19 U.S.C. § 1516a — Judicial review in countervailing duty and antidumping duty proceedings

(a) Review of determination

(1) Review of certain determinations. Within 30 days after the determination is published in the Federal Register, an interested party that was a party to the related proceeding may start an action in the United States Court of International Trade. The party must file a summons and complaint at the same time, in the form and manner required by that court's rules, and may challenge any factual finding or legal conclusion supporting the determination. This applies to:

(A) the administering authority's decision under section 1671a(c) or 1673a(c) of this title not to begin an investigation;

(B) the Commission's decision under section 1675(b) of this title not to review a determination based on changed circumstances;

(C) the Commission's negative decision under section 1671b(a) or 1673b(a) of this title about whether there is a 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.

(2) Review of determinations on record.

(A) General rule. Within 30 days after the applicable event below, an interested party that was a party to the related proceeding may start an action in the United States Court of International Trade. The party must file a summons and then, within the next 30 days, file a complaint. Both filings must meet that court's rules. The action may challenge any factual finding or legal conclusion supporting the determination.

(i) The applicable event is the date the Federal Register publishes notice of any determination described in clause (ii), (iii), (iv), (v), or (viii) of subparagraph (B); the date the Federal Register publishes an antidumping-duty or countervailing-duty order based on a determination described in clause (i) of subparagraph (B); or the date the Federal Register publishes notice that a determination described in clause (vii) of subparagraph (B) has been implemented.

(ii) For a determination described in clause (vi) of subparagraph (B), the applicable event is the date the determination is mailed.

(B) Reviewable determinations. The following determinations may be challenged under subparagraph (A):

(i) A final affirmative determination by the administering authority and the Commission under section 1671d or 1673d of this title, including any negative part of that determination, except for a part covered by clause (ii).

(ii) A final negative determination by the administering authority or the Commission under section 1671d or 1673d of this title. At the appellant's option, this also includes any part of a final affirmative determination that specifically leaves out a company or product.

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

(iv) The administering authority's determination under section 1671c or 1673c of this title to suspend an antidumping-duty or countervailing-duty investigation. This includes a final determination from a continued investigation that changes the calculated dumping margin or net countervailable subsidy, or changes the reasoning for those calculations, from the amount or reasoning used when the suspension agreement was made.

(v) The Commission's determination under section 1671c(h) or 1673c(h) that an injurious effect exists.

(vi) The administering authority's determination whether a particular type of merchandise falls within the class or kind of merchandise described in an existing finding of dumping or antidumping-duty 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. Even though paragraph (2)(A)(i)(II) normally limits when an administering authority's final affirmative determination under section 1671d or 1673d may be challenged, that determination may be challenged under paragraph (2)(A) within 30 days after the Federal Register publishes the Commission's final negative determination under section 1671d or 1673d.

(4) Procedures and fees. Chapter 169 of title 28 supplies the procedures and fees for an action under this section.

(5) Time limits in cases involving merchandise from free trade area countries. Despite the other rules in this subsection, if subsection (g) applies to the determination, the action cannot begin and the time for beginning it does not start until the date specified below:

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

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

(C) If binational-panel review has begun under subsection (g)(8), the date is the day after both of these events have occurred: the binational panel dismissed its review for lack of jurisdiction; and every interested party seeking review under paragraph (1), (2), or (3) gave timely notice under subsection (g)(3)(B).

If an interested party files a summons and complaint after the binational panel dismisses the review, and someone requests an extraordinary-challenge committee concerning that dismissal, judicial review under this subsection is stayed while the committee considers the request. The United States Court of International Trade must dismiss the action if the committee vacates or sends back the binational panel's dismissal decision.

(D) For a determination reviewed in the Court of International Trade under subsection (g)(12)(B), the date is the day after the Federal Register publishes notice that article 10.12 of the USMCA has been suspended. For a determination reviewed there under subsection (g)(12)(D), the date is the day after notice of settlement is published in the Federal Register.

(E) For a determination described in clause (vii) of paragraph (2)(B), the date is the 31st day after notice that the determination was implemented is published in the Federal Register.

(b) Standards of review

(1) Remedy. The court must declare a determination, finding, or conclusion unlawful if it finds that:

(A) in an action under subparagraph (A), (B), or (C) of subsection (a)(1), the determination, finding, or conclusion is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

(B) in an action under subsection (a)(2), it is unsupported by substantial evidence on the record or otherwise not in accordance with law; or, in an action under subsection (a)(1)(D), it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.

(2) Record for review.

(A) General rule. Unless the parties agree otherwise, the record for this subsection consists of:

(i) all information presented to or obtained by the Secretary, the administering authority, or the Commission during the administrative proceeding. This includes all government memoranda about the case and the record of ex parte meetings that section 1677f(a)(3) of this title requires to be kept; and

(ii) the determination; all transcripts or records of conferences or hearings; and all notices published in the Federal Register.

(B) Confidential or privileged material. Any confidential or privileged status given to documents, comments, or information remains in place in an action under this section. Even so, the court may examine the confidential or privileged material privately, and may disclose it under terms and conditions that it orders.

(3) Effect of decisions by United States-Canada or USMCA binational panels. When deciding an action under subsection (a), a United States court is not bound by a final decision of a binational panel or extraordinary challenge committee convened under article 1904 of the Agreement or article 10.12 of the USMCA. The court may nevertheless consider that decision.

(c) Liquidation of entries

(1) Liquidation in accordance with determination. Unless the court stops liquidation under paragraph (2), entries of merchandise covered by a determination of the Secretary, administering authority, or Commission that is challenged under subsection (a) must be liquidated according to that determination if the merchandise was entered, or withdrawn from a warehouse, for consumption on or before the date when the Secretary or administering authority publishes in the Federal Register notice of a United States Court of International Trade or Federal Circuit decision that is not in harmony with the determination. The notice must be published within 10 days after the court issues its decision.

(2) Injunctive relief. For a determination described in subsection (a)(2), the United States Court of International Trade may stop liquidation of some or all entries covered by the determination. An interested party must request this relief and properly show that it should be granted under the circumstances.

(3) Remand for final disposition. If the final result of an action under this section does not agree with the Secretary's, administering authority's, or Commission's published determination, the matter must be sent back to the appropriate Secretary, administering authority, or Commission. That agency must dispose of it consistently with the court's final result.

(d) Standing

Any interested party that was a party to a proceeding under section 1303 of this title or subtitle IV of this chapter may appear and be heard as an interested party before the United States Court of International Trade. The party that files the action must notify all those interested parties that it filed the action. The notice must use the form and manner, and be given within the time, required by the court's rules.

(e) Liquidation in accordance with final decision

If a decision of the United States Court of International Trade or the United States Court of Appeals for the Federal Circuit upholds the cause of action in whole or in part, then the following entries must be liquidated according to the final court decision: (1) entries of merchandise covered by the Secretary's, administering authority's, or Commission's published determination that are entered, or withdrawn from a warehouse, for consumption after the Secretary or administering authority publishes Federal Register notice of the court decision; and (2) entries whose liquidation was stopped under subsection (c)(2). The notice of the court decision must be published within 10 days after the court issues the decision.

(f) Definitions

For this section:

(1) chr(39)Administering authoritychr(39) means the administering authority described in section 1677(1) of this title.

(2) chr(39)Commissionchr(39) means the United States International Trade Commission.

(3) chr(39)Interested partychr(39) means any person described in section 1677(9) of this title.

(4) chr(39)Secretarychr(39) means the Secretary of the Treasury.

(5) chr(39)Agreementchr(39) means the United States-Canada Free-Trade Agreement.

(6) chr(39)United States Secretarychr(39) means either:

(A) the secretary for the United States Section referred to in article 10.16 of the USMCA; or

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

(7) chr(39)Relevant FTA Secretarychr(39) means the Secretary of the relevant FTA country who is either:

(A) referred to in article 10.16 of the USMCA; or

(B) provided for in paragraph 5 of article 1909 of the Agreement.

(8) chr(39)Relevant FTA countrychr(39) means the free-trade-area country to which the antidumping-duty or countervailing-duty proceeding relates.

(9) chr(39)Free trade area countrychr(39) means:

(A) Canada, while the USMCA is in force for Canada and the United States applies the USMCA to Canada;

(B) Mexico, while the USMCA is in force for Mexico and the United States applies the USMCA to Mexico; or

(C) Canada, while both of these conditions apply: Canada is not a free-trade-area country under subparagraph (A), and the Agreement is in force for Canada and the United States applies the Agreement to Canada.

(10) chr(39)USMCAchr(39) has the meaning given in section 4502 of this title.

(g) Review of countervailing-duty and antidumping-duty determinations involving free-trade-area-country merchandise

(1) chr(39)Determinationchr(39) defined. For this subsection, chr(39)determinationchr(39) means a determination described in:

(A) subsection (a)(1)(B); or

(B) clause (i), (ii), (iii), (vi), or (vii) of subsection (a)(2)(B), if the determination was made in a proceeding about 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 someone requests binational-panel review under article 1904 of the Agreement or article 10.12 of the USMCA, then, except as paragraphs (3) and (4) provide: (A) the determination cannot be reviewed under subsection (a); and (B) no United States court has power or jurisdiction to review the determination on any legal or factual question through an action resembling mandamus or through another action.

(3) Exception to exclusive binational-panel review.

(A) General rule. A determination may be reviewed under subsection (a) if it is:

(i) a determination for which neither the United States nor the relevant FTA country requested binational-panel review under article 1904 of the Agreement or article 10.12 of the USMCA;

(ii) a revised determination issued directly because of judicial review begun under subsection (a), if neither the United States nor the relevant FTA country requested review of the original determination;

(iii) a determination issued directly because of judicial review begun under subsection (a) before the Agreement or USMCA took effect;

(iv) a determination that a binational panel decided it could not review;

(v) a determination for which binational-panel review ended under article 10.13 of the USMCA; or

(vi) a determination for which extraordinary-challenge-committee review ended under article 10.13 of the USMCA.

(B) Special rule. A determination described in subparagraph (A)(i) or (iv) may be reviewed under subsection (a) only if the party seeking review timely gives notice of its intent to begin judicial review to:

(i) the United States Secretary and the relevant FTA Secretary;

(ii) every interested party that was a party to the related proceeding; and

(iii) the administering authority or the Commission, as appropriate.

The notice is timely if delivered no later than 20 days after the date described in the applicable subparagraph (A) or (B) of subsection (a)(5). If the time for requesting binational-panel review is suspended under paragraph (8)(A)(ii), any time remaining to give notice of intent to seek judicial review is also suspended while that suspension lasts. The notice must include the information required by regulations of the administering authority, issued after consultation with the Commission, and must use the form and manner those regulations require.

(4) Exception to exclusive binational-panel review for constitutional issues.

(A) Constitutionality of binational-panel review system. An action for a declaratory judgment, an injunction, or both, concerning a determination may be brought only in the United States Court of Appeals for the District of Columbia Circuit if the claim is that a provision of, or amendment made by, the United States-Canada Free-Trade Agreement Implementation Act of 1988 establishing the chapter 19 Agreement binational-panel dispute system, or the United States-Mexico-Canada Agreement Implementation Act establishing the chapter 10 USMCA binational-panel dispute system, violates the Constitution. That court has jurisdiction over the action.

(B) Other constitutional review. Subsection (a) allows review of a determination solely concerning a constitutional issue, other than an issue covered by subparagraph (A), that arises under a United States law as enacted or applied. A review action under this subparagraph must be assigned to a three-judge panel of the United States Court of International Trade.

(C) Commencement of review. Despite subsection (a)'s deadlines, an interested party that was a party to the related proceeding may start an action under subparagraph (A) or (B) within 30 days after the Federal Register publishes notice that binational-panel review is complete. The party must file the action under the court's rules.

(D) Transfer of actions to appropriate court. If an action is filed under subparagraph (A) or (B) in one court and that court decides it should have been filed in the other court, the filing court must transfer it to the other court. The action continues as if it had been filed in the receiving court on the date it was actually filed in the first court.

(E) Frivolous claims. A frivolous claim under subparagraph (A) or (B) may be dismissed and may receive sanctions under section 1927 of title 28 and the Federal Rules of Civil Procedure.

(F) Security.

(i) Subparagraph (A) actions. Rule 65(c) of the Federal Rules of Civil Procedure supplies the security requirements for an action under subparagraph (A).

(ii) Subparagraph (B) actions. A court may not hear a claim, and may not issue a temporary restraining order or temporary or permanent injunction, in an action under subparagraph (B) unless the person seeking review first files an undertaking with enough security, in an amount set by the court, to repay affected parties for any loss, expense, or damage caused by an improvident or erroneous order or injunction. If the court upholds the constitutionality of the determination, it must award the prevailing party fees and expenses, in addition to that party's costs, unless it finds that the other party's position was substantially justified or that special circumstances would make the award unjust.

(G) Panel record. The record from the binational-panel proceeding is not part of the record for review under subparagraph (A) or (B).

(H) Appeal to Supreme Court of court orders in subparagraph (A) actions. Despite any other law, a final judgment of the United States Court of Appeals for the District of Columbia Circuit in an action under subparagraph (A) may be appealed directly to the Supreme Court. The appeal must be started by filing a notice of appeal within 10 days after the order is entered. The jurisdictional statement must be filed within 30 days after the order is entered. A single Supreme Court Justice may not stay an order issued in an action under subparagraph (A).

(5) Liquidation of entries.

(A) Application. If binational-panel review is requested under article 1904 of the Agreement or article 10.12 of the USMCA, this paragraph's rules apply despite subsection (c).

(B) General rule. Entries covered by the determination must be liquidated according to the administering authority's or Commission's determination if they were entered, or withdrawn from a warehouse, for consumption on or before the date the administering authority publishes in the Federal Register notice of a final binational-panel or extraordinary-challenge-committee decision that is not in harmony with the determination. The notice must be published within 10 days after the panel or committee issues its decision.

(C) Suspension of liquidation.

(i) General rule. Despite subparagraph (B), if the determination is described in clause (iii) or (vi) of subsection (a)(2)(B) and binational-panel review is requested under article 1904 of the Agreement or article 10.12 of the USMCA, the administering authority must, at the request of an interested party that was a party to the related proceeding and is participating in the panel review, order liquidation to remain suspended for the entries covered by the determination that are involved in the review, until the review finally ends.

(ii) Notice. When making the request, the interested party must serve a copy on the United States Secretary, the relevant FTA Secretary, and every interested party that was a party to the related proceeding.

(iii) Application of suspension. If the requesting interested party is a foreign manufacturer, producer, or exporter, or a United States importer, the continued suspension applies only to entries of merchandise made, produced, exported, or imported by that particular party. If the requesting party is an interested party described in section 1677(9)(C), (D), (E), or (F) of this title, the suspension applies only to entries that could be affected by a decision of the binational panel convened under chapter 19 of the Agreement or chapter 10 of the USMCA.

(iv) Judicial review. An action by the administering authority or United States Customs Service under this subparagraph cannot be judicially reviewed. No United States court has power or jurisdiction to review that action on a legal or factual question through an action resembling mandamus or through another action.

(6) Injunctive relief. Except for cases under paragraph (4)(B), subsection (c)(2) does not apply when binational-panel review is requested under article 1904 of the Agreement or article 10.12 of the USMCA.

(7) Implementing international obligations under article 1904 of the Agreement or article 10.12 of the USMCA.

(A) Action after remand. 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 sends the determination back to the administering authority or Commission, that authority or Commission must, within the period specified by the panel or committee, act consistently with the decision. The action by the administering authority or Commission cannot be judicially reviewed. No United States court has power or jurisdiction to review it on a legal or factual question through an action resembling mandamus or through another action.

(B) If subparagraph (A) is held unconstitutional. If subparagraph (A) is held unconstitutional under paragraph (4)(A) and (H), this subparagraph takes effect. The President may, for the United States, accept the binational panel's or extraordinary challenge committee's remand decision as a whole, within the period specified by the panel or committee. After the President accepts it, the administering authority or Commission must, within the specified period, act consistently with it. No action by the President, administering authority, or Commission under this subparagraph may be judicially reviewed. No United States court has power or jurisdiction to review it on a legal or factual question through an action resembling mandamus or through another action.

(8) Requests for binational-panel review.

(A) Requests by interested parties.

(i) General rule. An interested party that was a party to the proceeding may request binational-panel review by filing a request with the United States Secretary no later than 30 days after the date described in the applicable subparagraph (A), (B), or (E) of subsection (a)(5). The United States Secretary's receipt of the request counts as a request for binational-panel review under article 1904(4) of the Agreement or article 10.12 of the USMCA. The request must include the information and use the form, manner, and style required by regulations issued by the administering authority after consultation with the Commission.

(ii) Suspension of time to request USMCA panel review. Despite clause (i), the time for requesting binational-panel review is suspended while a stay of binational-panel review issued under article 10.13 of the USMCA remains in effect.

(B) Service of request.

(i) Service by interested party. If an interested party files a request under subparagraph (A), it must serve a copy by mail or personal service on every other interested party that was a party to the related proceeding and on the administering authority or Commission, as appropriate.

(ii) Service by United States Secretary. If an interested party requests binational-panel review by filing with the relevant FTA Secretary, the United States Secretary must mail a copy to every other interested party that was a party to the related proceeding and to the administering authority or Commission, as appropriate.

(C) Limit on United States request. Without a request by an interested party under subparagraph (A), the United States may not request binational-panel review under article 1904 of the Agreement or article 10.12 of the USMCA.

(9) Representation in panel proceedings. In binational-panel proceedings under chapter 19 of the Agreement or chapter 10 of the USMCA, the administering authority and Commission must each be represented by attorneys who are employees of that authority or Commission. Interested parties that were parties to the related proceeding may appear and be represented by counsel before the binational panel.

(10) Notice of class-or-kind rulings. For a determination described in subsection (a)(2)(B)(vi) and subject to paragraph (2), the administering authority must, upon request, tell an interested person the date when the government of the relevant FTA country received notice of the determination under paragraph 4 of article 1904 of the Agreement or article 10.12 of the USMCA.

(11) Suspension and ending of suspension of article 10.12 of the USMCA.

(A) Suspension. If a special committee established under article 10.13 of the USMCA makes an affirmative finding, the Trade Representative may suspend operation of article 10.12 in accordance with article 10.13.

(B) Ending the suspension. If the special committee is reconvened and makes an affirmative determination described in article 10.13, any suspension of article 10.12 ends.

(12) Judicial review when USMCA panel or committee review ends.

(A) Notice about suspension or ending suspension of article 10.12.

(i) Notice of suspension. If the Trade Representative or the government of a country described in subsection (f)(9)(A) or (B) notifies the United States Secretary that operation of article 10.12 has been suspended under article 10.13, the United States Secretary must publish a Federal Register notice of the suspension.

(ii) Notice that suspension ended. If the Trade Representative or that country's government notifies the United States Secretary that the suspension of article 10.12 has ended under article 10.13, the United States Secretary must publish a Federal Register notice that the suspension ended.

(B) Transfer of final determinations for court review after suspension. If operation of article 10.12 is suspended under article 10.13:

(i) at the request of an authorized person described in subparagraph (C), any final determination that is the subject of binational-panel or extraordinary-challenge-committee review must be transferred to the United States Court of International Trade, under that court's rules, for review under subsection (a); or

(ii) if binational-panel review ended fewer than 30 days before the suspension and no extraordinary-challenge-committee review was requested, the final determination that was the subject of the panel review must be transferred to the Court of International Trade, under its rules, for review under subsection (a), at the request of an authorized person described in subparagraph (C) made within 60 days after the panel review ended.

(C) People who may request transfer for court review. The following people may request a transfer under subparagraph (B):

(i) If the United States made an allegation under article 10.13 and article 10.12 was suspended because of that article, the request may be made by:

(I) the government of the relevant country described in subsection (f)(9)(A) or (B);

(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 for which panel review was requested, but only if the period for filing notices of appearance in the panel review has not ended.

(ii) If a country described in subsection (f)(9)(A) or (B) made an allegation under article 10.13 and article 10.12 was suspended because of that article, the request may be made by:

(I) that country's government;

(II) an interested party that is a person of that country and was a party to the panel or committee review; or

(III) an interested party that is a person of that country and was a party to the proceeding for which panel review was requested, but only if the period for filing notices of appearance in the panel review has not ended.

(D) Transfer for court review after settlement.

(i) If the Trade Representative reaches a settlement under article 10.13 with the government of a country described in subsection (f)(9)(A) or (B), and the settlement includes referral for judicial review, any final determination that is the subject of binational-panel or extraordinary-challenge-committee review must be transferred to the United States Court of International Trade, under that court's rules, for review under subsection (a), when a request described in clause (ii) is made.

(ii) The request may be made by the country described in clause (i); an interested party that was a party to the panel or committee review; or an interested party that was a party to the proceeding for which panel review was requested, but only if the period for filing notices of appearance in the panel review has not ended.