United States v. Elof Hansson, Inc.

• Decision Date: 22 December 1960
• Docket Number: Customs Appeal No. 5032.
• Parties: UNITED STATES, Appellant, v. ELOF HANSSON, INC., Appellee.
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

48 CCPA 91, 296 F.2d 779 (1960)

UNITED STATES, Appellant, v. ELOF HANSSON, INC., Appellee.

Customs Appeal No. 5032.

United States Court of Customs and Patent Appeals.

December 22, 1960.

George Cochran Doub, Asst. Atty. Gen., Richard E. FitzGibbon, Chief, Customs Section, New York City (George S. Leonard, Alan S. Rosenthal, Trial Attys., Washington, D. C., of counsel), for United States.

Sharp & Bogan, Washington, D. C. (Alfred R. McCauley, Washington, D. C., Myron Solter, James R. Sharp, Washington, D. C., and Raoul Berger, Chicago, Ill., of counsel), for appellee.

MacLeish, Spray, Price & Underwood, Chicago, Ill. (Robert C. Keck, Chicago, Ill., of counsel), amicus curiae.

Before WORLEY, Chief Judge, RICH, MARTIN, and SMITH, Judges, and Judge William H. KIRKPATRICK.^*

SMITH, Judge.

The single judge Customs Court in Reap.Dec. 9212 sustained the determination of the Acting Secretary of the Treasury (89 Treas.Dec. 197, T.D. 53567) made pursuant to the Antidumping Act of 1921 (19 U.S.C. § 160, 19 U.S.C.A. § 160) that "the industry manufacturing hardboard¹ in the United States is likely to be injured by reason of the importation into the United States of hardboard from Sweden, and that hardboard from Sweden is being sold and is likely to be sold in the United States at less than its fair value." The judgment of the trial court was reversed by the Third Division, Appellate Term, 178 F.Supp. 922, 923 (A.R.D. 114) and the present appeal was taken.

The Appellate Term stated the primary issue to be "whether the Administrative Procedure Act (5 U.S.C.A. § 1001, June 11, 1946, ch. 324; 60 Stat. 237, as amended) applied to findings of dumping made under the Antidumping Act of 1921." The trial court held that the Administrative Procedure Act, 5 U.S.C.A. § 1001 et seq.² did not apply while the Appellate Term held that it did.

It is our opinion, however, that the stated issue is not the primary issue requiring decision. The fundamental and underlying issue as we see it is: Did appellee, having actual notice of the pendency of the investigation by the Secretary of the Treasury under the Antidumping Act of 1921, and having participated actively and without objection in the investigation preceding the finding of dumping, thereby waive its right to reply upon the asserted procedural irregularity to nullify the finding of dumping?

The facts pertinent to a determination of this issue are that the antidumping investigation, which lasted one and one-half years and culminated in the presently challenged finding of dumping, originated in a petition dated March 31, 1953, which was filed with the Secretary of the Treasury by the Hardboard Association as representative of all, but three, of the domestic manufacturers of hardboard.

Within a month after filing the petition, Mr. Geller, an Examiner of Merchandise from the office of the Appraiser of Merchandise, contacted representatives of appellee and informed them of the petition, told them that the Secretary of the Treasury was making an investigation, solicited information in the form of analytical data, and invited appellee's participation in the proceedings. Appellee participated in the proceedings and supplied data to Mr. Geller under a cover letter dated May 5, 1953.

The testimony also establishes that from April 20, 1953, and extending through the spring and summer of 1953, there were numerous conferences between a Mr. Weitzel, Assistant to the Assistant Secretary of the Treasury, and the importers of Swedish hardboard, including appellee, concerning the investigation. These conferences sometimes involved the importers and sometimes their attorneys, as well as representatives from the foreign embassies and from the domestic industry. Information was communicated both in verbal discussions and in writings. The exhibits here include a letter dated June 29, 1953, from appellee to the Commissioner of Customs, containing a request for a copy of the Hardboard Association's petition. Another letter is one dated June 30, 1953 from the attorneys for appellee requesting an opportunity to be heard and to submit evidence, should the bureau find that a "prima facie case of dumping is established." There was an extensive correspondence by appellee's attorneys directed to the Customs Bureau with respect to the investigation.

On August 21, 1953, while the investigation was pending, appellee purchased the merchandise, the appraisement of which is here in issue. On October 13, 1953, the Acting Commissioner of Customs issued a letter authorizing all appraisers to withhold appraisements of entries of Swedish hardboard, and to issue the Customs Form 6459 Notice of Withheld Appraisement.³ Copies of this notice were sent to appellee and to the collector.

On December 3, 1953, appellee's merchandise was entered, and appellee acquiesced without objection to withholding the appraisement after receipt of notice thereof on Customs Form 6459. Approximately nine months later, the investigation was completed and the Acting Secretary, on August 26, 1954, made the finding of dumping which was published in the Federal Register on September 3, 1954 (19 F.R. 5631). Shortly thereafter, on September 9, 1954, notice of appraisement was sent to appellee, who soon thereafter instituted the present action.

No notice of the investigation was published in the Federal Register. However, all of the importers of Swedish hardboard whose merchandise was either awaiting appraisement on, or was entered subsequent to, October 13, 1953, received Customs Form 6459 notices.

In addition, the testimony indicates that the importers, embassies and domestic producers received actual notice of the petition and that they actively participated in the investigation from the outset. At no time during the course of the entire investigation was any issue raised before the Secretary, either directly or through the Customs Bureau, of any procedural irregularities in the investigation based on alleged non-compliance with the A.P.A. provisions requiring the publication in the Federal Register of notice of "rule making" proceedings.

The best interests of orderly procedure require that if any right or interest of appellee were infringed or even endangered by the procedure followed in the investigation, appellee should have made timely objection thereto.

The only asserted procedural irregularity in the antidumping investigation here in issue is the failure, based on appellee's theory that the finding of dumping was "rule making," of the Secretary of the Treasury to publish notice of the proceeding in the Federal Register as required by Section 4 of the A.P.A.

These facts seem to us to bring the present case squarely within United States v. L. A. Tucker Truck Lines, 344 U.S. 33, 73 S.Ct. 67, 97 L.Ed. 54. It is our opinion that the Tucker decision clearly requires that the issue here sought to be raised should have been raised by timely objection at the administrative level. Appellee's position here is aptly characterized, in the words of the Tucker decision as being "clearly an afterthought, brought forward at the last possible moment to undo the administrative...