Importer Defends 1581(i) Jurisdiction in Suit on Decision Not to Open Changed Circumstances Review
Importer Houston Shutters defended its Section 1581(i) case at the Court of International Trade against the Commerce Department's failure to open a changed circumstances review of antidumping and countervailing duty determinations on wood moldings and millwork products from China. Filing a reply brief on March 12, Houston Shutters said jurisdiction doesn't require it to challenge Commerce's investigations, adding that Commerce itself uses the reviews to consider information that wasn't present during the investigation (Houston Shutters v. U.S., CIT # 24-00193).
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During the investigations, exporter Lanzhou Xinyoulian Industrial Co. requested that Commerce exclude wood shutter components from the scope of the orders. The agency asked for information regarding the goods, which Lanzhou failed to submit, leading Commerce to include the components under the orders' scope.
Houston Shutters then filed a changed circumstances review request looking to exclude the same goods from the orders, submitting the information Commerce previously requested from Lanzhou. The agency denied the request, prompting the present Section 1581(i) action and a dismissal bid from the government (see 2501220090). The U.S. said the true nature of the action is a challenge to a scope determination, which is properly filed under Section 1581(c).
In response, Houston Shutters said it's an "incorrect non-sequitur" for the U.S. to claim that the importer had the ability to take part in the investigation as an "interested party." Houston Shutters "asserting standing as an interested party to the [changed circumstances review] proceeding" doesn't necessarily mean it had standing to take part in the investigations. To have standing, it was required to have imported goods during the investigation period but also "to have provided evidence thereof to Commerce during the investigations."
Assuming it was able to take part in the investigations, Houston Shutters said CIT still has jurisdiction since the "true nature of the action" is "seeking a retroactive exclusion for wood shutter components to be added to the existing AD/CVD Order." Looking to eliminate AD/CVD on goods that have already entered the U.S. is "fundamentally distinct from seeking to prevent AD/CVD from applying in the first instance."
Appealing a scope determination "would not accomplish what Plaintiff is seeking to obtain in the [review] proceeding, namely elimination of AD/CVD on entered merchandise through consideration of new information provided from the intervening years," the brief said.
Houston Shutters added that Commerce itself uses changed circumstances reviews to consider new information that wasn't provided during the underlying proceeding. The importer cited a 2021 circumvention inquiry, which found that oil country tubular goods from Brunei and the Philippines were circumventing the AD/CVD orders on the same products from China. Despite finding that OCTG made or completed in Brunei or the Philippines using non-Chinese inputs isn't subject to the proceedings, Commerce said the a group of companies referred to as the "HLD companies" are circumventing, since they are "unable to track welded OCTG to the country of origin of inputs used in the production of welded OCTG."
The HLD companies submitted review requests, claiming they could identify and segregate OCTG made with non-Chinese hot-rolled steel. "Commerce did not fault the HLD companies for 'simply attempting to submit argumentation and evidence it could have, but did not provide, during the {circumvention inquiry} and calling that information ''changed circumstances,''" the brief said.
"Just like Lanzhou was requested to provide wood shutter component information in the underlying investigations but did not do so, the HLD companies were requested to demonstrate their ability to segregate Chinese inputs in the underlying inquiry but did not do so," the brief said. The treatment of the HLD companies shows that "information requested but not provided in the underlying proceeding is in fact properly presented as a changed circumstance," Houston Shutters argued.