Canadian Lumber Exporter Says It Isn’t Barred from Bringing Case to CIT During Separate NAFTA Appeal

A Canadian exporter of softwood lumber said in a May 2 reply brief that its appeal to a NAFTA panel shouldn’t foreclose it from seeking entirely different relief at the Court of International Trade (Resolute FP Canada v. U.S., CIT # 23-00095).

Replying to opposition to its motion for summary judgment (see 2402280077), exporter Resolute said its case before a NAFTA panel discusses entirely different issues of law and challenges a different part of the overall antidumping duty proceeding. The government and petitioner cite no sources in support of its jurisdictional argument, it said.

This case deals with the recent sunset review, which is prospective, it said. The NAFTA panel is considering the initial AD investigation, which Resolute said it isn't litigating before the trade court.

Resolute also said that although there's no requirement generally for the Commerce Department to conduct reviews on an individual basis, it does have to if there is good cause. And there is good cause in Resolute’s case, it said, as the department’s use of the Cohen's d test in it was unreasonable. Commerce should have stopped using that method in its reviews because the U. S. Court of Appeals for the Federal Circuit has continually struck down its use in similar cases, it said.

The statute governing sunset reviews doesn’t define “good cause,” the exporter said. In its rejection of Resolute’s request for the order to be revoked for it alone, Commerce instead gave a “non-definition” that likens "good cause" to circumstances that are something “special,” it said.