AMENDMENTS TO SECTION 516A OF THE TARIFF ACT OF 1930.

SEC. 401. AMENDMENTS TO SECTION 516A OF THE TARIFF ACT OF 1930. (a) Time Limits.— Section 516A(a) of the Tariff Act of 1930 (19 U.S.C. 1516a(a)) is amended by adding at the end thereof the following new paragraph. “(5) Time limits in cases involving Canadian merchandise.— 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 commencing an action under this subsection shall not begin to run, until the 31st day after— “(A) the date of publication in the Federal Register of— “(i) notice of any determination described in paragraph (1)(B) or a determination described in clause (ii) or (iii) of paragraph (2)(B), or (ii) an antidumping or countervailing duty order based upon any determination described in clause (i) of paragraph (2)(B), or “(B) the date on which the Government of Canada receives notice of a determination described in clause (vi) of paragraph (2)(B).”. (b) Definitions.—Section 516A(f) of the Tariff Act of 1930 (19 U.S.C. 1516a(f)) is amended by adding at the end thereof the following new paragraphs: “(5) Agreement.—The term ‘Agreement’ means the United States-Canada Free-Trade Agreement. “(6) United states secretary.—The term ‘United States Secretary’ means the secretary provided for in paragraph 4 of article 1909 of the Agreement. “(7) Canadian secretary.—The term ‘Canadian Secretary’ means the secretary provided for in paragraph 5 of article 1909 of the Agreement.”. (c) Review Regarding Canadian Merchandise.—Section 516A of the Tariff Act of 1930 (19 U.S.C. 1516a) is amended by adding at the end thereof the following new subsection: “(g) Review of Countervailing Duty and Antidumping Duty Determinations Involving Canadian Merchandise.— “(1) Definition of determination.— 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), or (vi) of paragraph (2)(B) of subsection (a), if made in connection with a proceeding regarding a class or kind of Canadian 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, then, except as provided in paragraphs (3) and (4)— 102 STAT. 1879 “(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 Canada requested review by a binational panel pursuant to article 1904 of the Agreement, “(ii) a revised determination issued as a direct result of judicial review, commenced pursuant to subsection (a), if neither the United States nor Canada requested review of the original determination, or “(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. “(B) Special rule.— A determination described in subparagraph (A)(i) 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 the United States Secretary, the Canadian Secretary, all interested parties who were parties to the proceeding in connection with which the matter arises, and the administering authority or the Commission, as appropriate. Such notice is provided timely if the notice is delivered by 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. 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 Implementation Agreement Act of 1988 implementing the binational panel dispute settlement system under chapter 19 of the Agreement violates the Constitution may be brought in the United States Court of Appeals for the District of Columbia Circuit. Any action brought under this subparagraph shall be heard and determined by a 3-judge court in accordance with section 2284 of title 28, United States Code. “(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. 102 STAT. 1880 (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, United States Code, 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 Em order issued pursuant to an action brought under subparagraph (A) may be issued by a single Justice of the Supreme Court. 102 STAT. 1881 “(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, 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, 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, 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 Canadian 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 771(9), 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. “(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 shall102 STAT. 1882have 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, the provisions of subsection (c)(2) shall not apply. “(7) Implementation of international obligations under article 1904.— “(A) In general.—If a determination is referred to a binational panel or extraordinary challenge committee under the Agreement 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.—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) or (B) 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. 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. 102 STAT. 1883 “(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 Canadian 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 under article 1904 of the Agreement of a determination. “(9) Representation in panel proceedings.—In the case of binational panel proceedings convened under chapter 19 of the Agreement, 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 Canada received notice of the determination under article 1904(4) of the Agreement.”. (d) Standards of Review.— Section 516A(b) of the Tariff Act of 1930 (19 U.S.C. 1516a(b)) is amended by adding a new paragraph (3) as follows: “(3) Effect of decisions by united states-canada binational panels.—In making a decision in any action brought under subsection (a), a court of the United States is not bound by, but may take into consideration, a final decision of a binational panel or extraordinary challenge committee convened pursuant to article 1904 of the Agreement”.