Importer Says CIT 'Must Have' Jurisdiction Over Denied Changed Circumstances Review Requests
Responding to a U.S. motion to dismiss (see 2502050050), importer Houston Shutters said March 31 the trade court “must" possess jurisdiction over its challenge to the Commerce Department’s refusal to conduct a changed circumstances review under 1581(i) if it doesn’t under 1581(c) (Houston Shutters v. United States, CIT # 24-00175).
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It alleges that Commerce should have opened a changed circumstances review to let Houston Shutters seek an exclusion for wood shutter components from antidumping and countervailing duty orders on wood moulding and millwork products from China. An exporter had actually requested the exclusion during the original AD/CVD investigation, but failed to follow up with information to support it.
Although it cited both jurisdictional provisions, the importer noted in its complaint that it was “contemporaneously herewith filing a separate appeal challenging Commerce’s Determination Not to Initiate a CCR under 28 U.S.C. § 1581(i), and is out of an abundance of caution maintaining this appeal under 28 U.S.C. § 1581(c).” The U.S. has also sought to have that other complaint dismissed for lack of jurisdiction (see 2502050050, 2501220090 and 2503130054).
But, in its March 31 reply, Houston Shutters seemed to agree that CIT lacked jurisdiction under 1581(c).
“Plaintiff submits that this Court must have jurisdiction to consider its challenge to Commerce’s unwillingness to initiate a CCR, and the lack of jurisdiction under 28 U.S.C. § 1581(c) provides all the more reason to find jurisdiction under 28 U.S.C. § 1581(i) -- ‘a Congressional fail-safe device’ and a ‘catch all provision,’” it said.
It said it “does not know why Congress elected” to only explicitly grant the trade court jurisdictions over denied changed circumstance review requests when the determination is made by the International Trade Commission. Neither legislative history nor the Uruguay Round Agreements Acts’ Statement of Administrative Action support an interpretation that this “divergent treatment” was deliberate, it claimed.
The department has allowed changed circumstances reviews “to write new scope exclusions” in other instances, it argued. For example, it said, Commerce in 2024 excluded importer Lutron Electronics’ solar panels from AD/CVD orders on Chinese-origin solar cells.
“Commerce readily initiated the CCR, and did not fault Lutron for failing to have requested this an exclusion during the underlying investigations as Defendant does for Plaintiff’s request to exclude wood shutter components,” it said. “Defendant, in blaming Plaintiff, emphasizes that the AD/CVD investigations set an early scope comment period. Yet because all AD/CVD investigations have such an early comment period, Defendant’s logic would make CCRs unavailable to consider scope exclusions not initially raised.”