Mattress Importer Says Questionnaire Response Enough to Establish Standing
A U.S. mattress importer on Nov. 12 opposed the government’s motion to dismiss its challenge to the International Trade Commission’s critical circumstances determination on mattresses from Burma, saying that its questionnaire response in the ITC’s investigation was enough to give it standing at the Court of International Trade (Pay Less Here v. U.S., CIT # 24-00152).
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The importer, Pay Less Here, filed its suit after the ITC’s affirmative critical circumstances determination led the Commerce Department to apply retroactive antidumping duties on Burmese mattress imports (see 2409120057). Critical circumstances reviews require “a very high standard” of evidence that the commission failed to meet, it said in its complaint, arguing that Burmese mattress imports couldn’t reasonably “seriously undermine” the antidumping order due to the mattresses’ limited shelf life and the imports’ timing.
In response, the U.S. sought to dismiss the case because the importer hadn’t filed an entry of appearance at the commission for the administrative proceeding, even though Commerce and the ITC filed notices in the Federal Register of both the department’s preliminary determination and the commission’s investigation (see 2409250024).
But while Pay Less Here didn’t file an entry of appearance, it still participated in the ITC’s investigation by submitting questionnaire responses that contained data crucial to the proceeding, the importer said. Despite what the government claimed, it argued, that was enough under the governing statute to meet the low bar” required to establish standing in challenges against ITC determinations.
The government was wrong that entry of appearance filings are procedurally required to create standing, Pay Less Here said. Rather, it said, the U.S. Court of Appeals has defined the term “party to the proceeding” as an entity that has “reasonably conveyed [its] separate status” and “put the agency ‘on notice’” of its concerns.
It argued it has done both. First, it said, it has “reasonably conveyed” to the U.S. that it is a “separate entity” through its questionnaire response. And, second, it “implicitly indicated its interests for reduced duty rates for the subject merchandise that is itself important” by submitting that response, it claimed.
That has been enough in previous cases, such as Laclede Steel Co. v. U.S., it said. In Laclede, for example, CAFC held that foreign manufacturers had standing to challenge an antidumping duty determination even though they hadn’t participated in the investigation because they had “submitted factual data on exports to assist Commerce in the selection of mandatory respondents.” The court held that sufficient to convey the “intervenors’ interests in the investigation,” the importer explained.
And it wasn’t raising any new issues -- the ITC had already considered all the issues from both sides “in detail” in the investigation’s final report, it said.
Pay Less Here also argued that requiring an entry of appearance would go against the intent of Congress to allow U.S. importers greater access to the Court of International Trade for cases involving sntidumping duties.