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Canadian Exporter Revives Dismissed Complaint Against Commerce's Cash Deposit Instructions on Appeal

The Court of International Trade should not have dismissed a case involving Commerce's cash deposit instructions to CBP after the 2019 administrative review of the antidumping duty order on softwood lumber products from Canada for lack of jurisdiction, J.D. Irving said in its May 22 brief at the U.S. Court of Appeals for the Federal Circuit (J.D. Irving Ltd. v. U.S., Fed. Cir. # 2023-1652).

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The Canadian exporter asked the court to overturn CIT Judge Timothy Reif's ruling that the lower court lacked jurisdiction to hear J.D. Irving's claim, arguing that the case challenged Commerce's "administration and enforcement” of the review, rather than the results themselves and that any other option would be inadequate to address the company's claim.

The company said that it was incorrectly assigned a dumping rate of 11.59% instead of the 1.57% rate in effect at the time of Commerce's liquidation instructions. J.D. Irving filed its suit at CIT under Section 1581(i), admitting that normally it would have sought jurisdiction under Section 1581(c), but other parties had requested an "exclusive review" of the determination under the USMCA. The government then moved to dismiss the case for lack of jurisdiction, which the court granted in January. Reif said that subject matter jurisdiction to hear plaintiff’s challenge "could have been available" under 28 U.S.C. § 1581(c), if not for the binational panel review, when he dismissed the case (see 2301250060).

J.D. Irving presented CAFC with a two-pronged argument. First, the “true nature” of the case concerns Commerce’s "implementation" of the final results of the administrative review, as opposed to the final results themselves. Second, neither the USMCA panel review nor any administrative procedure can provide the relief J.D. Irving is seeking, the company said. "Only the CIT has the injunctive power to order Commerce to reinstate J.D. Irving’s lawful AD deposit rate retroactively, and only the CIT can issue a binding ruling" to force Commerce to stop its policy for assigning AD deposit rates in the future.

The provisions stopping CIT from reviewing AD or CVD duty determinations otherwise reviewable by binational panels should not have prevented the court from ruling on Commerce's cash deposit instructions, J.D. Irving argued. Those instructions are not identified by the statute as an agency determination. Unlike similar cases, the appeal doesn't concern the final dumping dates or the imports, only the instructions which incorrectly directed CBP to assign a cash deposit rate for the wrong year, J.D. Irving argued.