Commerce Finds Deadline for Scope Ruling Lawsuits Runs From Physical Mailing, Not Email
The 30-day deadline for lawsuits challenging Commerce Department scope rulings is triggered only by physical mailing by post, and not by email, the Court of International Trade said in a July 1 decision that also sustained Commerce’s determination that aluminum pallets made of 6-series alloys are covered by antidumping and countervailing duties on aluminum extrusions from China.
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The statute on CIT challenges of AD/CVD proceedings says any lawsuits on scope rulings must be filed within 30 days after “the date of mailing of a determination.” The scope ruling at issue in this case was issued in June 2017, after which Commerce almost immediately sent an email notification that the ruling was posted to the agency’s ACCESS database. But through an oversight, the actual mail notification did not get sent by post until March 2018. Perfectus filed its lawsuit in April 2018, within 30 days of the mailing by post.
The Aluminum Extrusions Fair Trade Committee, which represents domestic producers and originally requested the AD/CVD orders, sought to dismiss Perfectus’ challenge of the scope ruling. It said an email constitutes “mailing of a determination,” so the challenge should have been filed within 30 days of the June 2017 email. AEFTC argued CIT doesn’t have jurisdiction because Perfectus didn’t meet the legal requirements to challenge a scope ruling.
CIT disagreed. The relevant legal provision, 19 USC 1516a, “specifies the terms and conditions upon which the United States has waived its sovereign immunity in consenting to be sued,” the trade court said. “Where a waiver of sovereign immunity is at issue, the language of the statute must be strictly construed, and any ambiguities resolved in favor of immunity,” it said. Here, a strict construction limits the definition of “mailing” to a physical, hand-mailing -- extant in 1984 when the legislation was enacted -- as opposed to an electronic missive (not then available),” CIT said.
AEFTC had argued Perfectus waited an “unreasonable amount of time” before filing its lawsuit. But 19 USC 1516a “does not contain a diligence requirement,” and in any case, Perfectus “notified Commerce in August 2017 that it had yet to receive a physical mailing of the final scope ruling” and “even threatened litigation to compel the mailing.”
But turning to the scope ruling itself, CIT found against Perfectus and held the importer’s aluminum pallets are plainly covered by AD/CV duties. The pallets are made of 6-series extrusions, which are explicitly covered by the language of the AD/CVD orders. The trade court also found that they don’t qualify for the “finished merchandise” kit exemption to aluminum extrusions duties because they are entirely made of aluminum extrusions, while goods qualifying for the exclusion only have extrusions “as parts.”
(Perfectus Aluminum, Inc. v. U.S., Slip Op. 19-79, CIT # 18-00085, dated 07/01/19, Judge Katzmann)