CAFC Invites US to File Amicus Brief Over Whether Commerce Can Conduct Expedited CVD Reviews

The U.S. Court of Appeals for the Federal Circuit in a June 10 order invited the U.S. to file an amicus brief in a case on whether the Commerce Department can conduct expedited countervailing duty reviews. The plaintiff-appellants, led by Fontaine Inc., filed their opening brief in February, seeking statutory cover for Commerce to perform the expedited reviews (Committee Overseeing Action for Lumber International Trade Investigations or Negotiations v. United States, Fed. Cir. #22-1021).

The U.S. has yet to appear in the case, leading to the court filing the sua sponte order inviting the U.S. to address whether Commerce has the authority to engage in expedited CVD reviews. The court also invited the U.S. to comment on whether Commerce's interpretation of the requirements in the Agreement on Subsidies and Countervailing Measures reflected in its regulations is correct.

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 had originally been assigned the all-others rate. The Canadian producers received de minimis CVD rates as a result, rendering them exempt from the order. However, the Court of International Trade subsequently ruled Commerce did not have the authority to conduct the proceeding and that Section 103(a) of the Uruguay Round Agreements Act didn't work as a legal home for Commerce's regulation establishing the reviews (see 2108190002).