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

After reviewing the statutory language, the CAFC reversed the CIT and held that Commerce was not required to include the VAT paid on input purchases in the calculations of Rima's constructed value.58 Specifically, the CAFC found that the AD statute was silent on the issue of whether Commerce must include VAT in its constructed value calculations if the VAT is neither remitted nor refunded.59 As such, the CAFC held that Commerce's policy regarding VAT was entitled to Chevron deference, and found Commerce's policy to be a reasonable interpretation of the statutory provision.60 The CAFC also found prior decisions regarding this issue, and relied upon by the CIT, to be inapposite due to the changes in Brazilian law on VAT, and the factual differences between those cases and the one at issue.61 The case was then remanded for further proceedings, and with the instruction that Commerce be permitted to recalculate Rima's constructed value using the methodology employed in its first remand results.62

D. Substantial Evidence

In Timken U.S. Carp. v. United States, the CAFC clarified what types of errors Commerce may correct prior to the issuance of its final results in administrative reviews of AD orders.63 As explained in its decision, the CAFC determined that Commerce must review allegations of errors raised by parties, without regard to whether the errors are "clerical" in nature, so long as they are raised prior to the issuance of the final results, and affirmed Commerce's authority to determine the reliability of the evidence submitted in support of the alleged errors.64 This decision could have important implications for participants in AD proceedings, as it apparently broadens the ability of parties to allege errors at later stages of proceedings, indeed at any point before Commerce's final determination.

When determining whether it may or should grant a party's request to correct errors made during an administrative review, Commerce generally applies the "Colombia Flowers Test." Under this two-part inquiry, derived from Commerce's final results in an administrative review of an AD order on fresh cut flowers from Colombia, Commerce must first determine whether the error is "clerical" in nature, rather than methodological or substantive, or an error in judgment.65 second, if the error is determined to be "clerical," then Commerce must determine whether the new evidence demonstrating the error is reliable.66

In the underlying administrative review, Timken, an importer of cylindrical roller bearings, reported that it had five channels of distribution and classified each of its home market sales under one of the five channels.67 Commerce redesignated the channels of distribution and/or grouped certain channels together, which resulted in three channels of distribution identified as home markets 1, 2, and S.68 Commerce then calculated a preliminary dumping margin of 61.60 percent.69

After reviewing the preliminary results and prior to the issuance of the final results, Timken requested that Commerce correct alleged "clerical errors" that Timken made when it "erroneously" reported some transactions in certain channels of distributions rather than in others.70 In support of this request, Timken submitted several invoices and purchaser orders for the sales that were allegedly miscategorized.71 Upon applying the Colombia Flowers Test, Commerce determined that the errors were "errors in judgment," and also found the new evidence submitted to be questionable, as Commerce was prevented from verifying the documents' reliability.72