19 USC 1516a - Judicial review in countervailing duty and antidumping duty proceedings

U.S Code last checked for updates: Nov 25, 2024

§ 1516a.

Judicial review in countervailing duty and antidumping duty proceedings

(a)

Review of determination

(1)

Review of certain determinations

Within 30 days after the date of publication in the Federal Register of—

(A)

a determination by the administering authority, under 1671a(c) 1

 So in original. Probably should be preceded by “section”.

or 1673a(c) of this title, not to initiate an investigation,

(B)

a determination by the Commission, under section 1675(b) of this title, not to review a determination based upon changed circumstances,

(C)

a negative determination by the Commission, under section 1671b(a) or 1673b(a) of this title, as to whether there is reasonable indication of material injury, threat of material injury, or material retardation, or

(D)

a final determination by the administering authority or the Commission under section 1675(c)(3) of this title,

an interested party who is a party to the proceeding in connection with which the matter arises may commence an action in the United States Court of International Trade by filing concurrently a summons and complaint, each with the content and in the form, manner, and style prescribed by the rules of that court, contesting any factual findings or legal conclusions upon which the determination is based.

(2)

Review of determinations on record

(A)

In general

Within thirty days after—

(i)

the date of publication in the Federal Register of—

(I)

notice of any determination described in clause (ii), (iii), (iv), (v), or (viii) of subparagraph (B),

(II)

an antidumping or countervailing duty order based upon any determination described in clause (i) of subparagraph (B), or

(III)

notice of the implementation of any determination described in clause (vii) of subparagraph (B), or

(ii)

the date of mailing of a determination described in clause (vi) of subparagraph (B),

an interested party who is a party to the proceeding in connection with which the matter arises may commence an action in the United States Court of International Trade by filing a summons, and within thirty days thereafter a complaint, each with the content and in the form, manner, and style prescribed by the rules of that court, contesting any factual findings or legal conclusions upon which the determination is based.

(B)

Reviewable determinations

The determinations which may be contested under subparagraph (A) are as follows:

(i)

Final affirmative determinations by the administering authority and by the Commission under section 1671d or 1673d of this title, including any negative part of such a determination (other than a part referred to in clause (ii)).

(ii)

A final negative determination by the administering authority or the Commission under section 1671d or 1673d of this title, including, at the option of the appellant, any part of a final affirmative determination which specifically excludes any company or product.

(iii)

A final determination, other than a determination reviewable under paragraph (1), by the administering authority or the Commission under section 1675 of this title.

(iv)

A determination by the administering authority, under section 1671c or 1673c of this title, to suspend an antidumping duty or a countervailing duty investigation, including any final determination resulting from a continued investigation which changes the size of the dumping margin or net countervailable subsidy calculated, or the reasoning underlying such calculations, at the time the suspension agreement was concluded.

(v)

An injurious effect determination by the Commission under section 1671c(h) or 1673c(h) of this title.

(vi)

A determination by the administering authority 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.

(vii)

A determination by the administering authority or the Commission under section 3538 of this title concerning a determination under subtitle IV of this chapter.

(viii)

A determination by the Commission under section 1675b(a)(1) of this title.

(3)

Exception

(4)

Procedures and fees

(5)

Time limits in cases involving merchandise from free trade area countries

Notwithstanding any other provision of this subsection, in the case of a determination to which the provisions of subsection (g) apply, an action under this subsection may not be commenced, and the time limits for commencing an action under this subsection shall not begin to run, until the day specified in whichever of the following subparagraphs applies:

(A)

For a determination described in paragraph (1)(B) or clause (i), (ii) or (iii) of paragraph (2)(B), the 31st day after the date on which notice of the determination is published in the Federal Register.

(B)

For a determination described in clause (vi) of paragraph (2)(B), the 31st day after the date on which the government of the relevant FTA country receives notice of the determination.

(C)

For a determination with respect to which binational panel review has commenced in accordance with subsection (g)(8), the day after the date as of which—

(I)

judicial review under this subsection shall be stayed during consideration by the committee of the request, and

(II)

the United States Court of International Trade shall dismiss the action if the committee vacates or remands the binational panel decision to dismiss.

(i)

the binational panel has dismissed binational panel review of the determination for lack of jurisdiction, and

(ii)

any interested party seeking review of the determination under paragraph (1), (2), or (3) of this subsection has provided timely notice under subsection (g)(3)(B).

If such an interested party files a summons and complaint under this subsection after dismissal by the binational panel, and if a request for an extraordinary challenge committee is made with respect to the decision by the binational panel to dismiss—

(D)

For a determination for which review by the United States Court of International Trade is provided for—

(i)

under subsection (g)(12)(B), the day after the date of publication in the Federal Register of notice that article 10.12 of the USMCA has been suspended, or

(ii)

under subsection (g)(12)(D), the day after the date that notice of settlement is published in the Federal Register.

(E)

For a determination described in clause (vii) of paragraph (2)(B), the 31st day after the date on which notice of the implementation of the determination is published in the Federal Register.

(b)

Standards of review

(1)

Remedy

The court shall hold unlawful any determination, finding, or conclusion found—

(A)

in an action brought under subparagraph (A), (B), or (C) of subsection (a)(1), to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, or

(B)

(i)

in an action brought under paragraph (2) of subsection (a), to be unsupported by substantial evidence on the record, or otherwise not in accordance with law, or

(ii)

in an action brought under paragraph (1)(D) of subsection (a), to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.

(2)

Record for review

(A)

In general

For the purposes of this subsection, the record, unless otherwise stipulated by the parties, shall consist of—

(i)

a copy of all information presented to or obtained by the Secretary, the administering authority, or the Commission during the course of the administrative proceeding, including all governmental memoranda pertaining to the case and the record of ex parte meetings required to be kept by section 1677f(a)(3) of this title; and

(ii)

a copy of the determination, all transcripts or records of conferences or hearings, and all notices published in the Federal Register.

(B)

Confidential or privileged material

(3)

Effect of decisions by United States-Canada or USMCA binational panels

(c)

Liquidation of entries

(1)

Liquidation in accordance with determination

(2)

Injunctive relief

(3)

Remand for final disposition

(d)

Standing

(e)

Liquidation in accordance with final decision

If the cause of action is sustained in whole or in part by a decision of the United States Court of International Trade or of the United States Court of Appeals for the Federal Circuit—

(1)

entries of merchandise of the character covered by the published determination of the Secretary, the administering authority, or the Commission, which is entered, or withdrawn from warehouse, for consumption after the date of publication in the Federal Register by the Secretary or the administering authority of a notice of the court decision, and

(2)

entries, the liquidation of which was enjoined under subsection (c)(2),

shall be liquidated in accordance with the final court decision in the action. Such notice of the court decision shall be published within ten days from the date of the issuance of the court decision.

(f)

Definitions

For purposes of this section—

(1)

Administering authority

(2)

Commission

(3)

Interested party

(4)

Secretary

(5)

Agreement

(6)

United States Secretary

The term “United States Secretary” means—

(A)

the secretary for the United States Section referred to in article 10.16 of the USMCA, and

(B)

the secretary of the United States Section provided for in article 1909 of the Agreement.

(7)

Relevant FTA Secretary

The term “relevant FTA Secretary” means the Secretary—

(A)

referred to in article 10.16 of the USMCA, or

(B)

provided for in paragraph 5 of article 1909 of the Agreement,

of the relevant FTA country.

(8)

Relevant FTA country

(9)

Free trade area country

The term “free trade area country” means the following:

(A)

Canada for such time as the USMCA is in force with respect to, and the United States applies the USMCA to, Canada.

(B)

Mexico for such time as the USMCA is in force with respect to, and the United States applies the USMCA to, Mexico.

(C)

Canada for such time as—

(i)

it is not a free trade area country under subparagraph (A); and

(ii)

the Agreement is in force with respect to, and the United States applies the Agreement to, Canada.

(10)

USMCA

(g)

Review of countervailing duty and antidumping duty determinations involving free trade area country merchandise

(1)

“Determination” defined

For purposes of this subsection, the term “determination” means a determination described in—

(A)

paragraph (1)(B) of subsection (a), or

(B)

clause (i), (ii), (iii), (vi), or (vii) of paragraph (2)(B) of subsection (a),

if made in connection with a proceeding regarding a class or kind of free trade area country merchandise, as determined by the administering authority.

(2)

Exclusive review of determination by binational panels

If binational panel review of a determination is requested pursuant to article 1904 of the Agreement or article 10.12 of the USMCA, then, except as provided in paragraphs (3) and (4)—

(A)

the determination is not reviewable under subsection (a), and

(B)

no court of the United States has power or jurisdiction to review the determination on any question of law or fact by an action in the nature of mandamus or otherwise.

(3)

Exception to exclusive binational panel review

(A)

In general

A determination is reviewable under subsection (a) if the determination sought to be reviewed is—

(i)

a determination as to which neither the United States nor the relevant FTA country requested review by a binational panel pursuant to article 1904 of the Agreement or article 10.12 of the USMCA; 3

 So in original. The semicolon probably should be a comma.

(ii)

a revised determination issued as a direct result of judicial review, commenced pursuant to subsection (a), if neither the United States nor the relevant FTA country requested review of the original determination,

(iii)

a determination issued as a direct result of judicial review that was commenced pursuant to subsection (a) prior to the entry into force of the Agreement or the USMCA,

(iv)

a determination which a binational panel has determined is not reviewable by the binational panel,

(v)

a determination as to which binational panel review has terminated pursuant to article 10.13 of the USMCA, or

(vi)

a determination as to which extraordinary challenge committee review has terminated pursuant to article 10.13 of the USMCA.

(B)

Special rule

A determination described in subparagraph (A)(i) or (iv) is reviewable under subsection (a) only if the party seeking to commence review has provided timely notice of its intent to commence such review to—

(i)

the United States Secretary and the relevant FTA Secretary;

(ii)

all interested parties who were parties to the proceeding in connection with which the matter arises; and

(iii)

the administering authority or the Commission, as appropriate.

Such notice is timely provided if the notice is delivered no later than the date that is 20 days after the date described in subparagraph (A) or (B) of subsection (a)(5) that is applicable to such determination, except that, if the time for requesting binational panel review is suspended under paragraph (8)(A)(ii) of this subsection, any unexpired time for providing notice of intent to commence judicial review shall, during the pendency of any such suspension, also be suspended. Such notice shall contain such information, and be in such form, manner, and style, as the administering authority, in consultation with the Commission, shall prescribe by regulations.

(4)

Exception to exclusive binational panel review for constitutional issues

(A)

Constitutionality of binational panel review system

(B)

Other constitutional review

(C)

Commencement of review

(D)

Transfer of actions to appropriate court

(E)

Frivolous claims

(F)

Security

(i)

Subparagraph (A) actions

(ii)

Subparagraph (B) actions

(G)

Panel record

(H)

Appeal to Supreme Court of court orders issued in subparagraph (A) actions

(5)

Liquidation of entries

(A)

Application

(B)

General rule

(C)

Suspension of liquidation

(i)

In general

(ii)

Notice

(iii)

Application of suspension

(iv)

Judicial review

(6)

Injunctive relief

(7)

Implementation of international obligations under article 1904 of the Agreement or article 10.12 of the USMCA

(A)

Action upon remand

(B)

Application if subparagraph (A) held unconstitutional

(8)

Requests for binational panel review

(A)

Interested party requests for binational panel review

(i)

General rule

(ii)

Suspension of time to request binational panel review under the USMCA

(B)

Service of request for binational panel review

(i)

Service by interested party

(ii)

Service by United States Secretary

(C)

Limitation on request for binational panel review

(9)

Representation in panel proceedings

(10)

Notification of class or kind rulings

(11)

Suspension and termination of suspension of article 10.12 of the USMCA

(A)

Suspension

(B)

Termination of suspension

(12)

Judicial review upon termination of binational panel or committee review under the USMCA

(A)

Notice of suspension or termination of suspension of article 10.12 of the USMCA

(i)

Notice of suspension

(ii)

Notice of termination of suspension

(B)

Transfer of final determinations for judicial review upon suspension of article 10.12 of the USMCA

If the operation of article 10.12 of the USMCA is suspended in accordance with article 10.13 of the USMCA—

(i)

upon the request of an authorized person described in subparagraph (C), any final determination that is the subject of a binational panel review or an extraordinary challenge committee review shall be transferred to the United States Court of International Trade (in accordance with rules issued by the Court) for review under subsection (a); or

(ii)

in a case in which—

(I)

a binational panel review was completed fewer than 30 days before the suspension, and

(II)

extraordinary challenge committee review has not been requested,

upon the request of an authorized person described in subparagraph (C) which is made within 60 days after the completion of the binational panel review, the final determination that was the subject of the binational panel review shall be transferred to the United States Court of International Trade (in accordance with rules issued by the Court) for review under subsection (a).

(C)

Persons authorized to request transfer of final determinations for judicial review

A request that a final determination be transferred to the Court of International Trade under subparagraph (B) may be made by—

(i)

if the United States made an allegation under article 10.13 of the USMCA and the operation of article 10.12 of the USMCA was suspended pursuant to article 10.13 of the USMCA—

(I)

the government of the relevant country described in subparagraph (A) or (B) of subsection (f)(9),

(II)

an interested party that was a party to the panel or committee review, or

(III)

an interested party that was a party to the proceeding in connection with which panel review was requested, but only if the time period for filing notices of appearance in the panel review has not expired, or

(ii)

if a country described in subparagraph (A) or (B) of subsection (f)(9) made an allegation under article 10.13 of the USMCA and the operation of article 10.12 of the USMCA was suspended pursuant to article 10.13 of the USMCA—

(I)

the government of that country,

(II)

an interested party that is a person of that country and that was a party to the panel or committee review, or

(III)

an interested party that is a person of that country and that was a party to the proceeding in connection with which panel review was requested, but only if the time period for filing notices of appearance in the panel review has not expired.

(D)

Transfer for judicial review upon settlement

(i)

If the Trade Representative achieves a settlement with the government of a country described in subparagraph (A) or (B) of subsection (f)(9) pursuant to article 10.13 of the USMCA, and referral for judicial review is among the terms of such settlement, any final determination that is the subject of a binational panel review or an extraordinary challenge committee review shall, upon a request described in clause (ii), be transferred to the United States Court of International Trade (in accordance with rules issued by the Court) for review under subsection (a).

(ii)

A request referred to in clause (i) is a request made by—

(I)

the country referred to in clause (i),

(II)

an interested party that was a party to the panel or committee review, or

(III)

an interested party that was a party to the proceeding in connection with which panel review was requested, but only if the time for filing notices of appearance in the panel review has not expired.

(June 17, 1930, ch. 497, title IV, § 516A, as added Pub. L. 96–39, title X, § 1001(a), July 26, 1979, 93 Stat. 300; amended Pub. L. 96–417, title VI, §§ 601(7), 608, Oct. 10, 1980, 94 Stat. 1744, 1745; Pub. L. 96–542, § 2, Dec. 17, 1980, 94 Stat. 3210; Pub. L. 97–164, title I, § 163(a)(2), Apr. 2, 1982, 96 Stat. 49; Pub. L. 98–573, title VI, § 623(a), Oct. 30, 1984, 98 Stat. 3040; Pub. L. 99–514, title XVIII, § 1888(6), Oct. 22, 1986, 100 Stat. 2925; Pub. L. 100–449, title IV, § 401, Sept. 28, 1988, 102 Stat. 1878; Pub. L. 101–382, title I, § 134(a)(3), Aug. 20, 1990, 104 Stat. 649; Pub. L. 103–182, title IV, § 411, Dec. 8, 1993, 107 Stat. 2140; Pub. L. 103–465, title I, § 129(e), title II, §§ 220(b), 270(a)(1)(N), 271(b), Dec. 8, 1994, 108 Stat. 4838, 4864, 4917, 4921; Pub. L. 104–295, §§ 20(a)(1), 21(c)(3), 22, Oct. 11, 1996, 110 Stat. 3526, 3530, 3531; Pub. L. 109–432, div. D, title III, § 3002, Dec. 20, 2006, 120 Stat. 3173; Pub. L. 116–113, title IV, § 421, Jan. 29, 2020, 134 Stat. 61.)

cite as: 19 USC 1516a