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

On appeal, the CIT rejected the rigid application of the Colombia Flowers Test, although it agreed that Timken's error was not "clerical" in nature.73 Based on its concern that the application of the Colombia Flowers Test would result in an inaccurate dumping margin, and the uncertainty regarding whether the new evidence would conflict with information already on the administrative record, the CIT remanded the case for further investigation.74

Although it noted its disagreement with the CIT's application of the Colombia Flowers Test's first inquiry, Commerce reviewed the new evidence on remand pursuant to the CIT's direction.75 Commerce determined that no corrections were warranted because new evidence failed to substantiate Timken's claim of the alleged error, and the reclassification of the sales in question would not result in a more accurate dumping margin.76 The CIT sustained these remand results, finding that Commerce had satisfied its obligation to review the evidence and provided a reasonable explanation for its decision.77

On appeal, the CAFC affirmed the CIT's rejection of Commerce's rigid application of the Colombia Flowers Test, and held that the CIT correctly remanded the case for further review.78 According to the CAFC, the Government's reliance on a prior decision by the CAFC and Commerce's final results in Certain Fresh Cut Flowers from Colombia was misplaced.79 Clarifying its reasoning in an earlier case, Alloy Piping Products, Inc. v. Kamen Tetsu Sdn. Bhd., the CAFC explained that the decision turned on when (that is, at what point during the administrative review) the party sought to correct errors, not the type or nature of error that the party was attempting to correct80 The CAFC, noting that it is not bound by an agency's decision, also emphasized its disagreement with the rigidity of the Colombia Flowers Test and Commerce's reliance upon NTNBearing Corp. v. United States to derive the "clerical" error requirement81

The CAFC next addressed the issue of whether the new evidence submitted by Timken was sufficient to require correction of the alleged error.82 After reviewing the record, the CAFC concluded that Timken had failed to provide sufficient evidence or explanation supporting its claim, and that Commerce's original decision was supported by substantial evidence.83

E. AFA Rate

In one of the most interesting cases of 2006, Decca Hospitality Furnishings v. United States,84 the CIT issued mandamus relief requiring Commerce to reissue its cash deposit instructions where the original instructions were unlawful and the respondent would otherwise be unable to obtain credit to post the cash deposit. Originating from Commerce's determination in Wooden Bedroom Furniture from the People's Republic of China,85 Chinese respondent Decca Hospitality Furnishings brought the action in an attempt to receive a separate cash deposit rate, rather than the "PRC-wide" rate assigned by Commerce.

In December 2003, Commerce initiated its investigation into Wooden Bedroom Furniture from the PRC.86 Over the course of the investigation, Commerce rejected as untimely evidence submitted by Decca that purported to establish that Decca is not state-controlled and is thus entided to a separate rate.87 By virtue of Commerce having rejected the evidence, Decca was assigned the PRC-wide rate of 198.08 percent.88