansion Act of 1962-H.R. 9900-contained a proposed section 244(b) to give the President the authority to establish such new intermediate rates as an incident to the power to terminate in part. See Hearings before the House Committee on Ways and Means on H.R. 9900— Trade Expansion Act of 1962 (87th Cong., 2d Sess., 1962, p. 17) here

5 See Presidential Proclamation 3762, 81 Stat. 1076 (1967), by the terms of which Presidential Proclamation 3455 was terminated in whole and Presidential Proclamation 3458 was terminated to the extent that it modified Presidential Proclamation 3455.

after referred to as "House Hearings"). The proposed section 244 (b) provided (House Hearings, p. 17):

(b) The President may at any time terminate, in whole or in part, any proclamation issued under this title. Termination in part of a proclamation reducing a rate of duty may include the proclamation, as required or appropriate to carry out any trade agreement under this title or any predecessor Act, of a rate of duty higher than such reduced rate but not higher than the rate which would have been applicable if the proclamation had been terminated in whole.

An accompanying section-by-section analysis of H.R. 9900 prepared by the executive branch contains the following statement with respect to proposed section 244 (b) (House Hearings, p. 37):

The first sentence of subsection (b) is substantially identical to section 350 (a) (6) of the Tariff Act of 1930, as amended, and provides that the President may at any time terminate, in whole or in part, any proclamation issued under title II. The second sentence is a new technical provision which permits the President, when terminating in part a proclamation reducing a rate of duty, to establish a new rate of duty at any point in the range above the reduced rate but no higher than the rate which would have been applicable if the proclamation had been terminated in whole. Such authority would be of use in negotiations under article XXVIII of the General Agreement on Tariffs and Trade (hereinafter referred to as GATT) where it is occasionally desirable to agree to make increases in rates of duty.

In addition, a memorandum prepared by the Tariff Commission for the Ways and Means Committee comments on proposed section 244 (b), as follows (House Hearings, pp. 951-2):

3. Termination of Proclamations.-Section 244 (b) of the bill provides that the President may at any time terminate, in whole or in part, any proclamation issued under Title II of the bill; i.e., proclamations prescribing continuance, reduction, or elimination of duties or other import restrictions, or continuance of existing duty-free or excise treatment, required or appropriate to carry out a trade agreement negotiated under the proposed authority, and proclamations prescribing treatment to "adjust" imports to protect the national security. This section further provides that termination in part of a proclamation reducing a rate of duty may include_

the proclamation, as required or appropriate to carry out any trade agreement under this title [i.e., Title II of the bill] or any predecessor Act, of a rate of duty higher than such reduced rate but not higher than the rate which would have been applicable if the proclamation had been terminated in whole.

The provision regarding partial termination of a proclamation issued under title II raises several questions. This authority