Notice2021-18596
Certain Softwood Lumber Products From Canada: Notice of Court Decision Not in Harmony With the Final Results of Countervailing Duty Expedited Review; Notice of Rescission of Final Results of Expedited Review; Notice of Amended Cash Deposit Rates
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
August 30, 2021
Issuing agencies
Commerce DepartmentInternational Trade Administration
Abstract
On August 18, 2021, the U.S. Court of International Trade (CIT) issued its final judgment in Committee Overseeing Action for Lumber International Trade Investigations or Negotiations, et al. v. United States, et al., Consol. Court No. 19-00122, sustaining the Department of Commerce's (Commerce) remand results pertaining to the expedited review of the countervailing duty (CVD) order on certain softwood lumber products (softwood lumber) from Canada covering the period January 1, 2015, through December 31, 2015. Commerce is notifying the public that the CIT's final judgment is not in harmony with Commerce's final results of the expedited review, and that Commerce is rescinding the final results; reinstating the CVD order for Les Produits Forestiers D&G Lt[eacute]e (D&G), Marcel Lauzon Inc. (MLI), North American Forest Products Ltd. (NAFB) (located in New Brunswick), Roland Boulanger & Cie Lt[eacute]e (Roland), and Scierie Alexandre Lemay & Fils Inc. (Lemay) (including their cross-owned affiliates); and reassigning the cash deposit rate for the companies covered by the Final Results of Expedited Review.
Full Text
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<title>Federal Register, Volume 86 Issue 165 (Monday, August 30, 2021)</title>
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[Federal Register Volume 86, Number 165 (Monday, August 30, 2021)]
[Notices]
[Pages 48396-48398]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-18596]
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DEPARTMENT OF COMMERCE
International Trade Administration
[C-122-858]
Certain Softwood Lumber Products From Canada: Notice of Court
Decision Not in Harmony With the Final Results of Countervailing Duty
Expedited Review; Notice of Rescission of Final Results of Expedited
Review; Notice of Amended Cash Deposit Rates
AGENCY: Enforcement and Compliance, International Trade Administration,
Department of Commerce.
SUMMARY: On August 18, 2021, the U.S. Court of International Trade
(CIT) issued its final judgment in Committee Overseeing Action for
Lumber International Trade Investigations or Negotiations, et al. v.
United States, et al., Consol. Court No. 19-00122, sustaining the
Department of Commerce's (Commerce) remand results pertaining to the
expedited review of the countervailing duty (CVD) order on certain
softwood lumber products (softwood lumber) from Canada covering the
period January 1, 2015, through December 31, 2015. Commerce is
notifying the public that the CIT's final judgment is not in harmony
with Commerce's final results of the expedited review, and that
Commerce is rescinding the final results; reinstating the CVD order for
Les Produits Forestiers D&G Lt[eacute]e (D&G), Marcel Lauzon Inc.
(MLI), North American Forest Products Ltd. (NAFB) (located in New
Brunswick), Roland Boulanger & Cie Lt[eacute]e (Roland), and Scierie
Alexandre Lemay & Fils Inc. (Lemay) (including their cross-owned
affiliates); and reassigning the cash deposit rate for the companies
covered by the Final Results of Expedited Review.
DATES: Applicable August 28, 2021.
FOR FURTHER INFORMATION CONTACT: Kristen Johnson, AD/CVD Operations,
Office III, Enforcement and Compliance, International Trade
Administration, U.S. Department of Commerce, 1401 Constitution Avenue
NW, Washington, DC 20230; telephone: (202) 482-4793.
SUPPLEMENTARY INFORMATION:
Background
On January 3, 2018, Commerce published the CVD order on softwood
lumber from Canada.\1\ On July 5, 2019, Commerce published its Final
Results of Expedited Review for the CVD Order.\2\ In the Final Results
of Expedited Review, Commerce stated that it promulgated 19 CFR
351.214(k), its regulations for conducting CVD expedited reviews,
pursuant to section 103(a) of the Uruguay Round of Agreements Act
(URAA), which made several amendments to the antidumping and CVD
provisions of the Tariff Act of 1930, as amended (the Act).\3\
Specifically, Commerce explained that Article 19.3 of the World Trade
Organization Agreement on Subsidies and Countervailing Measures (SCM
Agreement) expressly provides for expedited reviews of non-investigated
exporters or producers in CVD proceedings and that the Statement of
Administrative Action (SAA) states that ``Article 19.3 of the Subsidies
Agreement provides that any exporter whose exports are subject to a CVD
order, but which was not actually investigated for reasons other than a
refusal to cooperate, shall be entitled to an expedited review to
establish an individual CVD rate for that exporter.'' \4\ Although the
URAA did not implement a specific provision for the conduct of CVD
expedited reviews in the Act, Commerce concluded that it had the
authority to promulgate the CVD expedited review regulations at 19 CFR
351.214(k) pursuant to section 103(a) of the URAA, which provides that
``appropriate officers of the United States Government may issue such
regulations, as may be necessary to ensure that any provision of this
Act, or amendment made by this Act, . . . is appropriately implemented
. . . .'' \5\
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\1\ See Certain Softwood Lumber Products from Canada: Amended
Final Affirmative Countervailing Duty Determination and
Countervailing Duty Order, 83 FR 347 (January 3, 2018) (CVD Order).
\2\ See Certain Softwood Lumber Products from Canada: Final
Results of Countervailing Duty Expedited Review, 84 FR 32121 (July
5, 2019) (Final Results of Expedited Review), and accompanying
Issues and Decision Memorandum (IDM).
\3\ See Final Results of Expedited Review IDM at 19 (citing
URAA, Pub. L. 103-465, 108 Stat. 4809 (1994)).
\4\ Id. at 18 (citing SAA H.R. Doc. 103-316, Vol. I at 870
(1994), reprinted at 1994 U.S.C.C.A.N. 4040, 4199, at 941. Section
102(d) of the URAA states that the SAA ``shall be regarded as an
authoritative expression by the United States concerning the
interpretation and application of the Uruguay Round Agreements and
this Act in any judicial proceeding in which a question arises
concerning such interpretation or application'').
\5\ See Final Results of Expedited Review IDM at 19 (citing
section 103(a) of the URAA).
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[[Page 48397]]
After determining that it had statutory authority to conduct the
expedited review, Commerce found that among the eight companies subject
to the CVD expedited review, five of the companies each had a de
minimis subsidy rate and were, therefore, excluded from the CVD
Order.\6\ The five companies are D&G, MLI, NAFB (located in New
Brunswick), Roland, and Lemay (and their cross-owned affiliates).\7\
The other three companies (and their cross-owned affiliates) subject to
the review that received individual above de minimis rates are Fontaine
Inc. (Fontaine), Mobilier Rustique (Beauce) Inc. (Mobilier Rustique),
and Produits Matra Inc. and Sechoirs de Beauce Inc. (Produits
Matra).\8\
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\6\ See Final Results of Expedited Review, 84 FR at 32122.
\7\ Id.
\8\ Id.
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The Committee Overseeing Action for Lumber International Trade
Investigations or Negotiations appealed Commerce's Final Results of
Expedited Review. On November 19, 2020, the CIT held that Commerce
exceeded its authority in promulgating 19 CFR 351.214(k) pursuant to
section 103(a) of the URAA.\9\ Specifically, the CIT explained that
because section 103(a) of the URAA only authorizes Commerce to issue
regulations for enacted provisions of the URAA, and because the URAA
does not contain a provision explicitly authorizing CVD expedited
reviews, section 103(a) cannot be the basis of Commerce's authority for
promulgating its CVD expedited review regulations.\10\ The CIT remanded
the Final Results of Expedited Review to Commerce for Commerce to
either take action in conformity with its opinion, or to consider
alternative legal authorities interested parties had presented to the
CIT as the basis for Commerce's promulgation of its CVD expedited
review regulations at 19 CFR 351.214(k) to determine individual subsidy
rates for companies not individually examined in an investigation.\11\
These alternative legal authorities included sections 101(a), 101(b),
and 103(b) of the URAA; sections 705(c), 751(a), 751(b), and 77A(e) of
the Act; and the inherent authority of agencies to reconsider prior
decisions.\12\
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\9\ See Committee Overseeing Action for Lumber International
Trade Investigations or Negotiations, et al. v. United States, et
al., Court No. 19-00122, Slip Op. 20-167 (CIT 2020), at 17. The CIT
also held that because the SAA does not propose any actions for the
implementation of CVD expedited reviews, Commerce was not authorized
to promulgate 19 CFR 351.214(k) under section 103(b) of the URAA,
which provides for the issuance of ``{a{time} ny interim regulation
necessary or appropriate to carry out any action proposed in the
{SAA{time} .'' Id. at 23-24.
\10\ Id. at 17-18, 20-21.
\11\ Id. at 3-4, 33-35.
\12\ Id. at 33. Although the CIT ruled that section 103(b) of
the URAA does not provide Commerce authority to promulgate its CVD
expedited review regulations, the CIT allowed Commerce to further
elaborate on its arguments regarding section 103(b) on remand. Id.
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In its final remand redetermination, issued in February 2021,
Commerce determined that, in accordance with the CIT's opinion and
interpretation of the URAA, section 103(a) of the URAA, as well as the
other legal authorities presented to the CIT, are not adequate bases
for the promulgation of the CVD expedited review regulations under 19
CFR 351.214(k).\13\ The CIT sustained Commerce's final redetermination;
vacated the CVD expedited review regulations at 19 CFR 351.214(k);
vacated the Final Results of Expedited Review; ordered that the
companies excluded from the CVD Order as a result of the expedited
review be reinstated under the CVD Order prospectively; and for all
companies that were covered by the Final Results of Expedited Review,
impose a cash deposit requirement based on the all-others rate from the
investigation or the company-specific rate determined in the most
recently completed administrative review in which the company was
reviewed.\14\ Consequently, Commerce is reinstating the five excluded
companies in the CVD Order prospectively (D&G, MLI, NAFB (located in
New Brunswick), Roland, and Lemay) and imposing on those companies a
14.19 percent ad valorem cash deposit requirement based on the all-
others rate from the investigation.\15\ Commerce is also assigning as
the cash deposit rate for Fontaine, Mobilier Rustique, and Produits
Matra either the all-others rate from the investigation, or the rate
determined for the company in the most recently completed
administrative review in which the company was reviewed.
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\13\ See Final Results of Redetermination Pursuant to Court
Remand, Committee Overseeing Action for Lumber International Trade
Investigations or Negotiations, et al. v. United States, et al.,
Court No. 19-00122, Slip Op. 20-167 (CIT 2020), dated February 17,
2021.
\14\ See Committee Overseeing Action for Lumber International
Trade Investigations or Negotiations, et al. v. United States, et
al., Court No. 19-00122, Slip Op. 21-104 (CIT 2021). Although the
CIT vacated 19 CFR 351.214(k), it explained that because ``notice
and comment procedure is not required whe{n{time} a court vacates a
rule after making a finding on the merits,'' the CIT declined to
order Commerce to formally repeal 19 CFR 351.214(k). Id. at fn. 28
(citing Nat'l Parks Cons. Ass'n v. Salazar, 660 F. Supp. 2d 3, 5
(D.D.C. 2009) (citing Cement Kiln Recycling Coal. v. EPA, 255 F.3d
855, 872 (D.C. Cir. 2001))).
\15\ See CVD Order, 83 FR at 349.
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Notice
In its decision in Timken,\16\ as clarified by Diamond
Sawblades,\17\ the Court of Appeals for the Federal Circuit held that,
pursuant to section 516A(c) and (e) of the Act, Commerce must publish a
notice of court decision that is not ``in harmony'' with a Commerce
determination and must suspend liquidation of entries pending a
``conclusive'' court decision. The CIT's August 18, 2021, judgment
constitutes a final decision of the CIT that is not in harmony with
Commerce's Final Results of Expedited Review. We are issuing this
notice consistent with section 516A(c) of the Act and in accordance
with the CIT's order.
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\16\ See Timken Co. v. United States, 893 F.2d 337 (Fed. Cir.
1990) (Timken).
\17\ See Diamond Sawblades Manufacturers Coalition v. United
States, 626 F.3d 1374 (Fed. Cir. 2010) (Diamond Sawblades).
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Cash Deposit Rates
Because there is now a final court judgment vacating the Final
Results of Expedited Review, Commerce is reassigning the
countervailable subsidy rates for the companies subject to the Final
Results of Expedited Review as follows:
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Subsidy rate
Producer/exporter (percent ad
valorem)
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Les Produits Forestiers D&G Lt[eacute]e and its cross- 14.19
owned affiliates \18\..................................
Marcel Lauzon Inc. and its cross-owned affiliates \19\.. 14.19
North American Forest Products Ltd. (located in New 14.19
Brunswick) and its cross-owned affiliates \20\.........
Roland Boulanger & Cie Lt[eacute]e and its cross-owned 14.19
affiliates \21\........................................
Scierie Alexandre Lemay & Fils Inc. and its cross-owned 14.19
affiliates \22\........................................
Fontaine Inc. and its cross-owned affiliates \23\....... 14.19
Mobilier Rustique (Beauce) Inc. and its cross-owned 14.19
affiliates \24\........................................
[[Page 48398]]
Produits Matra Inc. and Sechoirs de Beauce Inc. and its 7.42
cross-owned affiliate \25\.............................
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Cash Deposit Requirements
Commerce will issue revised cash deposit instructions to U.S.
Customs and Border Protection (CBP).
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\18\ Commerce finds the following companies to be cross-owned
with Les Produits Forestiers D&G Lt[eacute]e: Le Groupe Gesco-Star
Ltee, Les Produits Forestiers Portbec Ltee, and Les Produits
Forestiers Startrees Ltee. The subsidy rate assigned to these
companies is the all-others rate from the investigation. See CVD
Order.
\19\ Commerce finds the following companies to be cross-owned
with Marcel Lauzon Inc.: Placements Marcel Lauzon Ltee and
Investissements LRC Inc. The subsidy rate assigned to these
companies is the all-others rate from the investigation. See CVD
Order.
\20\ Commerce finds the following companies to be cross-owned
with North American Forest Products Ltd.: Parent-Violette Gestion
Ltee and Le Groupe Parent Ltee. The subsidy rate assigned to these
companies is the all-others rate from the investigation. See CVD
Order.
\21\ Commerce finds the following companies to be cross-owned
with Roland Boulanger & Cie Ltee: Industries Daveluyville Inc. and
Les Manufacturiers Warwick Ltee. The subsidy rate assigned to these
companies is the all-others rate from the investigation. See CVD
Order.
\22\ Commerce finds the following companies to be cross-owned
with Scierie Alexandre Lemay & Fils Inc.: Bois Lemay Inc. and
Industrie Lemay Inc. The subsidy rate assigned to these companies is
the all-others rate from the investigation. See CVD Order.
\23\ Commerce finds the following companies to be cross-owned
with Fontaine Inc.: Gestion Natanis Inc., Les Placements Jean-Paul
Fontaine Ltee, and Placements Nicolas Fontaine Inc. The subsidy rate
assigned to these companies is the all-others rate from the
investigation. See CVD Order.
\24\ Commerce finds the following companies to be cross-owned
with Mobilier Rustique (Beauce) Inc.: J.F.S.R. Inc., Gestion C.A.
Rancourt Inc., Gestion J.F. Rancourt Inc., Gestion Suzie Rancourt
Inc., Gestion P.H.Q. Inc., 9331-3419 Quebec Inc., 9331-3468 Quebec
Inc., and SPQ Inc. The subsidy rate assigned to these companies is
the all-others rate from the investigation. See CVD Order.
\25\ Commerce finds the following company to be cross-owned with
Produits Matra Inc. and Sechoirs de Beauce Inc.: Bois Ouvre de
Beauceville (1992), Inc. The subsidy rate assigned to these
companies is the non-selected rate from the first administrative
review of the order. See Certain Softwood Lumber Products from
Canada: Final Results of the Countervailing Duty Administrative
Review, 2017-2018, 85 FR 77163 (December 1, 2020).
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Liquidation of Suspended Entries
At this time, Commerce remains enjoined by CIT order from
liquidating entries of subject merchandise subject to the Final Results
of Expedited Review that were produced and/or exported by Fontaine and
that were entered into the United States, or withdrawn from warehouse,
for consumption during the period April 28, 2017, through December 31,
2018. These entries will remain enjoined pursuant to the terms of the
injunction during the pendency of any appeals process. In the event the
CIT's ruling is not appealed, or, if appealed, upheld by a final and
conclusive court decision, Commerce intends to instruct CBP to assess
countervailing duties on unliquidated entries of subject merchandise
exported by Fontaine and that were entered into the United States, or
withdrawn from warehouse, for consumption during the period April 28,
2017, through December 31, 2018.
Furthermore, Commerce's final results of administrative review of
the CVD Order for the period April 28, 2017, through December 31, 2018
are currently the subject of a United States Mexico Canada Agreement
(USMCA) Binational Panel Review (USMCA Secretariat File No.: USA-CDA-
2020-10.12-01). Pursuant to that Panel Review, Commerce will continue
to suspend liquidation of all entries of subject merchandise produced
and/or exported by the companies subject to the first administrative
review pending final disposition of the Binational Panel proceeding.
Because Produits Matra was subject to the first administrative review,
Commerce will continue to suspend liquidation of entries of subject
merchandise produced and/or exported by Produits Matra (and its cross-
owned affiliate) that were entered, or withdrawn from warehouse, for
the period April 28, 2017, through December 31, 2018, pending final
disposition of the USMCA Binational Panel proceeding.
Notification to Interested Parties
This notice is issued and published in accordance with sections
516A(c) and (e) and 777(i)(1) of the Act.
Dated: August 24, 2021.
Ryan Majerus,
Deputy Assistant Secretary for Policy and Negotiations.
[FR Doc. 2021-18596 Filed 8-27-21; 8:45 am]
BILLING CODE 3510-DS-P
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