US Argues Scope Ruling Application Denials Not Reviewable by CIT
The U.S. again pushed back Jan. 6 against domestic producer Deer Park Glycine’s claim that the Court of International Trade has jurisdiction over its challenge to a denied scope ruling application (see 2412050059) (Deer Park Glycine v. U.S., CIT # 24-00016).
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18 U.S.C. 1581(c) doesn’t cover the case because Deer Park “does not challenge a determination as to whether a product is within the scope of an antidumping or countervailing duty order, but rather a determination not to initiate a scope inquiry in the first place,” the government said.
And 18 U.S.C. 1581(i) doesn’t apply, the government said, because other remedies available to Deer Park aren’t manifestly inadequate.
Deer Park initially sought, and received, a scope ruling on a competitor’s imported calcium glycinate in August 2023. After the Commerce Department found the products weren’t covered by antidumping and countervailing duty orders, it filed a second request in November 2023 that included additional evidence. The department rejected that second request, calling it “duplicative.” At the trade court, Deer Park claimed this foreclosed it from being able to “cure the deficiency identified by Commerce” by resubmitting the scope ruling request (see 2407240017).
The U.S. again challenged the jurisdictional basis for the case in its Jan. 6 filing.
The department’s decision wasn’t reviewable by the trade court under section 1581(c) because that law only covers challenges to a finding by Commerce “as to whether a particular type of merchandise is within the class or kind of merchandise described in an existing finding of dumping or antidumping or countervailing duty order,” it said. And the only decision Commerce made in rejecting Deer Park’s second scope ruling application was “whether it was appropriate to initiate a second scope inquiry immediately after conducting a scope inquiry, particularly when the application was made by the same party,” it said.
Deer Park was trying to outflank the law’s plain language by claiming that Commerce’s rejection of its scope ruling request was only possible because the department had already reached a determination in the previous ruling; but the producer “does not explain how this is relevant,” the government said.
It denied that Commerce’s rejection of the second scope ruling request was an “implied” assertion of the finding it reached in its initial ruling.
The government also argued 18 U.S.C. 1581(i) didn’t cover the litigation because “Deer Park has had a full opportunity to present its scope application to Commerce and challenge an unfavorable result” during the original scope ruling’s process. It said that “parties do not have unlimited opportunities to make their case,” and failing to do so administratively simply means “they may miss their chance.”