US and Petitioner Oppose Motion for Judgment in Canadian Lumber Sunset Review Case

The 1930 Tariff Act doesn't demand the Commerce Department conduct individual reviews for exporters in sunset reviews, the government said Feb. 26 in a filing with the Court of International Trade (Resolute FP Canada v. U.S., CIT # 23-00095).

The U.S. and petitioner Committee Overseeing Action for Lumber International Trade Investigations or Negotiations opposed a motion for judgment filed by exporter Resolute FP Canada in a case challenging an expedited sunset review of the antidumping duty order on Canadian softwood lumber that ultimately left the order in place.

Contrary to what Resolute argues, Commerce shouldn't have given the exporter a company-specific review, the government and petitioner said.

Resolute claims that the Tariff Act “generally establishes a company-specific approach to dumping,” but this is not true in all cases and Resolute is misunderstanding the legal framework for sunset reviews, DOJ said. It said the Statement of Administrative Action Accompanying the Uruguay Round Agreements Act (SAA) specifies that sunset reviews are generally done on an order-wide basis.

The purpose of sunset reviews is to determine if dumping would continue upon revocation of an AD order, not, as Resolute believes, to use "as opportunities to relitigate" dumping margins determined in the order's original investigation, DOJ said. Resolute should have instead aired its disagreement with the rates when Commerce's final investigation results were released, it said.

This is indicated by the fact that the language of the law controlling sunset reviews has a separate clause by which individual companies' dumping margins may be recalculated for "good cause," the government said.

"If Congress had envisioned Commerce revisiting individual calculational decisions from earlier segments, it would not have limited the 'good cause' paragraph to 'other price, cost, market, or economic factors as it deems relevant,'" it said.

A company-specific review just for Resolute would also be against Commerce's long-standing practice, the Committee Overseeing Action said.

DOJ and the petitioner also said that Commerce’s determination in the review that dumping would occur if the order were revoked also was correct and supported by substantial evidence. Resolute and other Canadian lumber companies have continued to dump since the issuance of the order, the petitioner argued.

The petitioner also said that Resolute’s specific argument, that the department’s original dumping investigation results were wrong because Commerce used an “unlawful” differential pricing methodology, was without merit.

“Resolute’s specific challenge to Commerce’s application of this methodology in deciding whether to apply an alternative methodology to determine whether subject merchandise was sold at less than fair value in the investigation is currently pending before a binational review panel formed pursuant to the North American Free Trade Agreement,” it said.

It said Resolute was attempting to litigate its dumping margin “in two forums.”

Finally, the government said Commerce was correct in finding that Resolute didn't demonstrate “good cause” to have the department consider "other factors" as part of its likelihood determination that dumping would continue to occur if the AD order were revoked.

Resolute again argued that it had good cause because Commerce’s price differential methodology in its investigation was unlawful; but this is “entirely speculative, grounded in allegations related to separate litigation,” the government said.