Al Tech Specialty Steel Corp. v. U.S., 84-774

• Decision Date: 03 October 1984
• Docket Number: No. 84-774,84-774
• Citation: 745 F.2d 632
• Parties: , 3 Fed. Cir. (T) 1 AL TECH SPECIALTY STEEL CORP., et al., Appellees, v. The UNITED STATES, Appellant. Appeal
• Court: U.S. Court of Appeals — Federal Circuit

Page 632

745 F.2d 632

6 ITRD 1161, 3 Fed. Cir. (T) 1

AL TECH SPECIALTY STEEL CORP., et al., Appellees, v. The UNITED STATES, Appellant.

Appeal No. 84-774.

United States Court of Appeals, Federal Circuit.

Oct. 3, 1984.

Velta A. Melnbrencis, of Washington, D.C., argued for appellant. With her on the brief were Richard K. Willard, Acting Asst. Atty. Gen. and David M. Cohen, Director, Washington, D.C.

Paul C. Rosenthal, Washington, D.C., argued for appellees. With him on the brief was David A. Hartquist, Washington, D.C., of Counsel.

Before DAVIS, SMITH and NEWMAN, Circuit Judges.

DAVIS, Circuit Judge.

This is an appeal by the United States from a decision of the United States Court of International Trade (CIT) ¹ holding that the International Trade Administration (ITA or agency) of the Department of Commerce (Commerce) is required under section 776 of the Tariff Act of 1930, as amended, 19 U.S.C. Sec. 1677e(a) ² to verify information submitted to it by a foreign manufacturer during a periodic review of an outstanding antidumping duty order. ³ We affirm.

I

On August 28, 1973, the Assistant Secretary of the Treasury published a finding of dumping with regard to stainless steel wire rods from France. ⁴ 38 Fed.Reg. 22961 (1973). These rods thus became subject to the imposition of an antidumping duty in an amount equal to the difference between the foreign market value and the purchase price for such rods, pursuant to the Antidumping Act of 1921, as amended, 19 U.S.C. Sec. 160(a).

The Antidumping Act of 1921 was subsequently replaced, effective January 1, 1980, by a new antidumping law enacted as part of Title VII of the Tariff Act of 1930, as amended. Title I of the Trade Agreements Act of 1979, Pub.L. 96-39, 93 Stat. 144, 146-193. Section 106 of the new Act provided that "findings in effect on the effective date of this Act ... shall remain in effect, subject to review under [the new] section 751 of the Tariff Act of 1930" (providing for periodic reviews). 93 Stat. 193. In addition, the responsibility for administering the antidumping law and acting as the "administering authority" under section 751 (codified at 19 U.S.C. Sec. 1675) was transferred from the Treasury Department to the Secretary of Commerce, effective January 2, 1980. At Commerce, the antidumping law's administration was delegated to the ITA.

Final results of the ITA's first administrative periodic review under section 751(a), 19 U.S.C. Sec. 1675(a), with regard to stainless steel wire rods from France, were published on November 9, 1981, covering January 1974 through June 1980. The final results of this review were not challenged in court, although the domestic manufacturers apparently did raise in a prehearing brief the question now before us.

Notice of the preliminary results of the second section 751 periodic review with regard to the rods was published on August 23, 1982 for the period July 1, 1980 through June 30, 1981. 46 Fed.Reg. 55297 (1982). The dispute leading to this appeal began during the administrative review proceeding when the appellees, domestic manufacturers of stainless steel wire rods, contended that the ITA was required under 19 U.S.C. Sec. 1677e(a), supra note 2, to verify the information supplied to it during the review by Ugine Glaciers, the foreign manufacturer, and Intsel Corporation, the domestic importer. Counsel for both Ugine Glaciers and Intsel represented that his clients were available for verification. Notice of the final results of this second administrative review were published on January 21, 1983, 48 Fed.Reg. 2808 (1983); in that notice the ITA responded as follows to appellees' contention concerning verification: "Department Position: In Section 751 administrative reviews verification by the Department is discretionary.... [Citation omitted.] We have determined that verification was not required for this review." 48 Fed.Reg. at 2808-2809 (1983).

The domestic manufacturers appealed to the CIT the ITA's refusal to verify, raising three grounds, only two of which now remain in contention (see note 1, supra ): (1) the statute requires verification in all section 751 reviews, and (2) even if verification in section 751 reviews is discretionary, refusal to verify in this case (in which at least eight years had passed since the last verification) was an abuse of discretion. On cross-motions for judgment upon the administrative record, Judge Maletz of the CIT held, as a matter of law, that the ITA is required by statute under section 1677e(a), supra, to verify information upon which assessment of antidumping duties is based (including periodic reassessments), and remanded the case for such verification.

II

19 U.S.C. Sec. 1677e(a), supra, states (with an exception not relevant here) that "the administering authority shall verify all information relied upon in making a final determination in an investigation." ⁵ Appellant contends that the CIT erred in holding that this provision requires such verification in section 751 periodic reviews of outstanding antidumping or countervailing duty orders under 19 U.S.C. Sec. 1675(a). It maintains that "a final determination in an investigation" occurs only in what appellant calls "the investigative phase" of an administrative antidumping or countervailing duty "proceeding," not in "the assessment phase" of a proceeding in which section 751 periodic reviews occur. Under this theory, the only required verification is in the investigative phase, and any other verification is discretionary with the administering authority. More particularly, appellant maintains that the CIT (1) misconstrued the statutory language; (2) ignored some parts and misconstrued other parts of the legislative history; and (3) failed to follow the principle that, in the absence of statutorily imposed procedures, courts should defer to the judgment of administrative agencies in deciding how best to carry out their duties. In addition, appellant argues that the ITA committed no abuse of its discretion in this case. Because we agree with the CIT that the statute, informed and supported by the legislative history and purpose, requires verification in periodic reviews, we do not reach appellant's arguments concerning the deference to be given agencies in the absence of statutory requirements, or the issue of abuse of discretion.

III

We start with a summary of the statutory requirements for antidumping duty cases under the Trade Agreements Act of 1979. As noted above, the 1979 Act added Title VII to the Tariff Act of 1970, as amended. Title VII contains new antidumping and countervailing duty provisions (sections 701-778 of the Tariff Act of 1930, codified at 19 U.S.C. Secs. 1671-1677g), including a new section 751, 19 U.S.C. Sec. 1675. Section 751 or section 1675 ⁶ requires annual reviews of outstanding antidumping and countervailing duty findings.

Because this case involves the assessment of antidumping duties, we focus on the statutory requirements as they pertain to those duties. However, the review provisions at issue apply to administrative reviews of countervailing duty orders as well as antidumping duty orders. It is understood by all parties, as it was by the CIT, that a holding requiring verification in periodic reviews will cover both kinds of cases. ⁷

Both parties to this action agree that antidumping inquiries, in those cases in which duties are actually assessed, are composed of two phases: (1) an initial investigatory phase, the less-than-fair-value phase in which it is decided whether impermissible dumping occurred, and (2) the assessment phase, in which sales at less than foreign market value are actually assessed special antidumping duties. A less-than-fair-value investigation may be commenced either by the filing of a petition by an interested party on behalf of the domestic industry that alleges injury because of less-than-fair-value sales, or on the initiative of the ITA, the administering authority. 19 U.S.C. Secs. 1673a(a), 1673a(b). The authority must then, within strict time limits (usually within 160 days of the petition's filing), make a preliminary determination concerning less-than-fair-value sales. If the determination is affirmative, liquidation of entries of the imports will be suspended, beginning with the date of publication of the preliminary determination in the Federal Register. (The statute also outlines circumstances in which suspension of liquidation could be made retroactive for 90 days. See 19 U.S.C. Sec. 1673b(e) ). In addition to liquidation of entries, an affirmative preliminary determination requires importers to post a cash deposit, bond or other security equal to the estimated amount by which the foreign market value exceeds the United States price. 19 U.S.C. Sec. 1673b(d)(2).

The ITA must then (within 75 days of the preliminary determination, in the normal case) make a final determination of whether imports are being sold at less than fair value. 19 U.S.C. Sec. 1673d(a)(1). In this case the Government contends that the verification requirement, supra, which states that "the administering authority [ITA] shall verify all information relied upon in making a final determination in an investigation", 19 U.S.C. Sec. 1677e(a), refers only to the making of this final determination just described, and not to any of the later determinations in which the actual amounts of duty--rather than estimates--are assessed.

The procedure for actual assessment of duties is as follows: If the ITA's determination is affirmative, and a final injury determination is made by the United States International Trade Commission (Commission), the ITA must issue an antidumping duty order. 19 U.S.C. Sec. 1673d(c)(2). Specifically, within seven days after being notified by the Commission of its injury determination the ITA publishes an antidumping duty order which: (1) includes a description of the class or kind of merchandise to which it applies, (2) requires the deposit of...