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Parties Disagree on Way Forward After CAFC Reinstates Authority to Conduct Expedited CVD Reviews

Parties in a suit over the Commerce Department's expedited countervailing duty review on softwood lumber disagreed on whether the Court of International Trade should tell Commerce to exclude four Canadian exporters from the CVD order following the U.S. Court of Appeals for the Federal Circuit's order saying the agency has the authority to conduct the review. In a joint status report filed Aug. 7, the Canadian parties in the case, which include the Canadian government, said the court should tell Commerce to exclude the companies and tell CBP to stop collecting CVD cash deposits, while the petitioner said a joint status report is not the correct venue for the request (Committee Overseeing Action for Lumber International Trade Investigations or Negotiations v. U.S., CIT # 19-00122).

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The government did not take a position on the Canadian parties' requests.

The spat arose from the Federal Circuit's decision saying Commerce has the authority to conduct the expedited reviews, reversing the trade court's ruling (see 2304250061). After the opinion, CIT requested that the parties address whether any claims unaddressed by the court can be dismissed as moot, whether any additional briefing is needed to address "any intervening events prior to the court issuing an opinion on any remaining claims," and "any additional issues ... that they consider relevant to the court’s disposition of the remaining claims." All parties agreed that the remaining claims in the petitioner's complaint and raised by exporters Fontaine and Rustique are not moot.

Where the parties differ concerns whether to exclude the four exporters that were excluded by the expedited review, or to "restore the status quo ante." The petitioner, the Committee Overseeing Action for Lumber International Trade Investigations or Negotiations, cited a previous order from the trade court that said that the interests of domestic producers, foreign exporters and the U.S. government "is a characteristic of trade cases" and set them apart from other cases subject to the principle of retroactivity of court decisions. Since no parties appeal "this aspect of the decision," it appears that the ruling on the prospective application of the court's decisions here stands, the petitioner said.

Regardless, the committee called for the court to require the Canadian parties to submit a motion for the additional relief it seeks and permit the other litigants a chance to respond.