Summary of a Recent
Judicial Development in
International Trade

Judicial Review of Determination of Scope
of Antidumping Investigation

Emilie H. Leibovitch
National AgLaw Center Graduate Assistant

In Desert Glory, Ltd. v. United States, 368 F. Supp. 2d 1334 (Ct. Int'l Trade 2005), the United States Court of International Trade held that the 20-day requirement to provide notice of intent to seek judicial review of a determination of the scope of antidumping investigations begins to accrue upon the receipt of the scope determination.

Desert Glory, Ltd., a Mexican producer and exporter, and a U.S. importer of cocktail tomatoes, challenged a determination issued by the United States Department of Commerce declaring that cocktail tomatoes were to be covered by the pending antidumping investigation of fresh tomatoes from Mexico initiated in 1996. Desert Glory, Inc., 368 F. Supp. 2d. at 1335. Cocktail tomatoes previously had been excluded from the investigation. See id.

The Government moved to dismiss the complaint arguing the plaintiff failed to give notice within the time allotted pursuant to NAFTA. See id. at 1335, 1337. According to NAFTA and the federal law implementing its provisions, parties have 30 days from receipt of the determination to decide whether to seek review before a NAFTA binational panel or whether to seek judicial review. See id. at 1337. For those plaintiffs who seek judicial review, 19 U.S.C. § 1516a(g)(3)(B) provides that the party must give a timely notice of intent within 20 days of the last day of the 30 days during which a party can seek binational panel review. Id. at 1337. The record showed that plaintiff filed its complaint 55 days after the scope determination issuance and 43 days after the Federal Register publication of the notice. See id. at 1337.

The question was whether the 20-day period for giving notice of intent to commence judicial review was to run concurrently with the 30-day period for seeking review before a NAFTA binational panel. Id. at 1337-38. Plaintiff argued the 20-day period started running after the 30-day period, while the Government claimed that the 20 days started running at the same time as the 30 days, which was at the receipt of notice of the scope determination. See id. at 1337.

The court held that the plain language of the statute, the legislative history, as well as the case law supported the Government's interpretation. Since the statute stated that parties could not seek judicial review until the first day of the time period during which parties could seek binational panel review, this meant that the time periods for both judicial review and binational panel review were to start at the same time. See id. at 1338. Because plaintiff failed to give timely notice, the court dismissed the case for lack of subject matter jurisdiction. See id. at 1338-44.

The case was decided on April 27, 2005; this summary was posted Feb. 26, 2006.