CIT Has Jurisdiction to Hear Case Over Denial of Scope Ruling Request, Plaintiffs Tell Trade Court
The Court of International Trade should reject the U.S.'s motion to dismiss a case challenging the Commerce Department's denial of a request to issue a scope ruling since the motion is "factually and legally inaccurate," plaintiffs led by Zhejiang Yuhua Timber Co. said in an April 1 brief. The plaintiffs said that the U.S.'s position that jurisdiction would be established at the end of a changed circumstances review requested by the plaintiffs is "plainly without any factual basis and purely speculative" (Zhejiang Yuhua Timber Co. v. United States, CIT #21-00502).
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Three companies, Yuhua, A-Timber Flooring Company and Mullican Flooring Co., challenged Commerce's decision to not undertake a scope inquiry as part of the antidumping duty investigation on multilayered wood flooring from China (see 2109210059). In the investigation, Commerce found a zero percent dumping margin for Yuhua, excluding it from the order. Nevertheless, the respondent had requested the scope ruling from Commerce to confirm that its wood flooring products imported by A-Timber are excluded from the order. After the request was denied, the plaintiffs then requested a changed circumstances review seeking the same result. The agency then initiated the review. Proceedings are ongoing.
DOJ moved to dismiss the scope ruling denial challenge, arguing that Commerce's move to deny the scope ruling request is not a reviewable decision (see 2203010043). DOJ also argued that the "true nature" of the plaintiffs' request is whether A-Timber should benefit from Yuhua's exclusion from the order and not truly a matter of whether a product is subject to the order. Jurisdiction will instead be available once Commerce has completed its changed circumstances review, DOJ said.
The plaintiffs then filed their brief contesting the U.S.'s position. "Commerce has not yet rendered its decision in the changed circumstances review, so neither the attorneys for Plaintiffs nor for the government know the basis upon which Commerce will accept, or deny, Plaintiffs’ request for relief in that proceeding," the brief said. "In short, the government has no basis whatsoever upon which to assure Plaintiffs or this Court that Plaintiffs will receive complete relief in the changed circumstances proceeding."
Yuhua, A-Timber and Mullican went on to argue that jurisdiction does indeed exist under Section 1581(c), the court's antidumping and countervailing duty jurisdiction, even though they have requested a stay at the court until Commerce issues a final decision on the changed circumstances review. "While Plaintiffs continue to believe that a scope proceeding is a more appropriate means of addressing the problem, Plaintiffs have no interest in a theoretical debate about which approach is more appropriate," the brief said. "Because the changed circumstances review could render this action moot, Plaintiffs continue to believe that this action should be held in abeyance until the conclusion of the changed circumstances review."