§ 1516a.
(e)
Liquidation in accordance with final decision
If the cause of action is sustained in whole or in part by a decision of the United States Court of International Trade or of the United States Court of Appeals for the Federal Circuit—
(1)
entries of merchandise of the character covered by the published determination of the Secretary, the administering authority, or the Commission, which is entered, or withdrawn from warehouse, for consumption after the date of publication in the Federal Register by the Secretary or the administering authority of a notice of the court decision, and
(2)
entries, the liquidation of which was enjoined under subsection (c)(2),
shall be liquidated in accordance with the final court decision in the action. Such notice of the court decision shall be published within ten days from the date of the issuance of the court decision.
(g)
Review of countervailing duty and antidumping duty determinations involving free trade area country merchandise
(1)
“Determination” defined
For purposes of this subsection, the term “determination” means a determination described in—
(A)
paragraph (1)(B) of subsection (a), or
(B)
clause (i), (ii), (iii), (vi), or (vii) of paragraph (2)(B) of subsection (a),
if made in connection with a proceeding regarding 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 binational panel review of a determination is requested pursuant to article 1904 of the Agreement or article 10.12 of the USMCA, then, except as provided in paragraphs (3) and (4)—
(A)
the determination is not reviewable under subsection (a), and
(B)
no court of the United States has power or jurisdiction to review the determination on any question of law or fact by an action in the nature of mandamus or otherwise.
(3)
Exception to exclusive binational panel review
(A)
In general
A determination is reviewable under subsection (a) if the determination sought to be reviewed is—
(i)
a determination as to which neither the United States nor the relevant FTA country requested review by a binational panel pursuant to article 1904 of the Agreement or article 10.12 of the USMCA;
3
So in original. The semicolon probably should be a comma.
(ii)
a revised determination issued as a direct result of judicial review, commenced pursuant to subsection (a), if neither the United States nor the relevant FTA country requested review of the original determination,
(iii)
a determination issued as a direct result of judicial review that was commenced pursuant to subsection (a) prior to the entry into force of the Agreement or the USMCA,
(iv)
a determination which a binational panel has determined is not reviewable by the binational panel,
(v)
a determination as to which binational panel review has terminated pursuant to article 10.13 of the USMCA, or
(vi)
a determination as to which extraordinary challenge committee review has terminated pursuant to article 10.13 of the USMCA.
(B)
Special rule
A determination described in subparagraph (A)(i) or (iv) is reviewable under subsection (a) only if the party seeking to commence review has provided timely notice of its intent to commence such review to—
(i)
the United States Secretary and the relevant FTA Secretary;
(ii)
all interested parties who were parties to the proceeding in connection with which the matter arises; and
(iii)
the administering authority or the Commission, as appropriate.
Such notice is timely provided if the notice is delivered no later than the date that is 20 days after the date described in subparagraph (A) or (B) of subsection (a)(5) that is applicable to such determination, except that, if the time for requesting binational panel review is suspended under paragraph (8)(A)(ii) of this subsection, any unexpired time for providing notice of intent to commence judicial review shall, during the pendency of any such suspension, also be suspended. Such notice shall contain such information, and be in such form, manner, and style, as the administering authority, in consultation with the Commission, shall prescribe by regulations.
(4)
Exception to exclusive binational panel review for constitutional issues
(A)
Constitutionality of binational panel review system
An action for declaratory judgment or injunctive relief, or both, regarding a determination on the grounds that any provision of, or amendment made by, the United States-Canada Free-Trade Agreement Implementation Act of 1988 implementing the binational panel dispute settlement system under chapter 19 of the Agreement, or the United States-Mexico-Canada Agreement Implementation Act implementing the binational panel dispute settlement system under chapter 10 of the USMCA, violates the Constitution may be brought only in the United States Court of Appeals for the District of Columbia Circuit, which shall have jurisdiction of such action.
(B)
Other constitutional review
Review is available under subsection (a) with respect to a determination solely concerning a constitutional issue (other than an issue to which subparagraph (A) applies) arising under any law of the United States as enacted or applied. An action for review under this subparagraph shall be assigned to a 3-judge panel of the United States Court of International Trade.
(C)
Commencement of review
Notwithstanding the time limits in subsection (a), within 30 days after the date of publication in the Federal Register of notice that binational panel review has been completed, an interested party who is a party to the proceeding in connection with which the matter arises may commence an action under subparagraph (A) or (B) by filing an action in accordance with the rules of the court.
(D)
Transfer of actions to appropriate court
Whenever an action is filed in a court under subparagraph (A) or (B) and that court finds that the action should have been filed in the other court, the court in which the action was filed shall transfer the action to the other court and the action shall proceed as if it had been filed in the court to which it is transferred on the date upon which it was actually filed in the court from which it is transferred.
(E)
Frivolous claims
Frivolous claims brought under subparagraph (A) or (B) are subject to dismissal and sanctions as provided under section 1927 of title 28 and the Federal Rules of Civil Procedure.
(F)
Security
(i)
Subparagraph (A) actions
The security requirements of rule 65(c) of the Federal Rules of Civil Procedure apply with respect to actions commenced under subparagraph (A).
(ii)
Subparagraph (B) actions
No claim shall be heard, and no temporary restraining order or temporary or permanent injunction shall be issued, under an action commenced under subparagraph (B), unless the party seeking review first files an undertaking with adequate security in an amount to be fixed by the court sufficient to recompense parties affected for any loss, expense, or damage caused by the improvident or erroneous issuance of such order or injunction. If a court upholds the constitutionality of the determination in question in such action, the court shall award to a prevailing party fees and expenses, in addition to any costs incurred by that party, unless the court finds that the position of the other party was substantially justified or that special circumstances make an award unjust.
(G)
Panel record
The record of proceedings before the binational panel shall not be considered part of the record for review pursuant to subparagraph (A) or (B).
(H)
Appeal to Supreme Court of court orders issued in subparagraph (A) actions
Notwithstanding any other provision of law, any final judgment of the United States Court of Appeals for the District of Columbia Circuit which is issued pursuant to an action brought under subparagraph (A) shall be reviewable by appeal directly to the Supreme Court of the United States. Any such appeal shall be taken by a notice of appeal filed within 10 days after such order is entered; and the jurisdictional statement shall be filed within 30 days after such order is entered. No stay of an order issued pursuant to an action brought under subparagraph (A) may be issued by a single Justice of the Supreme Court.
(5)
Liquidation of entries
(A)
Application
In the case of a determination for which binational panel review is requested pursuant to article 1904 of the Agreement or article 10.12 of the USMCA, the rules provided in this paragraph shall apply, notwithstanding the provisions of subsection (c).
(B)
General rule
In the case of a determination for which binational panel review is requested pursuant to article 1904 of the Agreement or article 10.12 of the USMCA, entries of merchandise covered by such determination shall be liquidated in accordance with the determination of the administering authority or the Commission, if they are entered, or withdrawn from warehouse, for consumption on or before the date of publication in the Federal Register by the administering authority of notice of a final decision of a binational panel, or of an extraordinary challenge committee, not in harmony with that determination. Such notice of a decision shall be published within 10 days of the date of the issuance of the panel or committee decision.
(C)
Suspension of liquidation
(i)
In general
Notwithstanding the provisions of subparagraph (B), in the case of a determination described in clause (iii) or (vi) of subsection (a)(2)(B) for which binational panel review is requested pursuant to article 1904 of the Agreement or article 10.12 of the USMCA, the administering authority, upon request of an interested party who was a party to the proceeding in connection with which the matter arises and who is a participant in the binational panel review, shall order the continued suspension of liquidation of those entries of merchandise covered by the determination that are involved in the review pending the final disposition of the review.
(ii)
Notice
At the same time as the interested party makes its request to the administering authority under clause (i), that party shall serve a copy of its request on the United States Secretary, the relevant FTA Secretary, and all interested parties who were parties to the proceeding in connection with which the matter arises.
(iii)
Application of suspension
If the interested party requesting continued suspension of liquidation under clause (i) is a foreign manufacturer, producer, or exporter, or a United States importer, the continued suspension of liquidation shall apply only to entries of merchandise manufactured, produced, exported, or imported by that particular manufacturer, producer, exporter, or importer. If the interested party requesting the continued suspension of liquidation under clause (i) is an interested party described in subparagraph (C), (D), (E), or (F) of section 1677(9) of this title, the continued suspension of liquidation shall apply only to entries which 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
Any action taken by the administering authority or the United States Customs Service under this subparagraph shall not be subject to judicial review, and no court of the United States shall have power or jurisdiction to review such action on any question of law or fact by an action in the nature of mandamus or otherwise.
(6)
Injunctive relief
Except for cases under paragraph (4)(B), in the case of a determination for which binational panel review is requested pursuant to article 1904 of the Agreement or article 10.12 of the USMCA, the provisions of subsection (c)(2) shall not apply.
(7)
Implementation of international obligations under article 1904 of the Agreement or article 10.12 of the USMCA
(A)
Action upon 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 makes a decision remanding the determination to the administering authority or the Commission, the administering authority or the Commission shall, within the period specified by the panel or committee, take action not inconsistent with the decision of the panel or committee. Any action taken by the administering authority or the Commission under this paragraph shall not be subject to judicial review, and no court of the United States shall have power or jurisdiction to review such action on any question of law or fact by an action in the nature of mandamus or otherwise.
(B)
Application if subparagraph (A) held unconstitutional
In the event that the provisions of subparagraph (A) are held unconstitutional under the provisions of subparagraphs (A) and (H) of paragraph (4), the provisions of this subparagraph shall take effect. In such event, the President is authorized on behalf of the United States to accept, as a whole, the decision of a binational panel or extraordinary challenge committee remanding the determination to the administering authority or the Commission within the period specified by the panel or committee. Upon acceptance by the President of such a decision, the administering authority or the Commission shall, within the period specified by the panel or committee, take action not inconsistent with such decision. Any action taken by the President, the administering authority, or the Commission under this subparagraph shall not be subject to judicial review, and no court of the United States shall have power or jurisdiction to review such action on any question of law or fact by an action in the nature of mandamus or otherwise.
(8)
Requests for binational panel review
(A)
Interested party requests for binational panel review
(i)
General rule
An interested party who was a party to the proceeding in which a determination is made may request binational panel review of such determination by filing a request with the United States Secretary by no later than the date that is 30 days after the date described in subparagraph (A), (B), or (E) of subsection (a)(5) that is applicable to such determination. Receipt of such request by the United States Secretary shall be deemed to be a request for binational panel review within the meaning of article 1904(4) of the Agreement or article 10.12 of the USMCA. Such request shall contain such information and be in such form, manner, and style as the administering authority, in consultation with the Commission, shall prescribe by regulations.
(ii)
Suspension of time to request binational panel review under the USMCA
Notwithstanding clause (i), the time for requesting binational panel review shall be suspended during the pendency of any stay of binational panel review that is issued pursuant to article 10.13 of the USMCA.
(B)
Service of request for binational panel review
(i)
Service by interested party
If a request for binational panel review of a determination is filed under subparagraph (A), the party making the request shall serve a copy, by mail or personal service, on any other interested party who was a party to the proceeding in connection with which the matter arises, and on the administering authority or the Commission, as appropriate.
(ii)
Service by United States Secretary
If an interested party to the proceeding requests binational panel review of a determination by filing a request with the relevant FTA Secretary, the United States Secretary shall serve a copy of the request by mail on any other interested party who was a party to the proceeding in connection with which the matter arises, and on the administering authority or the Commission, as appropriate.
(C)
Limitation on request for binational panel review
Absent a request by an interested party under subparagraph (A), the United States may not request binational panel review of a determination under article 1904 of the Agreement or article 10.12 of the USMCA.
(9)
Representation in panel proceedings
In the case of binational panel proceedings convened under chapter 19 of the Agreement or chapter 10 of the USMCA, the administering authority and the Commission shall be represented by attorneys who are employees of the administering authority or the Commission, respectively. Interested parties who were parties to the proceeding in connection with which the matter arises shall have the right to appear and be represented by counsel before the binational panel.
(10)
Notification of class or kind rulings
In the case of a determination which is described in paragraph (2)(B)(vi) of subsection (a) and which is subject to the provisions of paragraph (2), the administering authority, upon request, shall inform any interested person of the date on which the Government of the relevant FTA country received notice of the determination under paragraph 4 of article 1904 of the Agreement or under article 10.12 of the USMCA.
(11)
Suspension and termination of suspension of article 10.12 of the USMCA
(A)
Suspension
If a special committee established under article 10.13 of the USMCA issues an affirmative finding, the Trade Representative may, in accordance with article 10.13 of the USMCA, suspend the operation of article 10.12 of the USMCA.
(B)
Termination of suspension
If a special committee is reconvened and makes an affirmative determination described in article 10.13 of the USMCA, any suspension of the operation of article 10.12 of the USMCA shall terminate.
(12)
Judicial review upon termination of binational panel or committee review under the USMCA
(A)
Notice of suspension or termination of suspension of article 10.12 of the USMCA
(i)
Notice of suspension
Upon notification by the Trade Representative or the government of a country described in subparagraph (A) or (B) of subsection (f)(9) that the operation of article 10.12 of the USMCA has been suspended in accordance with article 10.13 of the USMCA, the United States Secretary shall publish in the Federal Register a notice of suspension of article 10.12 of the USMCA.
(ii)
Notice of termination of suspension
Upon notification by the Trade Representative or the government of a country described in subparagraph (A) or (B) of subsection (f)(9) that the suspension of the operation of article 10.12 of the USMCA is terminated in accordance with article 10.13 of the USMCA, the United States Secretary shall publish in the Federal Register a notice of termination of suspension of article 10.12 of the USMCA.
(B)
Transfer of final determinations for judicial review upon suspension of article 10.12 of the USMCA
If the operation of article 10.12 of the USMCA is suspended in accordance with article 10.13 of the USMCA—
(i)
upon the request of an authorized person described in subparagraph (C), any final determination that is the subject of a binational panel review or an extraordinary challenge committee review shall be transferred to the United States Court of International Trade (in accordance with rules issued by the Court) for review under subsection (a); or
(ii)
in a case in which—
(I)
a binational panel review was completed fewer than 30 days before the suspension, and
(II)
extraordinary challenge committee review has not been requested,
upon the request of an authorized person described in subparagraph (C) which is made within 60 days after the completion of the binational panel review, the final determination that was the subject of the binational panel review shall be transferred to the United States Court of International Trade (in accordance with rules issued by the Court) for review under subsection (a).
(C)
Persons authorized to request transfer of final determinations for judicial review
A request that a final determination be transferred to the Court of International Trade under subparagraph (B) may be made by—
(i)
if the United States made an allegation under article 10.13 of the USMCA and the operation of article 10.12 of the USMCA was suspended pursuant to article 10.13 of the USMCA—
(I)
the government of the relevant country described in subparagraph (A) or (B) of subsection (f)(9),
(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 in connection with which panel review was requested, but only if the time period for filing notices of appearance in the panel review has not expired, or
(ii)
if a country described in subparagraph (A) or (B) of subsection (f)(9) made an allegation under article 10.13 of the USMCA and the operation of article 10.12 of the USMCA was suspended pursuant to article 10.13 of the USMCA—
(I)
the government of that country,
(II)
an interested party that is a person of that country and that was a party to the panel or committee review, or
(III)
an interested party that is a person of that country and that was a party to the proceeding in connection with which panel review was requested, but only if the time period for filing notices of appearance in the panel review has not expired.
(D)
Transfer for judicial review upon settlement
(i)
If the Trade Representative achieves a settlement with the government of a country described in subparagraph (A) or (B) of subsection (f)(9) pursuant to article 10.13 of the USMCA, and referral for judicial review is among the terms of such settlement, any final determination that is the subject of a binational panel review or an extraordinary challenge committee review shall, upon a request described in clause (ii), be transferred to the United States Court of International Trade (in accordance with rules issued by the Court) for review under subsection (a).
(ii)
A request referred to in clause (i) is a request made by—
(I)
the country referred to in clause (i),
(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 in connection with which panel review was requested, but only if the time for filing notices of appearance in the panel review has not expired.
([June 17, 1930, ch. 497], title IV, § 516A, as added [Pub. L. 96–39, title X, § 1001(a)], July 26, 1979, [93 Stat. 300]; amended [Pub. L. 96–417, title VI], §§ 601(7), 608, Oct. 10, 1980, [94 Stat. 1744], 1745; [Pub. L. 96–542, § 2], Dec. 17, 1980, [94 Stat. 3210]; [Pub. L. 97–164, title I, § 163(a)(2)], Apr. 2, 1982, [96 Stat. 49]; [Pub. L. 98–573, title VI, § 623(a)], Oct. 30, 1984, [98 Stat. 3040]; [Pub. L. 99–514, title XVIII, § 1888(6)], Oct. 22, 1986, [100 Stat. 2925]; [Pub. L. 100–449, title IV, § 401], Sept. 28, 1988, [102 Stat. 1878]; [Pub. L. 101–382, title I, § 134(a)(3)], Aug. 20, 1990, [104 Stat. 649]; [Pub. L. 103–182, title IV, § 411], Dec. 8, 1993, [107 Stat. 2140]; [Pub. L. 103–465, title I, § 129(e)], title II, §§ 220(b), 270(a)(1)(N), 271(b), Dec. 8, 1994, [108 Stat. 4838], 4864, 4917, 4921; [Pub. L. 104–295], §§ 20(a)(1), 21(c)(3), 22, Oct. 11, 1996, [110 Stat. 3526], 3530, 3531; [Pub. L. 109–432, div. D, title III, § 3002], Dec. 20, 2006, [120 Stat. 3173]; [Pub. L. 116–113, title IV, § 421], Jan. 29, 2020, [134 Stat. 61].)