Alsthom Atlantique v. U.S.

• Decision Date: 24 March 1986
• Docket Number: 85-2158,Nos. 85-2082,s. 85-2082
• Citation: 787 F.2d 565
• Parties: , 4 Fed. Cir. (T) 71 ALSTHOM ATLANTIQUE and Cogenel, Inc., Appellees, v. The UNITED STATES, Appellant/Cross-Appellee, and Westinghouse Electric Corporation, Appellant. Appeal
• Court: U.S. Court of Appeals — Federal Circuit

Page 565

787 F.2d 565

7 ITRD 2071, 4 Fed. Cir. (T) 71

ALSTHOM ATLANTIQUE and Cogenel, Inc., Appellees, v. The UNITED STATES, Appellant/Cross-Appellee and Westinghouse Electric Corporation, Appellant.

Appeal Nos. 85-2082, 85-2158.

United States Court of Appeals Federal Circuit.

March 24, 1986.

A. David Lafer, Commercial Litigation Branch, Dept. of Justice, Washington, D.C., argued for appellant/cross-appellee U.S. With him on brief were Richard K. Willard, Acting Asst. Atty. Gen., David M. Cohen, Director and Velta A. Melnbrences, Asst. Director.

Richard O. Cunningham, Steptoe & Johnson, Washington, D.C., argued for appellant Westinghouse. With him on brief were W. George Grandison, Kevin J. Brosch and Barbara A. Pollack.

Joseph F. Donohue, Sr., Donohue & Donohue, New York City, argued, for appellees.

Before MARKEY, Chief Judge, RICH and SMITH, Circuit Judges.

EDWARD S. SMITH, Circuit Judge.

In this antidumping case, appellants, the United States and Westinghouse Electric Corporation, appeal from a Court of International Trade decision remanding an administrative determination by the International Trade Administration, Department of Commerce (ITA), and holding that the ITA, during its review pursuant to section 751 of the Trade Agreements Act of 1979, could change the scope of an antidumping finding made by the Department of the Treasury (Treasury). We reverse.

I. Issues

The principal question before this court is whether the lower court erred, as a matter of law, in not dismissing as untimely, the challenge of appellees Alsthom Atlantique and Cogenel, Inc. (Alsthom) to Treasury's antidumping determination with respect to large power transformers from France. We also address whether the lower court erred in holding that the ITA has the authority, during the course of a section 751 review, to change the scope of an underlying antidumping determination made by Treasury.

II. Background

The lengthy chronology of events leading up to the current dispute began on March 11, 1970, when a petition was filed with the Treasury by Westinghouse Electric Corporation, requesting Treasury to initiate an antidumping investigation of large power transformers from France. The Westinghouse petition indicated a possibility that large power transformers from France were being, or were likely to be, sold at less than fair value within the meaning of the Antidumping Act of 1921, as amended. ¹ On June 17, 1970, an Antidumping Proceeding Notice issued by Treasury was published in the Federal Register announcing its plans to institute an inquiry to verify the information submitted by Westinghouse and to obtain the facts necessary to reach a determination as to the fact or likelihood of sales at less than fair value. ² Treasury proceeded to conduct its inquiry, which included an investigation of Alsthom Savoisienne the corporate predecessor of Alsthom Atlantique.

On June 11, 1971, Treasury, in response to questions concerning the scope of its antidumping investigation, issued instructions indicating that the Antidumping Proceeding Notice with respect to large power transformers from France was being amended to clarify Treasury's intent in the original notice. ³ These instructions stated that the Antidumping Proceeding Notice applied to "all types of transformers rated 10,000 KVA or above, * * * including but not limited to shunt reactors." Treasury's notice explicitly indicated that Treasury was investigating, and that its findings would apply to, all types of large power transformers including shunt reactors.

On October 21, 1971, Treasury published a "Withholding of Appraisement Notice" with regard to large power transformers from France. ⁴ This notice announced Treasury's determination that there were "reasonable grounds to believe or suspect that the purchase price * * * of large power transformers from France is less, or likely to be less, than the foreign market value." The notice further indicated that Treasury was directing Customs officers to withhold appraisement of large power transformers from France. On April 25, 1972, the United States Tariff Commission published its determination that an industry in the United States was being injured by less than fair value imports of large power transformers from France. ⁵ On June 14, 1972, Treasury published its finding of dumping with regard to large power transformers from France. ⁶ No further administrative action was taken with respect to large power transformers from France until after January 1, 1980.

The Trade Agreements Act of 1979 transferred the responsibility from the Customs Service to the ITA for determining the applicable antidumping duties. ⁷ The act also amended the Tariff Act of 1930 to provide for the annual review of "the amount of any antidumping duty." Pursuant to this authority, the ITA on March 28, 1980, published in the Federal Register a notice that it was conducting administrative review of 83 outstanding determinations of dumping. ⁸ On April 9, 1980, after the ITA announced its intent to conduct an administrative review and prior to its preliminary results of the review, Cogenel, Inc., Alsthom's subsidiary and United States importer of large power transformers from France produced by Alsthom, requested that the ITA "modify" the Treasury's antidumping finding by removing Alsthom Unelic (corporate successor to Alsthom Savoisienne, corporate predecessor to Alsthom Atlantique) from the finding on the basis of "changed circumstances" pursuant to 19 C.F.R. Secs. 353.53-.54. ⁹

On June 25, 1981, the ITA published a notice of "Preliminary Results of Administrative Review of Antidumping Finding" with regard to large power transformers from France. ¹⁰ Due to Alsthom's failure to provide specific information regarding the merchandise sold in its home market, the ITA preliminarily determined to postpone appraisement of entries and to establish a cash deposit rate based upon the best information available.

Following publication of the notice of the preliminary results of ITA's section 751 review, Alsthom requested a hearing to discuss whether shunt reactors were within the "class or kind of foreign merchandise" covered by Treasury's original antidumping order on large power transformers from France. The hearing was held on July 30, 1981. At the hearing, Alsthom asserted that shunt reactors were not subject to Treasury's antidumping order since there was never a valid finding that shunt reactors had been imported, had been sold at less than fair value, or had injured or threatened to injure an industry in the United States.

On March 10, 1982, the ITA published its notice of "Final Results of Administrative Review of Antidumping Finding" with regard to large power transformers from France. ¹¹ The ITA determined that shunt reactors were clearly included in Treasury's antidumping finding, using the same language set forth by Treasury in the original Antidumping Proceeding Notice of June 11, 1971. The ITA held that the scope of the antidumping finding could not be changed during a section 751 administrative review since it was clear that shunt reactors were included in the subject class or kind of merchandise, large power transformers, throughout the administrative proceeding. The ITA further ruled that not all elements of a class or kind of merchandise must be exported to the United States during the period of investigation in order for such elements to be within the scope of an antidumping finding order and that not all elements must be sold at less than fair value.

Alsthom brought action in the Court of International Trade pursuant to 19 U.S.C. Sec. 1516a(a)(2) and 28 U.S.C. Sec. 1581(c) challenging ITA's section 751 final results of administrative review with respect to large power transformers from France. The lower court, relying on its decision in Diversified Products Corp. v. United States, ¹² declared the action timely, accepting Alsthom's assertion that it was contesting ITA's section 751 review of Treasury's antidumping determination of large power transformers from France, and not the underlying Treasury determination itself. The lower court issued a memorandum opinion and order remanding the case to the ITA because, in the view of the lower court, the ITA had erred in its conclusion that it had no authority, in the context of a section 751 review, to alter the scope of the antidumping finding established by Treasury. ¹³ For the reasons set out below, we hold that the lower court erred both (1) in not dismissing Alsthom's appeal as untimely and (2) in determining that the ITA has authority, during a section 751 review, to alter the scope of an antidumping determination established by Treasury.

III. Analysis

A. Timeliness of Appeal.

Judicial review of countervailing and antidumping duty determinations is governed by the Transitional Rules, section 1002(b)(3) of title X of the Trade Agreements Act of 1979.

(3) CERTAIN COUNTERVAILING AND ANTIDUMPING DUTY ASSESSMENTS.--The amendments made by this title shall apply with respect to the review of the assessment of, or failure to assess, any countervailing duty or antidumping duty on entries subject to a countervailing duty order or antidumping finding if the assessment is made after the effective date. If no assessment of such duty had been made before the effective date that could serve the party seeking review as the basis of a review of the underlying determination, made by the Secretary of the Treasury or the International Trade Commission before the effective date, on which such order, finding, or lack thereof is based, then the underlying determination shall be subject to review in accordance with the law in effect on the day before the effective date.

The Transitional Rules, in effect, set out guidelines indicating to the complainant the proper procedure he should follow in obtaining judicial review of an antidumping or countervailing duty determination.

Under the Transitional Rules, ...