US Supports Motion to Dismiss Lumber Exporter’s Second Cash Deposit Rate Challenge
In support of its motion to dismiss (see 2503170067), the U.S. said again that Canadian lumber exporter J.D. Irving’s case is “substantively the same” as a prior one dismissed for lack of subject matter jurisdiction (J.D. Irving v. United States, CIT # 22-00256).
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The Commerce Department instructed CBP in 2021 to set J.D. Irving’s cash deposit rate at 1.57% based on the results of a 2017-2018 administrative review of the antidumping duty order. But when the 2019 review’s results were released, Commerce updated its instructions, increasing J.D. Irving’s cash deposit rate to 11.59%. Because nobody had requested a review for the exporter for 2020, it missed out when the 2020 Canadian lumber review saw other lumber exporters’ AD rates drop back down to 1.57%.
J.D. Irving couldn’t challenge the 2020 review results in the Court of International Trade because it was supposed to go through USMCA -- it attempted to challenge the 2019 review’s results in its first suit, J.D. Irving I, which was dismissed. This time, the exporter argued that Commerce’s updated 2020 liquidation results had erred by failing to “reflect the correct rate for a company not subject to review,” but this was more of the same, the government said.
Specifically, the factors the U.S. Court of Appeals for the Federal Circuit considered when it affirmed the dismissal of J.D. Irving’s first case apply here, too, the government said again.
But the exporter “brushes aside” CAFC’s ruling in J.D. Irving I, instead trying to distinguish this second case by arguing that it wasn’t challenging the 2020 review results because it hadn’t been subject to those results’ rates.
“But the final results are not limited to establishing an antidumping rate and cash deposit rate,” the government said. “JDI knows as much because it raised its argument about the cash deposit rate in an AR 3 [the 2020 review] case brief even though no review of its entries was requested in AR 3.”
Also, the exporter didn’t have to be a party to the review to have been able to bring a case regarding it under Section 1581(c), the proper jurisdictional provision, the U.S. said. It only had to be an “interested party.” The exporter had admitted it was an interested party outright in its motion, the U.S. said.
And, before CAFC made its decision in J.D. Irving I, the exporter had previously stated that it was bringing this case to challenge the 2020 review, the government added.
“The Court should take JDI at its word,” it said.