19 U.S.C. § 1516 — Petitions by domestic interested parties

Page 227 TITLE 19—CUSTOMS DUTIES § 1516 Statutory Notes and Related Subsidiaries CHANGE OF NAME ‘‘Commissioner of U.S. Customs and Border Protec- tion’’ substituted for ‘‘Commissioner of Customs’’ wherever appearing in subsec. (c) on authority of sec- tion 802(d)(2) of Pub. L. 114–125, set out as a note under section 211 of Title 6, Domestic Security. EFFECTIVE DATE OF 2004 AMENDMENT Amendment by Pub. L. 108–429 applicable to merchan- dise entered, or withdrawn from warehouse for con- sumption, on or after the 15th day after Dec. 3, 2004, see section 2108 of Pub. L. 108–429, set out as a note under section 1401 of this title. EFFECTIVE DATE OF 1996 AMENDMENT Amendment by Pub. L. 104–295 applicable as of Dec. 8, 1993, see section 3(b) of Pub. L. 104–295, set out as a note under section 1321 of this title. EFFECTIVE DATE OF 1980 AMENDMENT Amendment by Pub. L. 96–417 effective Nov. 1, 1980, and applicable with respect to civil actions pending on or commenced on or after such date, see section 701(a) of Pub. L. 96–417, set out as a note under section 251 of Title 28, Judiciary and Judicial Procedure. EFFECTIVE DATE OF 1979 AMENDMENT Amendment by Pub. L. 96–39 effective Jan. 1, 1980, see sections 1002 and 107 of Pub. L. 96–39, set out as Effec- tive Date notes under sections 1516a and 1671 of this title, respectively. EFFECTIVE DATE OF 1970 AMENDMENT For effective date of amendment by Pub. L. 91–271, see section 203 of Pub. L. 91–271, set out as a note under section 1500 of this title. TRANSFER OF FUNCTIONS For transfer of functions, personnel, assets, and li- abilities of the United States Customs Service of the Department of the Treasury, including functions of the Secretary of the Treasury relating thereto, to the Sec- retary of Homeland Security, and for treatment of re- lated references, see sections 203(1), 551(d), 552(d), and 557 of Title 6, Domestic Security, and the Department of Homeland Security Reorganization Plan of Novem- ber 25, 2002, as modified, set out as a note under section 542 of Title 6. For establishment of U.S. Customs and Border Protection in the Department of Homeland Se- curity, treated as if included in Pub. L. 107–296 as of Nov. 25, 2002, see section 211 of Title 6, as amended gen- erally by Pub. L. 114–125, and section 802(b) of Pub. L. 114–125, set out as a note under section 211 of Title 6. REVIEW OF PROTESTS IN IMPORT SURCHARGE CASES Pub. L. 93–618, title VI, § 611, Jan. 3, 1975, 88 Stat. 2075, provided that: ‘‘Notwithstanding the provisions of sec- tion 515(a) of the Tariff Act of 1930 (19 U.S.C. 1515(a)), in the case of any protest under section 514 of such Act [section 1514 of this title] involving the imposition of an import surcharge in the form of a supplemental duty pursuant to Presidential Proclamation 4074, dated Au- gust 17, 1971 [formerly set out as a note preceding sec- tion 1202 of this title], the time for review and allowing or denying the protest shall not expire until five years from the date the protest was filed in accordance with such section 514 [section 1514 of this title].’’ Executive Documents TRANSFER OF FUNCTIONS Functions of Secretary of the Treasury under this section insofar as they relate to any protest, petition, or notice of desire to contest described in section 1002(b)(1) of the Trade Agreements Act of 1979, set out as a note under section 1516a of this title, transferred to Secretary of Commerce pursuant to Reorg. Plan No. 3 of 1979, § 5(a)(1)(D), 44 F.R. 69275, 93 Stat. 1381, eff. Jan. 2, 1980, as provided by section 1–107(a) of Ex. Ord. No. 12188, Jan. 2, 1980, 45 F.R. 993, set out as notes under section 2171 of this title. § 1516. Petitions by domestic interested parties (a) Request for classification and rate of duty; petition (1) The Secretary shall, upon written request by an interested party furnish the classification and the rate of duty imposed upon designated imported merchandise of a class or kind manu- factured, produced, or sold at wholesale by such interested party. If the interested party believes that the appraised value, the classification, or rate of duty is not correct, it may file a petition with the Secretary setting forth— (A) a description of the merchandise, (B) the appraised value, the classification, or the rate of duty that it believes proper, and (C) the reasons for its belief. (2) As used in this section, the term ‘‘inter- ested party’’ means a person who is— (A) a manufacturer, producer, or wholesaler in the United States; (B) a certified union or recognized union or group of workers which is representative of an industry engaged in the manufacture, produc- tion, or wholesale in the United States; or (C) a trade or business association a major- ity of whose members are manufacturers, pro- ducers, or wholesalers in the United States, of goods of the same class or kind as the des- ignated imported merchandise. Such term in- cludes an association, a majority of whose mem- bers is composed of persons described in sub- paragraph (A), (B), or (C). (3) Any producer of a raw agricultural product who is considered under section 1677(4)(E) of this title to be part of the industry producing a proc- essed agricultural product of the same class or kind as the designated imported merchandise shall, for purposes of this section, be treated as an interested party producing such processed ag- ricultural product. (b) Determination on petition If, after receipt and consideration of a petition filed by such an interested party, the Secretary determines that the appraised value, the classi- fication, or rate of duty is not correct, he shall determine the proper appraised value, classifica- tion, or rate of duty and shall notify the peti- tioner of his determination. All such merchan- dise entered for consumption or withdrawn from warehouse for consumption more than thirty days after the date such notice to the petitioner is published in the weekly Customs Bulletin shall be appraised, classified, or assessed as to the rate of duty in accordance with the Sec- retary’s determination. (c) Contest by petitioner of appraised value, clas- sification, or rate of duty If the Secretary determines that the appraised value, classification, or rate of duty with re- spect to which a petition was filed pursuant to subsection (a) of this section is correct, he shall notify the petitioner. If dissatisfied with the de- Page 228 TITLE 19—CUSTOMS DUTIES § 1516 termination of the Secretary, the petitioner may file with the Secretary, not later than thir- ty days after the date of the notification, notice that it desires to contest the appraised value, classification, or rate of duty. Upon receipt of notice from the petitioner, the Secretary shall cause publication to be made of his determina- tion as to the proper appraised value, classifica- tion, or rate of duty and of the petitioner’s de- sire to contest, and shall thereafter furnish the petitioner with such information as to the en- tries and consignees of such merchandise, en- tered after the publication of the determination of the Secretary, at such ports of entry des- ignated by the petitioner in his notice of desire to contest, as will enable the petitioner to con- test the appraised value, classification, or rate of duty imposed upon such merchandise in the liquidation of one such entry at such port. The Secretary shall direct the appropriate customs officer at such ports to immediately notify the petitioner by mail when the first of such entries is liquidated. (d) Appraisal, classification, and liquidation of entries of merchandise covered by published decisions of Secretary Notwithstanding the filing of an action pursu- ant to chapter 169 of title 28, merchandise of the character covered by the published decision of the Secretary (when entered for consumption or withdrawn from warehouse for consumption on or before the date of publication of a decision of the United States Court of International Trade or of the United States Court of Appeals for the Federal Circuit, not in harmony with the pub- lished decision of the Secretary) shall be ap- praised or classified, or both, and the entries liq- uidated, in accordance with the decision of the Secretary and, except as otherwise provided in this chapter, the final liquidations of these en- tries shall be conclusive upon all parties. (e) Consignee or his agent as party in interest before the Court of International Trade The consignee or his agent shall have the right to appear and to be heard as a party in interest before the United States Court of International Trade. (f) Appraisement, classification, and assessment of duty of merchandise covered by published decision of Secretary in accordance with final judicial decision of Court of Inter- national Trade or Court of Appeals for the Federal Circuit sustaining cause of action in whole or in part; suspension of liquidation of entries; publication 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, mer- chandise of the character covered by the pub- lished decision of the Secretary, which is en- tered for consumption or withdrawn from ware- house for consumption after the date of publica- tion in the Federal Register by the Secretary or the administering authority of a notice of the court decision, shall be subject to appraisement, classification, and assessment of duty in accord- ance with the final judicial decision in the ac- tion, and the liquidation of entries covering the merchandise so entered or withdrawn shall be suspended until final disposition is made of the action, whereupon the entries shall be liq- uidated, or if necessary, reliquidated in accord- ance with the final decision. Such notice of the court decision shall be published within ten days from the date of the issuance of the court deci- sion. (g) Regulations implementing required proce- dures Regulations shall be prescribed by the Sec- retary to implement the procedures required under this section. (June 17, 1930, ch. 497, title IV, § 516, 46 Stat. 735; June 25, 1938, ch. 679, § 17(a), 52 Stat. 1084; June 25, 1948, ch. 646, § 39, 62 Stat. 992; Pub. L. 91–271, title II, § 209, June 2, 1970, 84 Stat. 286; Pub. L. 93–618, title III, §§ 321(f)(1), 331(b), Jan. 3, 1975, 88 Stat. 2048, 2052; Pub. L. 96–39, title X, § 1001(b)(1), July 26, 1979, 93 Stat. 303; Pub. L. 96–417, title VI, §§ 601(6), 607, Oct. 10, 1980, 94 Stat. 1744, 1745; Pub. L. 97–164, title I, § 163(a)(1), Apr. 2, 1982, 96 Stat. 49; Pub. L. 99–514, title XVIII, § 1888(5), Oct. 22, 1986, 100 Stat. 2925; Pub. L. 100–418, title I, § 1326(d)(3), Aug. 23, 1988, 102 Stat. 1204.) Editorial Notes PRIOR PROVISIONS Provisions similar to those in this section were con- tained in act Sept. 21, 1922, ch. 356, title IV, § 516, 42 Stat. 970. That section was superseded by section 516 of act June 17, 1930, comprising this section, and repealed by section 651(a)(1) of the 1930 act. AMENDMENTS 1988—Subsec. (a)(3). Pub. L. 100–418 added par. (3). 1986—Subsec. (a)(2). Pub. L. 99–514 inserted ‘‘Such term includes an association, a majority of whose members is composed of persons described in subpara- graph (A), (B), or (C).’’ 1982—Subsecs. (d), (f). Pub. L. 97–164 substituted ‘‘Court of Appeals for the Federal Circuit’’ for ‘‘Court of Customs and Patent Appeals’’. 1980—Subsec. (a). Pub. L. 96–417, § 607(a), designated existing provisions as par. (1), redesignated as subpars. (A), (B), and (C), former pars. (1), (2), and (3), struck out ‘‘(as defined in section 1677(9)(C), (D), and (E) of this title)’’ after ‘‘interested party’’, covered in par. (2), and added par. (2). Subsec. (d). Pub. L. 96–417, §§ 601(6), 607(b), redesig- nated the United States Customs Court as the United States Court of International Trade and substituted reference to chapter 169 for section 2632 of title 28. Subsecs. (e), (f). Pub. L. 96–417, § 601(6), redesignated the United States Customs Court as the United States Court of International Trade. 1979—Pub. L. 96–39 completely revised the section to provide an expedited process for judicial review of an appealable determination, expanded the size of the group of parties having standing to obtain review of an appealable determination, and, in the process, revised subsecs. (a), (b), and (c), redesignated former subsecs. (e), (f), (g), and (h) as (d), (e), (f), and (g), and struck out former subsec. (d) relating to the contest of the Sec- retary’s determination that foreign merchandise was not being sold in the United States at less than fair value or that bounty or grant was not being paid. 1975—Subsec. (a). Pub. L. 93–618, § 331(b), inserted pro- visions relating to additional duty described in section 1303 of this title (to be known as ‘‘countervailing du- ties’’) and to special duty described in section 161 of this title (to be known as ‘‘antidumping duties’’). Subsecs. (b), (c). Pub. L. 93–618, § 331(b), inserted pro- visions relating to countervailing duties and anti- dumping duties. Page 229 TITLE 19—CUSTOMS DUTIES § 1516 Subsecs. (d) to (h). Pub. L. 93–618, § 321(f)(1), added subsec. (d) and redesignated subsecs. (d) to (g) as (e) to (h), respectively. 1970—Subsec. (a). Pub. L. 91–271 substituted provi- sions requiring the Secretary to furnish to the Amer- ican manufacturer, producer, or wholesaler the classi- fication, and the rate of duty, if any, imposed upon des- ignated imported merchandise, and provisions author- izing the American manufacturer, etc., to file a protest with the Secretary if the appraised value is too low, the classification is not correct, or the proper rate of duty is not being assessed, for provisions setting forth the procedure for the determination of a protest by an American manufacturer, producer, or wholesaler that the appraised value of any imported merchandise of a class or kind manufactured, produced, or sold at whole- sale by him is too low. Subsec. (b). Pub. L. 91–271 substituted provisions au- thorizing the Secretary to determine the proper ap- praised value, classification, or rate of duty of the im- ported merchandise, and to notify the American manu- facturer, producer, or wholesaler of his determination, for provision setting forth the procedure for the deter- mination of a protest by an American manufacturer, producer, or wholesaler that the classification of, and the rate of duty, if any, is not proper. Subsec. (c). Pub. L. 91–271 substituted provisions set- ting forth the procedure for the petitioner to contest the decisions of the Secretary with respect to a peti- tion filed pursuant to subsec. (a) of this section, for provisions requiring the collector to mail to the con- signee or his agent a copy of every appeal and every protest filed by an American manufacturer, producer, or wholesaler, and authorizing such consignee or his agent to appear and be heard as a party in interest be- fore the Customs Court. Subsecs. (d) to (g). Pub. L. 91–271 added subsecs. (d) to (g). 1948—Subsec. (b). Act June 25, 1948, repealed last sen- tence relating to procedure of proceeding over all other cases on Customs Court docket. See sections 2602 and 2638 of Title 28, Judiciary and Judicial Procedure. Subsec. (c). Act June 25, 1948, repealed last sentence relating to finality of Customs Court’s decision. See section 2637 of Title 28. Subsec. (d). Act June 25, 1948, repealed subsec. (d) re- lating to inspection of documents. See section 2634 of Title 28. 1938—Subsec. (b). Act June 25, 1938, amended subsec. (b) generally. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1988 AMENDMENT Amendment by Pub. L. 100–418 applicable with re- spect to investigations initiated after Aug. 23, 1988, and to reviews initiated under section 1673e(c) or 1675 of this title after Aug. 23, 1988, see section 1337(b) of Pub. L. 100–418, set out as a note under section 1671 of this title. EFFECTIVE DATE OF 1982 AMENDMENT Amendment by Pub. L. 97–164 effective Oct. 1, 1982, see section 402 of Pub. L. 97–164, set out as a note under section 171 of Title 28, Judiciary and Judicial Proce- dure. EFFECTIVE DATE OF 1980 AMENDMENT Amendment by Pub. L. 96–417 effective Nov. 1, 1980, and applicable with respect to civil actions pending on or commenced on or after such date, see section 701(a) of Pub. L. 96–417, set out as a note under section 251 of Title 28, Judiciary and Judicial Procedure. EFFECTIVE DATE OF 1979 AMENDMENT Amendment by Pub. L. 96–39 effective Jan. 1, 1980, see sections 1002 and 107 of Pub. L. 96–39, set out as Effec- tive Date notes under sections 1516a and 1671 of this title, respectively. EFFECTIVE DATE OF 1975 AMENDMENT Pub. L. 93–618, title III, § 321(g)(3), Jan. 3, 1975, 88 Stat. 2049, provided that: ‘‘The amendment made by sub- section (f) [amending this section and sections 2631 and 2632 of Title 28, Judiciary and Judicial Procedure] shall apply with respect to determinations under section 201 of the Antidumping Act, 1921 [section 160 of this title], resulting from questions of dumping raised or pre- sented on or after the date of the enactment of this Act [Jan. 3, 1975].’’ Amendment by section 331(b) of Pub. L. 93–618 effec- tive Jan. 3, 1975, see section 331(d)(1) of Pub. L. 93–618, set out as a note under section 1315 of this title. EFFECTIVE DATE OF 1970 AMENDMENT For effective date of amendment by Pub. L. 91–271, see section 203 of Pub. L. 91–271, set out as a note under section 1500 of this title. EFFECTIVE DATE OF 1948 AMENDMENT Act June 25, 1948, ch. 646, § 38, 62 Stat. 992, provided that the amendment made by that act is effective Sept. 1, 1948. EFFECTIVE DATE OF 1938 AMENDMENT Amendment by act June 25, 1938, effective on thir- tieth day following June 25, 1938, except as otherwise specifically provided, see section 37 of act June 25, 1938, set out as a note under section 1401 of this title. PLAN AMENDMENTS NOT REQUIRED UNTIL JANUARY 1, 1989 For provisions directing that if any amendments made by subtitle A or subtitle C of title XI [§§ 1101–1147 and 1171–1177] or title XVIII [§§ 1801–1899A] of Pub. L. 99–514 require an amendment to any plan, such plan amendment shall not be required to be made before the first plan year beginning on or after Jan. 1, 1989, see section 1140 of Pub. L. 99–514, as amended, set out as a note under section 401 of Title 26, Internal Revenue Code. APPLICATION OF SUBSECTION (b) TO COMPLAINTS Act June 25, 1938, ch. 679, § 17(b), (c), 52 Stat. 1086, as amended by act June 16, 1951, ch. 141, § 9(b), 65 Stat. 75, provided that: ‘‘(b) The provisions of subsection (b) of section 516 of the Tariff Act of 1930 [this section], as amended by this act, shall apply only in the case of complaints filed after the effective date of this act [see Effective Date of 1938 Amendment note set out under section 1401 of this title]. The provisions of subsection (b) of section 516 of the Tariff Act of 1930, as in force prior to the ef- fective date of this act, shall continue in force with re- spect to any proceedings commenced by the filing of a complaint thereunder, except that upon the expiration of thirty days after the effective date of this act, or upon the expiration of thirty days after the date of a decision of the Secretary adverse to the complainant, whichever is the later, any such proceedings in which a protest has not been duly filed shall be deemed to have been terminated unless the complainant shall have filed with the Secretary after the effective date of this act a notice that he desires to protest the classi- fication of, or rate of duty assessed upon, the merchan- dise. ‘‘(c) [Repealed. June 16, 1951, ch. 141, § 9(b), 65 Stat. 75.]’’ Executive Documents TRANSFER OF FUNCTIONS Functions of Secretary of the Treasury under this section insofar as they relate to any protest, petition, or notice of desire to contest described in section 1002(b)(1) of the Trade Agreements Act of 1979, set out as a note under section 1516a of this title, transferred to Secretary of Commerce pursuant to Reorg. Plan No. Page 230 TITLE 19—CUSTOMS DUTIES § 1516a 1 So in original. Probably should be preceded by ‘‘section’’. 3 of 1979, § 5(a)(1)(D), 44 F.R. 69275, 93 Stat. 1381, eff. Jan. 2, 1980, as provided by section 1–107(a) of Ex. Ord. No. 11288, Jan. 2, 1980, 45 F.R. 993, set out as notes under section 2171 of this title. § 1516a. Judicial review in countervailing duty and antidumping duty proceedings (a) Review of determination (1) Review of certain determinations Within 30 days after the date of publication in the Federal Register of— (A) a determination by the administering authority, under 1671a(c) 1 or 1673a(c) of this title, not to initiate an investigation, (B) a determination by the Commission, under section 1675(b) of this title, not to re- view a determination based upon changed circumstances, (C) a negative determination by the Com- mission, under section 1671b(a) or 1673b(a) of this title, as to whether there is reasonable indication of material injury, threat of ma- terial injury, or material retardation, or (D) a final determination by the admin- istering authority or the Commission under section 1675(c)(3) of this title, an interested party who is a party to the pro- ceeding in connection with which the matter arises may commence an action in the United States Court of International Trade by filing concurrently a summons and complaint, each with the content and in the form, manner, and style prescribed by the rules of that court, contesting any factual findings or legal con- clusions upon which the determination is based. (2) Review of determinations on record (A) In general Within thirty days after— (i) the date of publication in the Federal Register of— (I) notice of any determination de- scribed in clause (ii), (iii), (iv), (v), or (viii) of subparagraph (B), (II) an antidumping or countervailing duty order based upon any determina- tion described in clause (i) of subpara- graph (B), or (III) notice of the implementation of any determination described in clause (vii) of subparagraph (B), or (ii) the date of mailing of a determina- tion described in clause (vi) of subpara- graph (B), an interested party who is a party to the proceeding in connection with which the matter arises may commence an action in the United States Court of International Trade by filing a summons, and within thir- ty days thereafter a complaint, each with the content and in the form, manner, and style prescribed by the rules of that court, contesting any factual findings or legal con- clusions upon which the determination is based. (B) Reviewable determinations The determinations which may be con- tested under subparagraph (A) are as follows: (i) Final affirmative determinations by the administering authority and by the Commission under section 1671d or 1673d of this title, including any negative part of such a determination (other than a part referred to in clause (ii)). (ii) A final negative determination by the administering authority or the Com- mission under section 1671d or 1673d of this title, including, at the option of the appel- lant, any part of a final affirmative deter- mination which specifically excludes any company or product. (iii) A final determination, other than a determination reviewable under paragraph (1), by the administering authority or the Commission under section 1675 of this title. (iv) A determination by the admin- istering authority, under section 1671c or 1673c of this title, to suspend an anti- dumping duty or a countervailing duty in- vestigation, including any final determina- tion resulting from a continued investiga- tion which changes the size of the dumping margin or net countervailable subsidy cal- culated, or the reasoning underlying such calculations, at the time the suspension agreement was concluded. (v) An injurious effect determination by the Commission under section 1671c(h) or 1673c(h) of this title. (vi) A determination by the admin- istering authority as to whether a par- ticular type of merchandise is within the class or kind of merchandise described in an existing finding of dumping or anti- dumping or countervailing duty order. (vii) A determination by the admin- istering authority or the Commission under section 3538 of this title concerning a determination under subtitle IV of this chapter. (viii) A determination by the Commis- sion under section 1675b(a)(1) of this title. (3) Exception Notwithstanding the limitation imposed by paragraph (2)(A)(i)(II) of this subsection, a final affirmative determination by the admin- istering authority under section 1671d or 1673d of this title may be contested by commencing an action, in accordance with the provisions of paragraph (2)(A), within thirty days after the date of publication in the Federal Register of a final negative determination by the Commis- sion under section 1671d or 1673d of this title. (4) Procedures and fees The procedures and fees set forth in chapter 169 of title 28 apply to an action under this section. (5) Time limits in cases involving merchandise from free trade area countries Notwithstanding any other provision of this subsection, in the case of a determination to which the provisions of subsection (g) apply, an action under this subsection may not be commenced, and the time limits for com- mencing an action under this subsection shall not begin to run, until the day specified in