19 U.S.C. 1581(c)-JUDICIAL REVIEW OF ANTIDUMPING & COUNTERVAILING DUTY DETERMINATIONS ISSUED BY THE DEPARTMENT OF COMMERCE

Georgetown Journal of International Law, Fall 2007 by Brightbill, Timothy C, Kwon, Jennifer, Fogarty, Matthew W

In Agro Dutch Industries Ltd. v. United States, the CAFC affirmed the CIT's jurisdiction over actions challenging final results of administrative reviews of AD orders in which the subject entries are unliquidated.20 Agro Dutch Industries ("Agro Dutch") commenced an action before the CIT challenging Commerce's final results in an administrative review of an AD order on preserved mushrooms from India.21 Although Agro Dutch obtained a preliminary injunction to enjoin the liquidation of the subject entries, many of the entries had been liquidated by the time the preliminary injunction went into effect.22

Subsequent to filing its motion for judgment on the agency record, Agro Dutch submitted a notice of supplemental authority to inform the CIT of two recent cases addressing whether liquidation instructions could be issued prior to the deadline to commence an action challenging the results of an administrative review.23 In response, the CIT requested that Agro Dutch advise the Court of any unliquidated entries of subject merchandise.24 Approximately a month later, and before Agro Dutch had responded to the Court's request, the CIT denied Agro Dutch's motion for judgment on the agency record and dismissed the case.25 The CIT stated that it was constrained to conclude that all subject entries had been liquidated, as Agro Dutch had not responded to the Court's request for information.26

Agro Dutch then filed a motion for reconsideration, explaining that there were several unliquidated entries and that it was still in the process of compiling an accurate list of the entries when the CIT entered its judgment.27 The Government agreed with Agro Dutch's findings, and further agreed that the case was not moot due to the existence of unliquidated subject entries.28 The CIT, however, rejected Agro Dutch's motion on the grounds that Agro Dutch had failed to respond at its "earliest convenience" to the Court's request for information, and that Agro Dutch had not satisfied the standard for granting a motion for reconsideration.29 Agro Dutch then appealed the CIT's judgment to the CAFC.

The CAFC reversed the CIT's dismissal of the action, and remanded the case for further consideration.30 As explained by the CAFC, the CIT's original order dismissing the case rested on a jurisdictional ground.31 Because all parties agreed that unliquidated entries of the subject merchandise still existed, the jurisdictional basis for the dismissal order was no longer valid.32 The CAFC also noted that the CIT had never set a deadline by which Agro Dutch was required to submit a response to the CIT's request for information.33 Finally, the CAFC disagreed with the Government's position that the CIT had correctly dismissed the case based on the merits, and that Agro Dutch had forfeited its right to address the issues on appeal to the CAFC.34 The CAFC found that the CIT had not formally ruled on the merits of the case, and remanded the case for final disposition.35

C. Value Added Tax

Commerce is authorized to calculate the foreign market value of imported goods in one of three ways: (1) by determining the price at which the merchandise is sold in its country of origin; (2) by determining the price of the merchandise in a third country; or (3) by calculating a "constructed value."36 When calculating a constructed value, Commerce must include "the cost of materials and fabrication or other processing of any kind employed in producing the merchandise, during a period which would ordinarily permit the production of the merchandise in the ordinary course of business."37 The governing statute further provides that the cost of the materials included in the calculations must be determined without regard to any internal tax imposed on the materials or their sale by the exporting country that is refunded or remitted upon the export of products made from those materials.38