USMCA Panel Can't Give Proper Relief in Challenge to AD Cash Deposit Rate, Importer Says
The Court of International Trade should disregard DOJ's motion to dismiss Canadian exporter J.D. Irving's challenge to antidumping duty cash deposit instructions since an already initiated USMCA panel would not be able to apply the proper remedy, the exporter said in a March 14 reply brief. Though the USMCA panel is reviewing the same legal issue raised at CIT, the relief available differs in that the USMCA panels do not have the power to issue an injunction, J.D. Irving said (J.D. Irving Limited v. United States, CIT #21-00641).
Sign up for a free preview to unlock the rest of this article
Timely, relevant coverage of court proceedings and agency rulings involving tariffs, classification, valuation, origin and antidumping and countervailing duties. Each day, Trade Law Daily subscribers receive a daily headline email, in-depth PDF edition and access to all relevant documents via our trade law source document library and website.
The case concerns the customs instructions that followed the final results of the 2019 administrative review of the antidumping duty order on softwood lumber products from Canada. Neither J.D. Irving nor any U.S. lumber producer requested a review of the exporter for the 2020 period of review, yet Commerce replaced J.D. Irving's 2020 AD cash deposit rate with an AD rate for the 2019 period. J.D. Irving filed suit at CIT, arguing that the lack of a request for the 2020 review signaled that both sides agreed that the cash deposit rate in effect was an accurate measure of J.D. Irving's dumping level (see 2201050029).
DOJ then moved to dismiss the case for lack of subject-matter jurisdiction since relief can be provided through a current USMCA binational panel (see 2203070023). J.D. Irving filed its case under CIT's Section 1581(i) "residual" jurisdiction, which can only be claimed if all other 1581 sections are "manifestly inadequate." DOJ said that 1581(c) jurisdiction is available before the USMCA panel, and that panel can review the results of the second administrative review -- where J.D. Irving was assigned the 11.59% rate it now contests -- thus, any relief provided by the panel will not be manifestly inadequate.
J.D. Irving countered by arguing that DOJ is wrong to say that J.D. Irving can get relief simply because it can raise the same legal issue before the USMCA panel. Any relief from this panel would be "manifestly inadequate" as the panel doesn't have injunctive powers, opening up jurisdiction under Section 1581(i), the importer argued. DOJ also raised a "false alarm" when arguing that the USMCA's dispute settlement provisions would be nullified.
"This is an inaccurate characterization of J.D. Irving’s appeal," the brief said. "Plaintiff’s claim before this Court will not nullify USMCA dispute resolution of the 2019 Review Final Results. ... In that proceeding, parties raise issues concerning Commerce’s calculations of the final dumping margins assigned to the mandatory respondents, which, in turn, affect the final dumping margin assigned to Non-Selected Companies subject to the review. ... Before this Court, in contrast, J.D. Irving raises a discrete legal issue that is unrelated to Commerce’s calculations of final deposit and assessment rates in the 2019 AD Review."
The plaintiff also argued that DOJ ignored court precedent over whether CIT lacks authority to provide requested relief and that the U.S. mischaracterized the relief the importer seeks. DOJ said that J.D. Irving wants relief before the court before it decides the case on the merits. However, J.D. Irving only wants injunctive relief and not any sort of final relief before the court's judgment, the brief said.