US Says No 1581(c) Jurisdiction Over Unpublished Decision Not to Start CCR on AD/CVD Orders
The U.S. moved to dismiss importer Houston Shutters' case at the Court of International Trade filed under Section 1581(c) against the Commerce Department's "unpublished determination not to initiate a changed circumstances review." The government said the decision not to start the CCR isn't a decision listed under either 19 U.S.C. § 1516a or 1517, either of which would give the trade court jurisdiction under 28 U.S.C. 1581(c) (Houston Shutters v. United States, CIT # 24-00175).
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Houston Shutters asked for the CCR to exclude wood shutter components from the scope of the antidumping and countervailing duty orders on wood mouldings and millwork products from China. The request was brought three years after the orders were implemented and argued that the petitioners don't make wood shutter components. The petitioner, Coalition of American Millwork Products, objected to the request, claiming that its members make wood shutter components and are interested in continuing to have the products covered by the orders.
Based on the petitioner's representations, Commerce declined to open the CCR, and the decision went unpublished in the Federal Register. Houston Shutters brought two suits to CIT to contest the move, one brought under Section 1581(c) and the other under Section 1581(i), the trade court's "residual" jurisdiction. The importer admitted in its complaint that a decision not to conduct a CCR "does not appear to be enumerated as an appealable determination under" Section 1516a(a), which would establish jurisdiction under Section 1581(c).
The U.S. argued that Section 1516a(a)(1) doesn't list the non-initiation of a CCR as a decision subject to review. While this provision allows for the review of a decision from the International Trade Commission not to review an injury determination based on changed circumstances, the government noted that this was solely limited to ITC decisions and not Commerce determinations.
Similarly, Section 1516a(a)(2) doesn't allow for the review of the decision. While this provision allows for the review of all "reviewable determinations" of Commerce or the ITC, the U.S. said the "reviewable determinations must be contested" within 30 days of publication in the FR. Since the decision wasn't published in the FR, this section doesn't apply, the brief said.