US Moves to Toss Suit on Critical Circumstances on Burma Mattresses for Lack of Standing

The U.S. on Sept. 24 moved to dismiss mattress importer Pay Less Here's suit on the International Trade Commission's critical circumstances finding on mattresses from Burma, saying the company failed to file an entry of appearance in the proceeding. The government said that, as a result of this failure, the company isn't an "interested party" that can challenge the determination at the Court of International Trade (Pay Less Here v. U.S., CIT # 24-00152).

In 2023, various U.S. mattress makers filed antidumping and countervailing duty petitions and critical circumstances allegations on mattresses from various countries, including Burma. While Pay Less Here submitted a questionnaire response in the critical circumstances proceeding on Burma, it never submitted an entry of appearance to take part in the ITC's investigations, as required by commission rules.

The Commerce Department in the AD investigation said Burmese mattresses are sold below value in the U.S. market, while the ITC concurrently said critical circumstances existed for Burmese imports. As a result of both proceedings, Commerce assessed retroactive duties on the mattresses from Burma. The present suit followed, with Pay Less Here claiming that the import volume of Burmese mattresses couldn't "seriously undermine the remedial effect" of the AD order (see 2409120057).

The government now challenges Pay Less Here's standing to sue, claiming that it never filed an entry of appearance at the commission and thus isn't an "interested party" that can take it to court under the law. The government said Commerce and the ITC filed notices in the Federal Register, meaning Pay Less Here "was, or should have been, fully aware by the time the Commission scheduled the final phase of its investigation that petitioners had filed a critical circumstances allegation" for goods from Burma and that Commerce reached a preliminary critical circumstances finding on these goods.

The importer said its questionnaire filing is enough to give it standing at the trade court. In response, the ITC said it issues questionnaires to all U.S. producers, importers of the good in question, producers from subject countries and all significant buyers of the product under consideration. The commission gets a lot of questionnaire submissions as a result, making the filing of a response not enough to make a company an interested party, the brief said.

Pay Less Here's position "would thwart the Commission’s explicit regulatory requirement for participation as a party and would lead to the untoward result of allowing any of the 170 firms that did not file an entry of appearance to qualify as parties to the proceeding when they otherwise failed to participate," the government argued.

The ITC's regulation doesn't require a party to the proceeding to engage in active participation, unlike Commerce. Rather, it only requires the "low bar" of filing an entry of appearance. Given that the importer failed to clear this low bar, it shouldn't be given standing, the government said.