Comm. Overseeing Action for Lumber Int'l Trade Investigations Or Negotiations v. United States

• Decision Date: 26 July 2019
• Docket Number: Slip Op. 19-96,Court No. 19-00122
• Parties: COMMITTEE OVERSEEING ACTION FOR LUMBER INTERNATIONAL TRADE INVESTIGATIONS OR NEGOTIATIONS, Plaintiff, v. UNITED STATES, Defendant, and Fontaine Inc., et al., Defendant-intervenors.
• Court: U.S. Court of International Trade

393 F.Supp.3d 1271

COMMITTEE OVERSEEING ACTION FOR LUMBER INTERNATIONAL TRADE INVESTIGATIONS OR NEGOTIATIONS, Plaintiff,

v.UNITED STATES, Defendant,andFontaine Inc., et al., Defendant-intervenors.

Slip Op. 19-96

Court No. 19-00122

United States Court of International Trade.

July 26, 2019

Sophia J.C. Lin, Picard Kentz & Rowe LLP, of Washington, DC, argued for Plaintiff Commmittee Overseeing Action for Lumber International Trade Investigations or Negotiations. With her on the brief were Lisa W. Wang, Andrew W. Kentz, David A. Yocis, Nathanial M. Rickard, Heather N. Doherty, and Zachary J. Walker.

Patricia M. McCarthy, Assistant Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, argued for Defendant United States. With her on the brief were Joseph H. Hunt, Assistant Attorney General, Jeanne E. Davidson, Director, and Stephen C. Tosini, Senior Trial Counsel. Of counsel on the brief were Jessica DiPietro and Nikki Kalbing.

Elliot J. Feldman, Baker & Hostetler, LP, of Washington, DC, argued for Defendant-Intervenor Fontaine, Inc. With him on the brief were Michael S. Snarr, John J. Burke, Mark B. Lehnardt, Lindita V. Ciko Torza, and Jake R. Frischknecht.

Lynn G. Kamarck, Hughes Hubbard & Reed LLP, of Washington, DC, argued for Defendant-Intervenor the Government of Canada. With her on the brief were Joanne E. Osendarp, Dean A. Pinkert, Alan G. Kashdan, Daniel M. Witkowski, and Stephen R. Halpin, III.

Jonathan M. Zielinski, Cassidy Levy Kent (USA) LLP, of Washington, DC, argued for Defendant-Intervenor Scierie Alexandre Lemay & Fils Inc. With him on the brief were Yohai Baisburd, Myles S. Getlan, and James E. Ransdell.

OPINION AND ORDER

Barnett, Judge:

Plaintiff, Committee Overseeing Action for Lumber International Trade Investigations or Negotiations ("the Coalition" or "Plaintiff") challenges the final results of the countervailing duty expedited review of certain softwood lumber products from Canada. Compl. ¶¶ 1-2, ECF No. 2;¹ Certain Softwood Lumber Products From Canada , 84 Fed. Reg. 32,121 (Dep't Commerce July 5, 2019) (final results of countervailing duty expedited review) (" Final Results of Expedited Review "), and accompanying Issues and Decision Mem. ("I&D Mem."), C-122-858 (June 28, 2019), available at https://enforcement.trade.gov/frn/summary/canada/2019-14338-1.pdf (last accessed July 26, 2019).

This matter is now before the court on Plaintiff's motion for a temporary restraining order ("TRO") and preliminary injunction. Pl.'s Mot. for Temporary Restraining Order and for Prelim. Inj. ("Pl.'s Mot."), ECF No. 6. On July 15, 2019, prior to assignment to the undersigned, the court entered an order granting Plaintiff's motion for a TRO. See Temporary Restraining Order (July 15, 2019), ECF No. 10. Pursuant to Rule 65 of the rules of the U.S. Court of International Trade ("USCIT"), the TRO will expire on July 29, 2019. See USCIT Rule 65(b)(2). Plaintiff now seeks to enjoin, "pending a final and conclusive court decision in this litigation, and any appeals therefrom," "Defendant United States, together with its delegates, officers, agents, servants, and employees of the International Trade Administration of the U.S. Department of Commerce and U.S. Customs and Border Protection" from: (1) liquidating "any unliquidated entries of softwood lumber from Canada that" were subject to the Final Results of Expedited Review , entered on or after April 28, 2017, and were produced or exported by seven of the eight companies that received de minimis or reduced rates in the review; (2) revoking the relevant countervailing duty order on five companies that received de minimis rates in the review; and (3) collecting cash deposits at the rates established in the Final Results of Expedited Review on entries made on or after July 5, 2019 and which were produced or exported by the eight companies subject to the review. [Proposed] Order, ECF No. 6.

Defendant, United States ("the Government"), and several Defendant-Intervenors oppose Plaintiff's motion. See Def.'s Mot. to Dismiss and Opp'n to Pl.'s Mot. for a Prelim. Inj. ("Def.'s MTD & Opp'n"), ECF No. 21; Opp'n of Def.-Int., Fontaine Inc., to Pl.'s Mot. for Temporary Restraining Order and for Prelim. Inj. ("Fontaine's Opp'n"), ECF No. 26; Opp'n of Def.-Int. Gov't of Canada to Pl.'s Mot. for Temporary Restraining Order and for Prelim. Inj. ("Gov't of Canada's Opp'n"), ECF No. 67; Resp. of Def.-Int. Scierie Alexandre Lemay & Fils Inc. Opp'n to Pl.'s Mot. for Temporary Restraining Order and for Prelim. Inj. and in Supp. of Def.'s Mot. to Dismiss ("Lemay's Opp'n"), ECF No. 68.² Fontaine, Inc. ("Fontaine") has also moved to modify the TRO. See Mot. to Modify Temporary Restraining Order ("Fontaine's Mot."), ECF No. 22. On July 25, 2019, the court heard oral argument on Plaintiff's motion. Docket Entry, ECF No. 69. For the reasons discussed herein, the court will vacate the TRO as having been improvidently granted and deny Plaintiff's motion for a preliminary injunction.³ Accordingly, the court will deny as moot Fontaine's motion to modify the TRO.

BACKGROUND

"A ‘final determination’ in an antidumping or countervailing duty investigation constitutes a final decision by the [U.S. Department of Commerce ("Commerce" or "the agency") ] as to whether dumping or countervailable subsidization is occurring." 19 C.F.R. § 351.210(a). When the determination is affirmative, Commerce must determine an estimated individual countervailable subsidy rate or weighted average dumping margin, as the case may be, for each exporter and producer individually investigated as well as an "estimated all-others rate for all exporters and producers not individually investigated." 19 U.S.C. §§ 1671d(c)(1)(B)(i)(I), 1673d(c)(1)(B)(i)(I)-(II). Commerce must then "order the posting of a cash deposit, bond, or other security ... for each entry of the subject merchandise in an amount based on the estimated individual countervailable subsidy rate, the estimated all-others rate, or the estimated country-wide subsidy rate," id. § 1671d(c)(1)(B)(ii), or, in antidumping proceedings, "in an amount based on the estimated weighted average dumping margin or the estimated all-others rate," id. § 1673d(c)(1)(B)(ii). In the event of a negative determination, the investigation will be terminated, and any suspension of liquidation will be ended. 19 C.F.R. § 351.207(d) - (e).

Relevant here, an exporter that Commerce did not select for individual examination in a countervailing duty investigation may, within 30 days of the date of publication of the relevant order, request an expedited review of the cash deposit rate. 19 C.F.R. § 351.214(k). The period of review is the period of investigation used in the original investigation. Id. § 351.214(k)(3)(i). This enables the agency to use data from that investigation in order to expedite the review. See Antidumping Duties; Countervailing Duties , 62 Fed. Reg. 27,296, 27,321 (Dep't Commerce May 19, 1997) (final rule) ("Preamble "). While the final results of an expedited review "will not be the basis for the assessment of countervailing duties," Commerce "may exclude from the countervailing duty order in question any exporter for which the [agency] determines an individual net countervailable subsidy rate of zero or de minimis." 19 C.F.R. § 351.214(k)(3)(iv).

Final duty liability typically is determined in an administrative review of an order pursuant to 19 U.S.C. § 1675(a)(1). See 19 C.F.R. § 351.213(a) ; cf. 19 C.F.R. § 351.11(b)(1) (explaining that, upon publication of an antidumping or countervailing duty order, Commerce will instruct CBP "to assess antidumping duties or countervailing duties (whichever is applicable) on the subject merchandise, in accordance with the Secretary's instructions at the completion of" either an administrative review, new shipper review, or expedited antidumping review).⁴ Interested parties may request an administrative review "during the anniversary month of the publication of an antidumping or countervailing duty order." Id. § 351.213(b). If no review is requested (or when all requests for review are withdrawn), Commerce will, "without additional notice," instruct CBP to assess antidumping duties or countervailing duties at the cash deposit rates. Id. § 351.212(c).

In November 2017, Commerce issued final affirmative determinations in its countervailing duty ("CVD") and antidumping duty ("AD") investigations of certain softwood lumber products from Canada. See Certain Softwood Lumber Products From Canada , 82 Fed. Reg. 51,814 (Dep't Commerce Nov. 8, 2017) (final aff. countervailing duty determination and final negative determination of critical circumstances); Certain Softwood Lumber Products From Canada , 82 Fed. Reg. 51,806 (Dep't Commerce No. 8, 2017) (final aff. determination of sales at less than fair value and aff. final determination of critical circumstances).⁵ On January 3, 2018, Commerce published the CVD and AD orders. See Certain Softwood Lumber Products From Canada , 83 Fed. Reg. 347 (Dep't Commerce Jan. 3, 2018) (am. final aff. countervailing duty determination and countervailing duty order) ("CVD Order "); Certain Softwood Lumber Products From Canada , 83 Fed. Reg. 350 (Dep't Commerce Jan. 3, 2018) (antidumping duty order and partial am. final determination) ("AD Order ").

On March 8, 2018, in response to requests filed by certain Canadian producers, Commerce initiated an expedited review of the CVD Order . See Certain Softwood Lumber Products From Canada , 83 Fed. Reg. 9,833 (Dep't Commerce March 8, 2018) (initiation of expedited review of the countervailing duty order) ("Initiation Notice "); 19 C.F.R. § 351.214(k). The companies subject to the expedited review (and their affiliates) were not selected for individual examination during the investigation and had been assigned the "all-others" rate of 14.19 percent. CVD Order , 83 Fed. Reg. at 348. The "period of review" for the expedited review ran...