Canadian Exporters Ask CIT to Reinstate Exclusion From CVD Order After CAFC Opinion

Four Canadian lumber exporters, along with their cross-owned affiliates, referred to as the "Originally Excluded Parties," asked the Court of International Trade to relieve them from the effects of a court order reinstating the countervailing duty order on softwood lumber products from Canada. The originally excluded parties said the order was based on an earlier judgment, which the U.S. Court of Appeals for the Federal Circuit reversed, concerning the legal ground for conducting expedited CVD reviews, meaning that the trade court should restore "the status quo ante that existed prior" to the order for the remainder of the case (Committee Overseeing Action for Lumber International Trade Investigations or Negotiations v. U.S., CIT Consol. # 19-00122).

In the case, Judge Mark Barnett found there was no proper statutory home for expedited CVD reviews. The Federal Circuit disagreed, saying the Commerce Department has the authority to conduct these types of reviews (see 2304250061). At issue in the present procedural dispute is whether to exclude the four exporters that were excluded by the original expedited review (see 2308070049).

The originally excluded parties said that despite a de minimis subsidy already calculated for each of them, they are "nevertheless being required to pay cash deposits as if they were subject to the CVD order" by way of an order that has been reversed. This contradicts the trade court's first rule, which said the court's rules are to be construed in a way that secures the "just, speedy, and inexpensive" resolution of every action. The current posture violates the rule since "it poses a significant hardship to the Originally Excluded Parties, which are currently required to pay cash deposit rates of 1.79%," the brief said.

The companies added that reversing their inclusion in the order "would not pose an undue burden" and that there is no current legal basis to continue imposing the order on them. While there are still claims that need to be litigated, the current situation is "akin to this Court having granted" a preliminary injunction without first establishing any of the "four factors governing such relief," the exporters said.