US to Appear as Amicus in CAFC Case on Expedited CVD Reviews

The U.S. on July 14 appeared in a case at the U.S. Court of Appeals for the Federal Circuit over whether the Commerce Department has the statutory authority to conduct expedited countervailing duty reviews. The court in June invited the U.S. to file an amicus brief after it failed to appear to that point (see 2206100045). In response, Elizabeth Speck at DOJ asked the court for another 92 days to file the amicus brief, filing an unopposed motion for extension of time. In the brief, Speck said that the additional 92 days is necessary since the U.S. has decided not to participate in the appeal.

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).

The appellate court asked that the U.S. amicus brief weigh in on whether Commerce can conduct these expedited reviews and whether Commerce's interpretation of the requirements in the Agreement on Subsidies and Countervailing Measures reflected in its regulations is correct. The U.S. in its extension motion said that Commerce is still evaluating its position, but that a further 92 days will give the Solicitor General enough time to make her decision and to prepare the amicus brief.