Clear That Congress Meant to Establish Expedited CVD Reviews, Canadian Parties Tell CAFC

The Uruguay Round Agreements Act taken as a whole authorizes expedited countervailing duty reviews, the governments of Quebec and New Brunswick along with six Canadian companies argued in a March 8 reply brief at the U.S. Court of Appeals for the Federal Circuit. When taking into account the context of the URAA, its legislative history and the legislative process through which the URAA was adopted, it's clear that Congress meant to establish an expedited review process, the Canadian parties argued.

The plaintiff-appellants argued that the URAA's Statement of Administrative Action's clear inclusion of expedited reviews shows that the authorization for the Commerce Department to issue "necessary" regulations includes expedited reviews. Responding to the Committee Overseeing Action for Lumber International Trade Investigations or Negotiations, the plaintiff-appellants said the appellees are making a "series of arguments that are irrelevant to the issues raised, or simply wrong."

The case stems from a January 2018 CVD order on certain softwood lumber from Canada. In March of that year, Commerce conducted an expedited CVD review for various Canadian lumber companies that were assigned the all-others rate. The Canadian producers received de minimis CVD rates as a result, rendering them exempt from the order. However, the question of whether Commerce had the right to conduct the expedited review loomed over the proceedings. CIT said there wasn't and that Section 103(a) of the URAA didn't work as a legal home for Commerce's regulation establishing the reviews (see 2108190002).

The Canadian parties appealed the decision to the Federal Circuit. In their opening brief, the plaintiff-appellants pushed for Section 103(a) as justification for the process, since it provides for officers of the U.S. government to issue regulations necessary to ensure that any part of the URAA is "appropriately implemented" (see 2112280025). This section is relevant since the U.S. signed the World Trade Organization Agreement on Subsidies and Countervailing Measures, a part of the URAA, which requires signatories to provide a procedure in their domestic CVD laws where non-individually examined respondents can get an expedited review.

The committee responded by arguing that the legislative history also shows that Congress didn't anticipate that additional administrative proceedings, including the CVD expedited reviews, were necessary for the SCM Agreement (see 2202030028). The committee said the URAA's SAA only provides for "new shipper" reviews -- a claim deemed "meritless" by the Canadian parties.

"The SAA was part of the URAA legislative package passed by Congress," the brief said. "It provides that expedited reviews were intended to be part of U.S. CVD practice. ... Commerce and the Canadian Parties explained that this provision mandates that Commerce provide an expedited review mechanism for exporters that exported during Commerce’s investigation period but were not chosen to be individually examined as mandatory or voluntary respondents."

The committee never engaged with the "central point" of the case, which is the need to conduct a "full statutory-construction analysis under Chevron" of Commerce's authority, the plaintiff-appellants argued. The committee never addresses that the URAA was passed under "fast track" trade agreement authority, the negotiations between the executive and legislative branches in setting up the URAA and court precedent upholding an agency's power under a different fast track statute to issue regulations that implement parts of that agreement without any corresponding statutory change. Due to this, the committee whiffs on the key legal questions in this matter and bases its reply in irrelevant matters, the brief said.