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

As to the first criterion, the Court notes that, in a typical AD case, a respondent would generally have an adequate remedy given that an erroneous cash deposit rate would be corrected at the time of liquidation. 106 As the Court writes:

[U]nder this regime, theoretically, an importer should be no more disinclined to import goods into the United States under the threat that an appeal (or administrative review) will reinstate a prior cash deposit rate than it would if it were required to pay the original, albeit erroneous, cash deposit.107

However, the Court concluded that Decca's argument was valid. The 198.08 percent rate was prohibitive, and served as an effective bar against Decca's U.S. operations. "[G]iven the complexity of U.S. trade laws," noted the Court, "an importer's creditors may not understand the risks involved in providing credit and, consequently, may decline to provide credit where it is otherwise efficient to so provide;" in the alternative, a creditor may simply charge an interest rate far in excess of the interest the importer would receive upon correction of the cash deposit rate.108 Accordingly, without relief, Decca would be harmed by the unlawful rate during the pendency of the appeal.

With respect to whether Commerce was under a duty to correct its instruction, the Court observed that, according to NTN Bearing,109 Commerce could not order an adjustment to the deposit rate until the issuance of a "final court decision."110 While Commerce argued that the language from NTN Beanng implicated the pending CAFC appeal, Decca contended that "final court decision" referred to a judgment issued by the CIT.111 Distinguishing NTNBearingon the grounds that it involved a motion for partial summary judgment, the Court held that Decca's construction was more correct.112

Thus, the CAFC noted that while "the law does not limit Commerce's clear duty to comply with a judgment of the [CIT]," at issue is whether the law imposes a duty on Commerce.113 Turning to a separate CAFC case,114 the Court determined that the CIT decision triggered Commerce's duty under the statute to amend the cash deposit rate and its accompanying instructions to Customs.115 Finding that the Court's equitable jurisdiction was not precluded by statute and was thus available, the Court granted Decca's motion for mandamus.116

F. Zeroing

On appeal from Commerce's determination in the thirteenth administrative review of Antifriction Bearings and Parts Thereof from France, Germany, Italy, Japan, Singapore, and the United Kingdom, the CIT affirmed Commerce's practice of zeroing in Paul M�ller Industrie GMBH & Co. v. United States.117 Paul M�ller Industrie and several other respondents (collectively, "Respondents") challenged Commerce's use of zeroing in the calculation of the Respondents' dumping margins. In particular, Respondents each argued that "Commerce's practice of assigning a zero margin to export price ... or constructed export price ... sales made above normal value ... is a violation of U.S. antidumping law and WTO dispute settlement decisions."118 In a brief opinion, the Court conducted a relatively straightforward Chevron analysis, ultimately deciding that Commerce's practice of zeroing is supported by substantial evidence and is in accordance with the law.119