§ 1516a — Judicial Review In Countervailing Duty And Antidumping Duty Proceedings

(1) Within 30 days after the date of publication in the Federal Register of— (A) 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, (A) 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), (B) 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) Notwithstanding the limitation imposed by paragraph (2)(A)(i)(II) of this subsection, a final affirmative determination by the administering authority under section 1671d or 1673d of this title may be contested by commencing an action, in accordance with the provisions of paragraph (2)(A), within thirty days after the date of publication in the Federal Register of a final negative determination by the Commission under section 1671d or 1673d of this title. (4) The procedures and fees set forth in chapter 169 of title 28 apply to an action under this section. (5) 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) 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). (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. (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. (1) 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 (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. (A) 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) The confidential or privileged status accorded to any documents, comments, or information shall be preserved in any action under this section. Notwithstanding the preceding sentence, the court may examine, in camera, the confidential or privileged material, and may disclose such material under such terms and conditions as it may order. (3) In making a decision in any action brought under subsection (a), a court of the United States is not bound by, but may take into consideration, a final decision of a binational panel or extraordinary challenge committee convened pursuant to article 1904 of the Agreement or article 10.12 of the USMCA. (1) Unless such liquidation is enjoined by the court under paragraph (2) of this subsection, entries of merchandise of the character covered by a determination of the Secretary, the administering authority, or the Commission contested under subsection (a) shall be liquidated in accordance with the determination of the Secretary, the administering authority, or the Commission, if they are entered, or withdrawn from warehouse, for consumption on or before the date of publication in the Federal Register by the Secretary or the administering authority of a notice of a decision of the United States Court of International Trade, or of the United States Court of Appeals for the Federal Circuit, not in harmony with that determination. Such notice of a decision shall be published within ten days from the date of the issuance of the court decision. (2) In the case of a determination described in paragraph (2) of subsection (a) by the Secretary, the administering authority, or the Commission, the United States Court of International Trade may enjoin the liquidation of some or all entries of merchandise covered by a determination of the Secretary, the administering authority, or the Commission, upon a request by an interested party for such relief and a proper showing that the requested relief should be granted under the circumstances. (3) If the final disposition of an action brought under this section is not in harmony with the published determination of the Secretary, the administering authority, or the Commission, the matter shall be remanded to the Secretary, the administering authority, or the Commission, as appropriate, for disposition consistent with the final disposition of the court. (d) of this title or subtitle IV of this chapter shall have the right to appear and be heard as a party in interest before the United States Court of International Trade. The party filing the action shall notify all such interested parties of the filing of an action under this section, in the form, manner, style, and within the time prescribed by rules of the court. (e) 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), (f) For purposes of this section— (1) The term “administering authority” means the administering authority described in section 1677(1) of this title. (2) The term “Commission” means the United States International Trade Commission. (3) The term “interested party” means any person described in section 1677(9) of this title. (4) The term “Secretary” means the Secretary of the Treasury. (5) The term “Agreement” means the United States-Canada Free-Trade Agreement. (6) 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) 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, (8) The term “relevant FTA country” means the free trade area country to which an antidumping or countervailing duty proceeding pertains. (9) 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) The term “USMCA” has the meaning given that term in section 4502 of this title. (1) 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), (2) 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. (A) A determination is reviewable under subsection (a) if the determination sought to be reviewed is— (i) (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) 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. (A) An action for declaratory judgment or injunctive relief, or both, regarding a determination on the grounds that any provision of, or amendment made by, the United States-Canada Free-Trade Agreement Implementation Act of 1988 implementing the binational panel dispute settlement system under chapter 19 of the Agreement, or the United States-Mexico-Canada Agreement Implementation Act implementing the binational panel dispute settlement system under chapter 10 of the USMCA, violates the Constitution may be brought only in the United States Court of Appeals for the District of Columbia Circuit, which shall have jurisdiction of such action. (B) Review is available under subsection (a) with respect to a determination solely concerning a constitutional issue (other than an issue to which subparagraph (A) applies) arising under any law of the United States as enacted or applied. An action for review under this subparagraph shall be assigned to a 3-judge panel of the United States Court of International Trade. (C) Notwithstanding the time limits in subsection (a), within 30 days after the date of publication in the Federal Register of notice that binational panel review has been completed, an interested party who is a party to the proceeding in connection with which the matter arises may commence an action under subparagraph (A) or (B) by filing an action in accordance with the rules of the court. (D) Whenever an action is filed in a court under subparagraph (A) or (B) and that court finds that the action should have been filed in the other court, the court in which the action was filed shall transfer the action to the other court and the action shall proceed as if it had been filed in the court to which it is transferred on the date upon which it was actually filed in the court from which it is transferred. (E) Frivolous claims brought under subparagraph (A) or (B) are subject to dismissal and sanctions as provided under section 1927 of title 28 and the Federal Rules of Civil Procedure. (i) The security requirements of rule 65(c) of the Federal Rules of Civil Procedure apply with respect to actions commenced under subparagraph (A). (ii) No claim shall be heard, and no temporary restraining order or temporary or permanent injunction shall be issued, under an action commenced under subparagraph (B), unless the party seeking review first files an undertaking with adequate security in an amount to be fixed by the court sufficient to recompense parties affected for any loss, expense, or damage caused by the improvident or erroneous issuance of such order or injunction. If a court upholds the constitutionality of the determination in question in such action, the court shall award to a prevailing party fees and expenses, in addition to any costs incurred by that party, unless the court finds that the position of the other party was substantially justified or that special circumstances make an award unjust. (G) The record of proceedings before the binational panel shall not be considered part of the record for review pursuant to subparagraph (A) or (B). (H) Notwithstanding any other provision of law, any final judgment of the United States Court of Appeals for the District of Columbia Circuit which is issued pursuant to an action brought under subparagraph (A) shall be reviewable by appeal directly to the Supreme Court of the United States. Any such appeal shall be taken by a notice of appeal filed within 10 days after such order is entered; and the jurisdictional statement shall be filed within 30 days after such order is entered. No stay of an order issued pursuant to an action brought under subparagraph (A) may be issued by a single Justice of the Supreme Court. (A) In the case of a determination for which binational panel review is requested pursuant to article 1904 of the Agreement or article 10.12 of the USMCA, the rules provided in this paragraph shall apply, notwithstanding the provisions of subsection (c). (B) In the case of a determination for which binational panel review is requested pursuant to article 1904 of the Agreement or article 10.12 of the USMCA, entries of merchandise covered by such determination shall be liquidated in accordance with the determination of the administering authority or the Commission, if they are entered, or withdrawn from warehouse, for consumption on or before the date of publication in the Federal Register by the administering authority of notice of a final decision of a binational panel, or of an extraordinary challenge committee, not in harmony with that determination. Such notice of a decision shall be published within 10 days of the date of the issuance of the panel or committee decision. (i) Notwithstanding the provisions of subparagraph (B), in the case of a determination described in clause (iii) or (vi) of subsection (a)(2)(B) for which binational panel review is requested pursuant to article 1904 of the Agreement or article 10.12 of the USMCA, the administering authority, upon request of an interested party who was a party to the proceeding in connection with which the matter arises and who is a participant in the binational panel review, shall order the continued suspension of liquidation of those entries of merchandise covered by the determination that are involved in the review pending the final disposition of the review. (ii) At the same time as the interested party makes its request to the administering authority under clause (i), that party shall serve a copy of its request on the United States Secretary, the relevant FTA Secretary, and all interested parties who were parties to the proceeding in connection with which the matter arises. (iii) If the interested party requesting continued suspension of liquidation under clause (i) is a foreign manufacturer, producer, or exporter, or a United States importer, the continued suspension of liquidation shall apply only to entries of merchandise manufactured, produced, exported, or imported by that particular manufacturer, producer, exporter, or importer. If the interested party requesting the continued suspension of liquidation under clause (i) is an interested party described in subparagraph (C), (D), (E), or (F) of section 1677(9) of this title, the continued suspension of liquidation shall apply only to entries which could be affected by a decision of the binational panel convened under chapter 19 of the Agreement or chapter 10 of the USMCA. (iv) Any action taken by the administering authority or the United States Customs Service under this subparagraph shall not be subject to judicial review, and no court of the United States shall have power or jurisdiction to review such action on any question of law or fact by an action in the nature of mandamus or otherwise. (6) Except for cases under paragraph (4)(B), in the case of a determination for which binational panel review is requested pursuant to article 1904 of the Agreement or article 10.12 of the USMCA, the provisions of subsection (c)(2) shall not apply. (A) If a determination is referred to a binational panel or extraordinary challenge committee under article 1904 of the Agreement or article 10.12 of the USMCA and the panel or committee makes a decision remanding the determination to the administering authority or the Commission, the administering authority or the Commission shall, within the period specified by the panel or committee, take action not inconsistent with the decision of the panel or committee. Any action taken by the administering authority or the Commission under this paragraph shall not be subject to judicial review, and no court of the United States shall have power or jurisdiction to review such action on any question of law or fact by an action in the nature of mandamus or otherwise. (B) In the event that the provisions of subparagraph (A) are held unconstitutional under the provisions of subparagraphs (A) and (H) of paragraph (4), the provisions of this subparagraph shall take effect. In such event, the President is authorized on behalf of the United States to accept, as a whole, the decision of a binational panel or extraordinary challenge committee remanding the determination to the administering authority or the Commission within the period specified by the panel or committee. Upon acceptance by the President of such a decision, the administering authority or the Commission shall, within the period specified by the panel or committee, take action not inconsistent with such decision. Any action taken by the President, the administering authority, or the Commission under this subparagraph shall not be subject to judicial review, and no court of the United States shall have power or jurisdiction to review such action on any question of law or fact by an action in the nature of mandamus or otherwise. (i) An interested party who was a party to the proceeding in which a determination is made may request binational panel review of such determination by filing a request with the United States Secretary by no later than the date that is 30 days after the date described in subparagraph (A), (B), or (E) of subsection (a)(5) that is applicable to such determination. Receipt of such request by the United States Secretary shall be deemed to be a request for binational panel review within the meaning of article 1904(4) of the Agreement or article 10.12 of the USMCA. Such request 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. (ii) Notwithstanding clause (i), the time for requesting binational panel review shall be suspended during the pendency of any stay of binational panel review that is issued pursuant to article 10.13 of the USMCA. (i) If a request for binational panel review of a determination is filed under subparagraph (A), the party making the request shall serve a copy, by mail or personal service, on any other interested party who was a party to the proceeding in connection with which the matter arises, and on the administering authority or the Commission, as appropriate. (ii) If an interested party to the proceeding requests binational panel review of a determination by filing a request with the relevant FTA Secretary, the United States Secretary shall serve a copy of the request by mail on any other interested party who was a party to the proceeding in connection with which the matter arises, and on the administering authority or the Commission, as appropriate. (C) Absent a request by an interested party under subparagraph (A), the United States may not request binational panel review of a determination under article 1904 of the Agreement or article 10.12 of the USMCA. (9) In the case of binational panel proceedings convened under chapter 19 of the Agreement or chapter 10 of the USMCA, the administering authority and the Commission shall be represented by attorneys who are employees of the administering authority or the Commission, respectively. Interested parties who were parties to the proceeding in connection with which the matter arises shall have the right to appear and be represented by counsel before the binational panel. (10) In the case of a determination which is described in paragraph (2)(B)(vi) of subsection (a) and which is subject to the provisions of paragraph (2), the administering authority, upon request, shall inform any interested person of the date on which the Government of the relevant FTA country received notice of the determination under paragraph 4 of article 1904 of the Agreement or under article 10.12 of the USMCA. (A) If a special committee established under article 10.13 of the USMCA issues an affirmative finding, the Trade Representative may, in accordance with article 10.13 of the USMCA, suspend the operation of article 10.12 of the USMCA. (B) If a special committee is reconvened and makes an affirmative determination described in article 10.13 of the USMCA, any suspension of the operation of article 10.12 of the USMCA shall terminate. (i) Upon notification by the Trade Representative or the government of a country described in subparagraph (A) or (B) of subsection (f)(9) that the operation of article 10.12 of the USMCA has been suspended in accordance with article 10.13 of the USMCA, the United States Secretary shall publish in the Federal Register a notice of suspension of article 10.12 of the USMCA. (ii) Upon notification by the Trade Representative or the government of a country described in subparagraph (A) or (B) of subsection (f)(9) that the suspension of the operation of article 10.12 of the USMCA is terminated in accordance with article 10.13 of the USMCA, the United States Secretary shall publish in the Federal Register a notice of termination of suspension of article 10.12 of the USMCA. (B) 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, (C) 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. (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.