Section 1581(i) Not for 'Impatient Parties', DOJ Says in Bid to Toss Case Over AD Cash Deposit Rate

The Court of International Trade should dismiss Canadian exporter J.D. Irving's challenge to antidumping duty cash deposit instructions filed under the court's "residual" jurisdiction since it is not a novel issue and claims can be pursued under Section 1581(c), the antidumping jurisdiction, DOJ said in an April 4 brief (J.D. Irving, Ltd. v. United States, CIT #21-00641).

The case concerns the customs instructions that followed the final results of the 2019 administrative review of the antidumping duty order on softwood lumber products from Canada. Neither J.D. Irving nor any U.S. lumber producer requested a review of the exporter for the 2020 period of review, yet Commerce replaced J.D. Irving's 2020 AD cash deposit rate with an AD rate for the 2019 period. J.D. Irving filed suit at CIT, arguing that the lack of a request for the 2020 review signaled that both sides agreed that the cash deposit rate in effect was an accurate measure of J.D. Irving's dumping level (see 2201050029).

DOJ then moved to dismiss the case for lack of subject-matter jurisdiction since relief can be provided through a current USMCA binational panel (see 2203070023). J.D. Irving filed its case under Section 1581(i), the "residual" jurisdiction, which can only be claimed if all other 1581 sections are "manifestly inadequate." DOJ said that 1581(c) jurisdiction is available before the USMCA panel, and that panel can review the results of the second administrative review -- where J.D. Irving was assigned the 11.59% rate it now contests -- so any relief provided by the panel will not be manifestly inadequate. J.D. Irving countered by arguing that DOJ is wrong to say that J.D. Irving can get relief simply because it can raise the same legal issue before the USMCA panel (see 2203150035).

In its April 4 reply, DOJ said that J.D. Irving can request an administrative review of the entries at issue during which Commerce will actually conduct a review and provide a final dumping rate. "This matter is thus no different than any other in which a party believes its cash deposit rate should be lower: a party may either challenge the final results upon which the cash deposit instructions are based (in which case Commerce will update the cash deposit instructions if it reaches a new decision not in harmony with the final results), or request an administrative review of the suspended entries for which the cash deposits are paid," the brief said.

DOJ also said that the "true nature" of the exporter's case is twofold: it contests the issue it raised in the second administrative review, that Commerce ruled on and is now being reviewed at the USMCA panel; and it is a challenge to the cash deposit rate currently being applied to new entries, an issue that can be raised if a review covering those entries is requested. "J.D. Irving knows all this, but does not wish to wait for the completion of these statutorily prescribed administrative and judicial processes," the brief said. "Section 1581(i) is not intended for impatient parties."