Royal Business Machines, Inc. v. United States

• Citation: 669 F.2d 692
• Decision Date: 21 January 1982
• Docket Number: Appeal No. 81-12.
• Parties: ROYAL BUSINESS MACHINES, INC., Appellant, v. The UNITED STATES; Philip M. Klutznick, Secretary of Commerce; Robert E. Herzstein, Under Secretary of Commerce for International Trade, Department of Commerce; Robert E. Chasen, Commissioner of Customs; and John E. Brady, District Director of Customs, Los Angeles, California, Appellees. Smith-Corona Group, Consumer Products Division, SMC Corporation, Intervenor.
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

669 F.2d 692

ROYAL BUSINESS MACHINES, INC., Appellant, v. The UNITED STATES; Philip M. Klutznick, Secretary of Commerce; Robert E. Herzstein, Under Secretary of Commerce for International Trade, Department of Commerce; Robert E. Chasen, Commissioner of Customs; and John E. Brady, District Director of Customs, Los Angeles, California, Appellees Smith-Corona Group, Consumer Products Division, SMC Corporation, Intervenor.

Appeal No. 81-12.

United States Court of Customs and Patent Appeals.

January 21, 1982.

Michael S. O'Rourke, Patrick D. Gill, New York City, for appellant.

Stuart E. Schiffer, Acting Asst. Atty. Gen., David M. Cohen, Washington, D. C., Director, Velta A. Melnbrencis, New York City, for appellees.

Eugene L. Stewart, Terence P. Stewart, Washington, D. C., Edwin Silverstone, New York City, for intervenor.

Before MARKEY, Chief Judge, RICH, BALDWIN, MILLER and NIES, Judges.

MILLER, Judge.

This appeal is from a judgment of the United States Court of International Trade, 1 CIT ___, 507 F.Supp. 1007 (1980), dismissing appellant's action for a writ of mandamus to compel the Customs Service to liquidate certain entries without imposition of antidumping duties. The basis for the action was that the imported merchandise was not within the scope of the antidumping duty order that described the merchandise as portable electric typewriters provided for under item 676.0510, Tariff Schedules of the United States Annotated ("TSUSA"). The Court of International Trade held that, although appellant based its action on 28 U.S.C. § 1581(i), the proper basis was 19 U.S.C. § 1516a (which is within the jurisdiction of the Court of International Trade under 28 U.S.C. § 1581(c)) and, as a consequence, the court was without jurisdiction to hear this case because appellant failed to commence its action within the thirty-day period prescribed by 19 U.S.C. § 1516a. We affirm.

BACKGROUND

The involved merchandise consists of typewriters imported into this country under the name "ROYAL ADMINISTRATOR" ("Administrator"). The Administrator is manufactured in Japan by Silver Seiko Co., Ltd. ("Seiko") and imported by the Royal Typewriter Company, a division of appellant. On April 9, 1979, the Smith-Corona Group, Consumer Products Division, SCM Corporation ("SCM"),¹ filed a petition with the Commissioner of Customs seeking initiation of an antidumping investigation concerning specified electric typewriters from Japan expressly including Seiko's Administrator. In addition, SCM indicated that these typewriters were classified under item 676.0510, TSUSA,² and that "Royal Typewriter, Hartford" was an importer of the subject merchandise.

Notice of initiation of an antidumping investigation pursuant to SCM's petition was published in the Federal Register on May 18, 1979,³ and stated:

... On April 9, 1979, a petition in proper form was received ... from SCM, alleging that portable electric typewriters from Japan are being, or are likely to be, sold at less than fair value within the meaning of the Antidumping Act, 1921, as amended (19 U.S.C. § 160 et seq.).

For purpose of this notice, portable electric typewriters are provided for in item 676.0510, Tariff Schedules of the United States Annotated.

Although reference to the Administrator was not made in the notice, in response to an antidumping questionnaire for manufacturers, Seiko stated that —

eleven different portable electric typewriter models are included in the merchandise under consideration, as indicated below: —

....

10. ADMINISTRATOR.

On December 28, 1979, the General Counsel of the Treasury Department issued a "Withholding of Appraisement Notice" and a tentative determination of sales at less than fair value under 19 U.S.C. § 160, which has to do with dumping investigations. The notice became effective and was published in the Federal Register on January 4, 1980.⁴ It directed customs officers to "withhold appraisement of portable electric typewriters from Japan in accordance with 19 CFR 153.48."⁵ Seiko was named one of three Japanese manufacturers under investigation, and portable electric typewriters were defined as those provided for in item 676.0510, TSUSA.⁶

The new antidumping provisions of the Trade Agreements Act of 1979 (19 U.S.C. § 1671 et seq.) became effective on January 1, 1980; responsibility for their administration was transferred to the Secretary of Commerce.⁷ By letter dated January 4, 1980, the Director, Office of Policy, Office of the Assistant Secretary for Trade Administration, Department of Commerce, referred the antidumping investigation to the ITC for an injury determination. Notification of institution of antidumping investigation and scheduling of hearings was published by the ITC on January 17, 1980.⁸ Included was a final hearing date for "Portable electric typewriters, provided for in TSUS item 676.05/Japan," which was set for April 10, 1980. The notification concluded as follows:

A report containing preliminary findings of fact prepared by the Commission's professional staff will be made available to all interested persons prior to the hearing. Any person's prehearing statement must be filed on or before the indicated date. All parties that desire to appear at the hearing and make oral presentations must file prehearing statements....

On March 11, 1980, counsel for appellant submitted a letter requesting permission to appear at the final hearing stating:

Royal Business Machines, Inc., is an importer and distributor of various types of office business machines including portable electric typewriters which have been manufactured by Silver Seiko Co., Ltd. These machines are of the type subject to the determination dated January 4, 1980, by the Treasury Department, that certain portable electric typewriters are being, or likely to be, sold at less than fair value. Accordingly, Royal Business Machines, Inc., has a proper interest in the subject matter within the meaning of the Regulations and requests to participate in the investigation and hearing before the Commission.

We request a copy of the Commission Staff Report so that we may submit a timely pre-hearing statement prior to the tentative hearing date of April 10, 1980. Emphasis supplied.

Notice of the Commerce Department's final determination of sales at less than fair value within the meaning of section 731 of the Tariff Act of 1930, as amended by the Trade Agreements Act of 1979⁹ (19 U.S.C. § 1673) was published in the Federal Register on March 21, 1980.¹⁰ For purposes of this notice, the typewriters were described in the same way as in the notice of initiation of the investigation, i.e., as those falling within item 676.0510, TSUSA; Seiko was expressly named and discussed as a manufacturer of merchandise under investigation and within the scope of the determination.

In its prehearing statement filed April 8, 1980, appellant, for the first time, argued that the Administrator was not within ITC's definition of a portable electric typewriter because of its physical characteristics; that "it has been erroneously included by SCM in its complaint and subsequent correspondence ..."; and that, alternatively, it was not a cause of material injury to SCM. SCM, in its initial petition, prehearing statement, posthearing submission, and other miscellaneous correspondence continuously included the Administrator within the listing of specific merchandise identified as having been sold contrary to the provisions of the antidumping laws.

During the final injury determination hearing before ITC on April 10, 1980, the following colloquy was recorded between Vice Chairman Alberger ("Chairman") and appellant's counsel ("Counsel"):

Chairman: ... Is the tariff classification for the Royal Administrator a portable typewriter or a non-portable?

Counsel: ... The tariff classification is 67605, it is the five-digit number. There are four additional two-digit statistical break-outs. Unfortunately, and I have discussed this directly with the National Advisory Imports specialist who is responsible for typewriters, there is no — within the five-digit classification — there is no room to differentiate between an office typewriter and a portable, because their differentiation is the break-out when the machine has what they call "automatic features", which would be something like a mag card system.

....

So within the five-digit category there is no differentiation. I would submit that we would be properly classifiable under 6760540, which is electric typewriters, other, because there is a break-out for portable typewriters statistically.

Chairman: But since it's not coming in anymore, it's not something that you are contesting; is that right?

Counsel: Yes, and I might add that, of course there are some entries that have been — that were subsequent to the Notice of Suspension and Liquidation, so there are unliquidated entries.

But I would add, parenthetically, that as the Commission knows, there is no duty on electric — portable electric typewriters. And, candidly, from a business standpoint, the statistics, whether it's 0510 or 0540 are meaningless, as far as a business person is concerned.

I realize that maybe as far as the Department of Commerce, they would like to see more concern about things like this.

But from a businessman's standpoint, when you are not paying any duty, they just don't — it's not a real concern to break the statistics out.

ITC made a unanimous, affirmative determination "that an industry in the United States is materially injured by reason of imports of portable electric typewriters provided for in item 676.05 of the TSUS from Japan,"¹¹ and on May 1, 1980, notified the Secretary of Commerce. In its "Statement of Reasons," when discussing the domestic industry and comparing the imported products, ITC in a footnote stated:

The Royal "Administrator" typewriter for customs purposes is classified as a portable electric typewriter under item 676.05 of the Tariff Schedules of the United

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