CVD Petitioner Rails Against Canadian Exporters' Bid Seeking Retroactive Exclusions From Cash Deposits

The Court of International Trade shouldn't reinstate the Commerce Department's exclusion of four Canadian lumber exporters as part of the countervailing duty investigation on softwood lumber products from Canada, the CVD petitioner said in an Oct. 27 brief at the Court of International Trade. The petitioner, the committee Overseeing Action for Lumber International Trade Investigations or Negotiations, said that the four exporters' "mere assertions" that changed circumstances exist, warranting the retroactive exclusion of the companies, is not enough (Committee Overseeing Action for Lumber International Trade Investigations or Negotiations v. United States, CIT # 19-00122).

In the case, the trade court 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 given the appellate court's reversal (see 2308070049).

The originally excluded parties said they are "being required to pay cash deposits as if they were subject to the CVD order" by way of an order that has been reversed (see 2310100024). 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. Being forced to pay cash deposits here violates that rule, the companies said.

In response, the committee said that the companies' "own actions are inconsistent with their attempt to invoke Rule 1" since they delayed in filing the motion currently in dispute. The companies waited 60 days from the filing of a joint status report regarding the further disposition of litigation to raise the issue. "This delay runs counter to the Canadian Parties' claimed hardship," the brief said.

The committee added that the exporters failed to provide sufficient reasoning as to why relief is warranted given that the motion fails to establish changed circumstances, the petitioner argued. While the exporters argue that the Federal Circuit's reversal constitutes changed circumstances, "[m]ere assertions are not sufficient," the brief said. The parties need to offer evidence showing why the "continued operation of" the judgment imposes a significant burden justifying the present relief, the committee argued.

The Canadian companies also said that no court has pointed to anything in the CVD investigation warranting denying the benefits of the investigation during litigation. "The Canadian Parties have made no showing here that the current cash deposit requirement presents any specific burden on them, particularly where their shipments of softwood lumber may be imported by unrelated entities and purchasers," the committee replied.