Comm. Overseeing Action for Lumber Int'l Trade Investigations or Negotiations v. United States ( 2019 )

Slip Op. 19-
UNITED STATES COURT OF INTERNATIONAL TRADE
COMMITTEE OVERSEEING ACTION
FOR LUMBER INTERNATIONAL TRADE
INVESTIGATIONS OR NEGOTIATIONS,
Plaintiff,
v.
Before: Mark A. Barnett, Judge
UNITED STATES,
Court No. 19-00122
Defendant,
and
FONTAINE INC., ET AL.,
Defendant-Intervenors.
OPINION AND ORDER
[Defendant’s motion to dismiss for lack of subject matter jurisdiction is denied.]
Dated: November 4, 2019
Lisa W. Wang, Andrew W. Kentz, David A. Yocis, Nathanial M. Rickard, Heather N.
Doherty, Sophia J.C. Lin, and Zachary J. Walker, Picard Kentz & Rowe LLP, of
Washington, DC, for Plaintiff Committee Overseeing Action for Lumber International
Trade Investigations or Negotiations.
Stephen C. Tosini, Senior Trial Counsel, Commercial Litigation Branch, Civil Division,
U.S. Department of Justice, of Washington, DC, for Defendant United States. With him
on the brief were Joseph H. Hunt, Assistant Attorney General, Jeanne E. Davidson,
Director, and Patricia M. McCarthy, Assistant Director. Of counsel on the brief were
Jessica DiPietro and Nikki Kalbing, Attorneys, Office of the Chief Counsel for Trade
Enforcement and Compliance, U.S. Department of Commerce, of Washington, DC.
Elliot J. Feldman, Michael S. Snarr, John J. Burke, Mark B. Lehnardt, Lindita V. Ciko
Torza, and Jake R. Frischknecht, Baker & Hostetler, LP, of Washington, DC, for
Defendant-Intervenor Fontaine, Inc.
Court No. 19-00122 Page 2
Lynn G. Kamarck, Joanne E. Osendarp, Dean A. Pinkert, Alan G. Kashdan, Daniel M.
Witkowski, and Stephen R. Halpin, III, Hughes Hubbard & Reed LLP, of Washington,
DC, for Defendant-Intervenor the Government of Canada.
Yohai Baisburd, Myles S. Getlan, Jonathan M. Zielinski, and James E. Ransdell,
Cassidy Levy Kent (USA) LLP, of Washington, DC, for Defendant-Intervenor Scierie
Alexandre Lemay & Fils Inc.
Barnett, Judge: Plaintiff, Committee Overseeing Action for Lumber International
Trade Investigations or Negotiations, seeks to challenge the final results of the
countervailing duty expedited review of certain softwood lumber products from Canada.
Compl. ¶¶ 1–2, ECF No. 2; 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 visited Nov. 4,
2019). Defendant, United States (“the Government”), moves to dismiss Plaintiff’s
complaint for lack of subject matter jurisdiction pursuant to United States Court of
International Trade (“USCIT”) Rule 12(b)(1). Def.’s Mot. to Dismiss and Opp’n to Pl.’s
Mot. for a Prelim. Inj. (“Def.’s Mot.”), ECF No. 21. 1 Plaintiff opposes the motion. Pl.’s
Resp. in Opp’n to Def.’s Mot. to Dismiss (“Pl.’s Opp’n”), ECF No. 74. Several
Defendant-Intervenors support the Government’s motion. Resp. of Def.-Int. Scierie
1 On July 26, 2019, the court vacated as improvidently granted a temporary restraining
order barring U.S. Customs and Border Protection (“CBP”) from liquidating unliquidated
entries of softwood lumber produced or exported by certain Canadian companies that
received reduced or de minimis rates in the Final Results of Expedited Review and
denied Plaintiff’s motion for a preliminary injunction seeking same. Comm. Overseeing
Action for Lumber Int’l Trade Investigations or Negotiations v. United States (“Lumber
I”), 43 CIT ___, 393 F. Supp. 3d 1271 (2019).
Court No. 19-00122 Page 3
Alexandre Lemay & Fils Inc. in 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 Resp.”), ECF No. 68;
Resp. of Def.-Int. Gov’t of Canada in Supp. of Def.’s Mot. to Dismiss for Lack of Subject
Matter Jurisdiction (“GOC’s Resp.”), ECF No. 75; Resp. of Def.-Int., Fontaine Inc., to
Def.’s Mot. to Dismiss for Lack of Subject Matter Jurisdiction (“Fontaine’s Resp.”), ECF
No. 76. 2 For the reasons discussed herein, the court denies the Government’s motion.
BACKGROUND
On January 3, 2018, following affirmative determinations of dumping,
countervailable subsidization, and material injury, Commerce published the
countervailing duty (“CVD”) and antidumping (“AD”) duty orders. See Certain Softwood
Lumber Products From Canada, 83 Fed. Reg. 347 (Dep’t Commerce Jan. 3, 2018) (am.
final aff. CVD determination and CVD order) (“CVD Order”); Certain Softwood Lumber
Products From Canada, 83 Fed. Reg. 350 (Dep’t Commerce Jan. 3, 2018) (AD order
and partial am. final determination).
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 CVD Order) (“Initiation Notice”). The companies
subject to the expedited review (and their affiliates) are companies that were not
2 Defendant-Intervenors Les Produits Forestiers D&G Ltée, Marcel Lauzon Inc., North
American Forest Products Ltd., Parent-Violette Gestion Ltée, Le Groupe Parent Ltee,
the Government of Quebec, Mobilier Rustique (Beauce) Inc., and the Government of
New Brunswick did not respond to the Government’s motion.
Court No. 19-00122 Page 4
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 348–49. The “period of
review” for the expedited review was January 1, 2015, through December 31, 2015.
Initiation Notice, 83 Fed. Reg. at 9,833.
On July 5, 2019, Commerce issued the Final Results of Expedited Review,
pursuant to which the agency calculated reduced or de minimis rates for the eight
companies as follows: (1) Les Produits Forestiers D&G Ltée and its cross-owned
affiliates (“D&G”): 0.21 percent; (2) Marcel Lauzon Inc. and its cross-owned affiliates
(“MLI”): 0.42 percent; (3) North American Forest Products Ltd. and its cross-owned
affiliates (“NAFP”): 0.17 percent; (4) Roland Boulanger & Cie Ltée and its cross-owned
affiliates (“Roland”): 0.31 percent; (5) Scierie Alexandre Lemay & Fils Inc. and its cross-
owned affiliates (“Lemay”): 0.05 percent; (6) Fontaine and its cross-owned affiliates:
1.26 percent; (7) Mobilier Rustique (Beauce) Inc. and its cross-owned affiliates
(“Rustique”): 1.99 percent; and (8) Produits Matra Inc. and Sechoirs de Beauce Inc. and
their cross-owned affiliate (“Matra”): 5.80 percent. Final Results of Expedited Review,
84 Fed. Reg. at 32,122.
The rates calculated for D&G, MLI, NAFP, Roland, and Lemay are considered de
minimis, therefore, Commerce stated it would instruct CBP “to discontinue the
suspension of liquidation and the collection of cash deposits of estimated countervailing
duties on all shipments of softwood lumber produced and exported by” those companies
that were entered on or after July 5, 2019; “liquidate, without regard to countervailing
duties, all suspended entries of shipments of softwood lumber produced and exported
Court No. 19-00122 Page 5
by” those companies; and “refund all cash deposits of estimated countervailing duties
collected on all such shipments.” Id. As to the companies receiving a lower—but not de
minimis—rate (Fontaine, Rustique, and Matra), Commerce stated it would instruct CBP
“to collect cash deposits of estimated countervailing duties” at the lower rates calculated
in the Final Results of Expedited Review. Id.
On July 15, 2019, Plaintiff initiated this action challenging the Final Results of
Expedited Review. Summons, ECF No. 1; Compl., ECF No. 2. Plaintiff alleged
jurisdiction pursuant to 28 U.S.C. § 1581(i)(4) 3 or, alternatively, 28 U.S.C. § 1581(c). 4
Compl. ¶¶ 3–6. Plaintiff alleged that Commerce’s promulgation of the regulatory
provision governing expedited reviews, 19 C.F.R. § 351.214(k), violated the
Administrative Procedure Act, 5 U.S.C. § 706 (count one); the Final Results of
Expedited Review contravened subsection (k)(3)(iii) of the regulation by providing for
the assessment of countervailing duties (count two); and the Final Results of Expedited
Review are otherwise unsupported by substantial evidence and unlawful (counts three
and four). Compl. ¶¶ 14–22. The Government responded by filing a motion to dismiss
3 Pursuant to 28 U.S.C. § 1581(i)(4):
[T]he Court of International Trade shall have exclusive jurisdiction of any civil
action commenced against the United States, its agencies, or its officers, that
arises out of any law of the United States providing for . . . administration and
enforcement with respect to the matters referred to in paragraphs (1)-(3) of this
subsection and subsections (a)-(h) of this section.
28 U.S.C. § 1581(i)(4) (hereinafter referred to as “(i) jurisdiction”).
4 Pursuant to 28 U.S.C. § 1581(c), “[t]he Court of International Trade shall have
exclusive jurisdiction of any civil action commenced under section 516A or 517 of the
Tariff Act of 1930,” 19 U.S.C. §§ 1516a, 1517. 28 U.S.C. § 1581(c) (hereinafter referred
to as “(c) jurisdiction”).
Court No. 19-00122 Page 6
the complaint in its entirety, arguing that (c) jurisdiction is premature and (i) jurisdiction
is unavailable. See generally Def.’s Mot.
DISCUSSION
I. Legal Standard for Subject Matter Jurisdiction
To adjudicate a case, a court must have subject-matter jurisdiction over the
claims presented. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94–95
(1998). “[W]hen a federal court concludes that it lacks subject-matter jurisdiction, the
complaint must be dismissed in its entirety.” Arbaugh v. Y & H Corp., 546 U.S. 500, 514
(2006).
The plaintiff bears the burden of establishing subject-matter jurisdiction. See
Norsk Hydro Can., Inc. v. United States, 472 F.3d 1347, 1355 (Fed. Cir. 2006). When,
as here, the motion challenges the existence of jurisdiction as opposed to the
sufficiency of a plaintiff’s allegations of jurisdiction, “the factual allegations in the
complaint are not controlling and only uncontroverted factual allegations are accepted
as true.” Shoshone Indian Tribe of Wind River Reservation, Wyo. v. United States, 672
F.3d 1021, 1030 (Fed. Cir. 2012); cf. H & H Wholesale Servs., Inc. v. United States, 30
CIT 689, 691–92, 437 F. Supp. 2d 1335, 1339 (2006) (when the motion challenges the
sufficiency of the pleadings, the court assumes that the allegations within the complaint
are true). To “resolv[e] these disputed predicate jurisdictional facts, [the] court is not
restricted to the face of the pleadings” and may, if necessary, “review evidence extrinsic
to the pleadings.” Shoshone Indian Tribe, 672 F.3d at 1030 (internal quotation marks
and citation omitted).
Court No. 19-00122 Page 7
II. Relevant Statutory and Regulatory Provisions
As noted, 28 U.S.C. § 1581(i)(4) provides the court with exclusive jurisdiction
over a civil action commenced against the United States “that arises out of any law . . .
providing for” the “administration and enforcement” of matters referenced in 28 U.S.C.
§ 1581(a)–(h). Subsection (i) cannot confer jurisdiction over an AD or CVD
determination that is judicially reviewable pursuant to 19 U.S.C. § 1516a. Id. § 1581(i).
Judicial review of those determinations is reserved to the court’s (c) jurisdiction. Id. §
1581(c).
Relevant here, section 1516a provides for the judicial review of a Commerce
determination issued pursuant to 19 U.S.C. § 1675. 19 U.S.C. § 1516a(a)(2)(B)(iii).
Section 1675 describes several proceedings and determinations: annual administrative
reviews of an AD or CVD order upon request, 19 U.S.C. § 1675(a)(1); reviews of an AD
or CVD order by a new producer or exporter that did not export subject merchandise
during the period of investigation (termed “new shipper reviews”), id. § 1675(a)(2)(B);
reviews based on changed circumstances, id. § 1675(b); five-year reviews, id.
§ 1675(c); reviews to consider the revocation of an order or termination of a suspended
investigation, id. § 1675(d); reviews to implement the results of a subsidies enforcement
proceeding, id. § 1675(g); and the correction of ministerial errors in final determinations,
id. § 1675(h). 5
5 Subsection 1675(e) governs the conduct of hearings and subsection 1675(f) provides
the procedures the U.S. International Trade Commission must follow when it issues a
negative determination pursuant to subsection 1675(b)(2)(B). 19 U.S.C. § 1675(e),(f).
Court No. 19-00122 Page 8
As a general rule, a civil action challenging a section 1675 determination must be
commenced within 30 days after the date of publication of the determination in the
Federal Register. Id. § 1516a(a)(2)(i)(I). For final AD or CVD determinations involving
a free trade area country, such as Canada, an interested party must wait 31 days before
initiating an action at the USCIT. See id. § 1516a(a)(5), (g)(2). 6
The regulatory provision for expedited reviews, 19 C.F.R. § 351.214(k), is a
subsection of the regulation governing new shipper reviews. See id. § 351.214.
Subsection (k) permits a respondent that was not selected “for individual examination”
or “as a voluntary respondent” in a countervailing duty investigation in which Commerce
“limited the number of exporters or producers to be individually examined” to “request a
review . . . within 30 days of the date of publication in the Federal Register of the
countervailing duty order.” Id. § 351.214(k)(1). A request for an expedited review:
must be accompanied by a certification that:
(i) The requester exported the subject merchandise to the United States
during the period of investigation;
(ii) The requester is not affiliated with an exporter or producer that the
Secretary individually examined in the investigation; and
6Canada is a free trade area country pursuant to the North American Free Trade
Agreement (“NAFTA”). Id. § 1516a(f)(10)(A). Subsection 1516a(g) provides for the
exclusive review of an AD or CVD determination involving merchandise from Canada by
a binational panel if one is requested pursuant to NAFTA article 1904 (with certain
exceptions not relevant here). Id. § 1516a(g)(2). A request for binational review must
be made within 30 days from the date a determination is published in the Federal
Register. See NAFTA Art. 1904(4), available at https://www.nafta-sec-alena.
org/Home/Texts-of-the-Agreement/North-American-Free-Trade-Agreement?mvid
=1&secid=e1fadb86-4937-4fd0-b4fd-b28d531d0aba#A1904 (last visited Nov. 4, 2019).
Because binational panel review is exclusive, an interested party must therefore wait 31
days before initiating an action at the USCIT. 19 U.S.C. § 1516a(a)(5); see also id.
§ 1516a(g)(2) (stating that no U.S. court has jurisdiction to review a determination for
which binational panel review is requested pursuant to NAFTA article 1904).
Court No. 19-00122 Page 9
(iii) The requester has informed the government of the exporting country
that the government will be required to provide a full response to the
Department’s questionnaire.
Id. § 351.214(k)(1)(i)–(iii). If requested, an expedited review will be initiated “in the
month following the month in which a request for review is due.” Id. § 351.214(k)(2)(i).
Additionally, the expedited review will be conducted “in accordance with the provisions
of this section applicable to new shipper reviews,” subject to certain exceptions. Id.
§ 351.214(k)(3). 7 Those exceptions are:
(i) The period of review will be the period of investigation used by the
[agency] in the investigation that resulted in the publication of the
countervailing duty order (see § 351.204(b)(2));
(ii) The [agency] will not permit the posting of a bond or security in lieu of a
cash deposit under paragraph (e) of this section;
(iii) The final results of a review under this paragraph (k) will not be the
basis for the assessment of countervailing duties; and
(iv) The [agency] 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 (see § 351.204(e)(1)),
provided that the [agency] has verified the information on which the
exclusion is based.
Id. § 351.214(k)(3)(i)–(iv).
III. Parties’ Contentions
The Government contends that expedited reviews are exclusively reviewable
pursuant to 28 U.S.C. § 1581(c) and, thus, jurisdiction pursuant to 28 U.S.C.
§ 1581(i)(4) is unavailable. Def.’s Mot. at 7; Def.’s Reply in Supp. of its Mot. to Dismiss
at 2 (“Def.’s Reply”), ECF No. 84. The Government contends, however, that (c)
7 Relevant here, subsection 351.214(b) states that an exporter’s or producer’s request
for a new shipper review is “[s]ubject to the requirements of [19 U.S.C.
§ 1675](a)(2)(B).” 19 C.F.R. § 351.214(b)(1).
Court No. 19-00122 Page 10
jurisdiction is unavailable in this action because Plaintiff failed to wait at least 31 days
from the date of publication of the contested determination in the Federal Register in
accordance with 19 U.S.C. § 1516a(a)(5). Def.’s Mot. at 7. 8
Regarding the availability of (c) jurisdiction, the Government advances three
arguments supporting its position. The Government first contends that expedited
reviews are conducted pursuant to 19 C.F.R. § 351.214(k), subsection (k)(3) of which
incorporates by reference the provisions of subsection(b) applicable to new shipper
reviews, which, in turn, provides that new shipper reviews are “[s]ubject to the
requirements of [19 U.S.C. § 1675](a)(2)(B),” the statutory provision providing for new
shipper reviews. Def.’s Reply at 2–3. The Government relies on this chain of cross-
references to conclude that an expedited review is covered by 19 U.S.C. § 1675 and is,
thus, judicially reviewable pursuant to 19 U.S.C. § 1516a(a)(2)(A) and 28 U.S.C.
§ 1581(c). Id. at 2–3. 9 Second, the Government contends that expedited reviews are
“analogous to final determinations” of investigations issued under 19 U.S.C. § 1671d,
8 On August 5, 2019, 31 days after Commerce published the Final Results of Expedited
Review in the Federal Register, Plaintiff commenced a separate action to preserve its
appeal of Commerce’s determination in the event the court finds it appropriate to
exercise jurisdiction pursuant to 28 U.S.C. § 1581(c). See Comm. Overseeing Action
for Lumber Int’l Trade Investigations or Negotiations v. United States, et al., No. 19-cv-
00136, Compl. ¶ 6, ECF No. 5 (Ct. Int’l Trade Aug. 5, 2019).
9 In the Issues and Decision Memorandum accompanying the Final Results of
Expedited Review, Commerce makes essentially the same argument. See I&D Mem. at
22–23 & n.143 (citing Irving Paper Ltd., et al. v. United States, et al., No. 17-cv-00128,
Def.’s Resp. to the Court’s Dec. 28, 2017 Order at 2, ECF No. 53 (Ct. Int’l Trade Jan.
30, 2018)). While similar jurisdictional issues were raised in Irving Paper, the plaintiffs
voluntarily dismissed the action before the court had the opportunity to address them.
See Irving Paper Ltd., et al. v. United States, et al., No. 17-cv-00128, Stipulation of
Dismissal, ECF No. 75 (Ct. Int’l Trade July 30, 2018).
Court No. 19-00122 Page 11
which are judicially reviewable pursuant to 19 U.S.C. § 1516a(a)(2)(B) and the court’s
(c) jurisdiction. Id. at 5. Finally, the Government contends that an expedited review “is
analogous to an agency decision to reconsider a previously closed segment of the
proceeding,” i.e., the investigation, that is within the agency’s inherent authority and is
reviewable pursuant to the court’s (c) jurisdiction. Id.
The Government of Canada and Lemay agree with the Government that
expedited reviews are covered by 19 U.S.C. § 1675 and, thus, are judicially reviewable
pursuant to 19 U.S.C. § 1516a and 28 U.S.C. § 1581(c). GOC’s Resp. at 4–6, 18–19;
Lemay’s Resp. at 4–6. Fontaine equivocates as to whether (c) jurisdiction or (i)
jurisdiction is appropriate and urges the court to consolidate this case with Court No. 19-
00136, which Plaintiff filed pursuant to the court’s (c) jurisdiction, and defer ruling on the
jurisdictional question pending full briefing on the merits of Plaintiff’s challenge to
Commerce’s authority to conduct expedited reviews. Fontaine’s Resp. at 2–3; see also
supra note 8. As an alternative to finding (c) jurisdiction at this time, the Government of
Canada urges the court to consider deferring the jurisdictional question until ruling on
the merits of count one of Plaintiff’s complaint. GOC’s Resp. at 19–20. 10
Plaintiff contends that expedited reviews are not covered by 19 U.S.C. § 1675.
Pl.’s Opp’n at 5–11. In particular, Plaintiff argues that expedited reviews do not meet
10The Government of Canada also asserts several arguments regarding Commerce’s
authority to promulgate 19 C.F.R. § 351.214(k), including comity and the Charming
Betsy doctrine. See GOC’s Resp. at 6–18. These arguments go to the merits of
Plaintiff’s challenge to 19 C.F.R. § 351.214(k), have not been fully briefed, and are not
currently before the court. Consequently, the court does not now address those
arguments.
Court No. 19-00122 Page 12
certain requirements for annual administrative reviews and are distinct from new shipper
reviews. Id. at 6–8. Plaintiff argues that all other proceedings identified in 19 U.S.C.
§ 1675 are inapplicable. Id. at 8–10. Plaintiff further contends that expedited reviews
are not final investigation determinations pursuant to 19 U.S.C. § 1671d. Id. at 10–11.
IV. The Court Lacks Subject Matter Jurisdiction Pursuant to 28 U.S.C. § 1581(c)
A. Section 1675 of Title 19 Does Not Cover Expedited Reviews
“The Court of International Trade, like all federal courts, is a court of limited
jurisdiction.” Sakar Int’l, Inc. v. United States, 516 F.3d 1340, 1349 (Fed. Cir. 2008).
The authority bestowed upon it “by the Constitution and federal statutes . . . is not to be
expanded by judicial decree.” Id.; see also Kokkonen v. Guardian Life Ins. Co. of Am.,
511 U.S. 375, 377 (1994). Here, the court finds that expedited reviews are not among
the proceedings and determinations covered by section 1675 and, thus, do not fall
within the court’s (c) jurisdiction.
First, as Commerce itself acknowledged, an expedited review “is not an
administrative review” conducted pursuant to 19 U.S.C. § 1675(a)(1). I&D Mem. at 28;
see also id. at 26 (stating that expedited reviews and administrative reviews “are
separate proceedings that are governed by different regulations, promulgated according
to distinct authorities, and provide different remedies”).
Second, and more relevant here, an expedited review is not a new shipper
review. Commerce also acknowledged this fact, explaining:
Section 351.214 sets forth the procedures for conducting new shipper reviews, a
new procedure contained in [19 U.S.C. § 1675(a)(2)]. This section also
establishes a procedure for conducting an expedited review of exporters that are
not individually examined in countervailing duty investigations.
Court No. 19-00122 Page 13
Id. at 21 & n.136 (quoting Antidumping Duties; Countervailing Duties, 61 Fed. Reg.
7,308, 7,317 (Dep’t Commerce Feb. 27, 1996) (Notice of proposed rulemaking and
request for Public Comments) (“Proposed Rule Preamble”)) (emphasis in quotation).
According to Commerce, the emphasized portion of the Proposed Rule Preamble
distinguishes new shipper reviews from expedited reviews and is consistent with the
regulation, which “contains rules regarding requests for new shipper reviews and
procedures for conducting such review,” and, “[i]n addition, . . . contains rules regarding
requests for expedited reviews by noninvestigated exporters in certain countervailing
duty proceedings and procedures for conducting such reviews.” 19 C.F.R. § 351.214(a)
(emphasis added); see I&D Mem. at 22. Commerce noted additional differences
between new shipper reviews and expedited reviews with respect to the existence of
shipments of subject merchandise to the United States during the period of investigation
and the inability to post bonds in lieu of cash deposits. See I&D Mem. at 22 (concluding
that “a company qualifying for a CVD expedited review is not a new shipper”); compare
19 C.F.R. § 351.214(k)(3)(i), and id. § 351.214(k)(3)(ii), with id. § 351.214(g)(2), and id.
§ 351.214(e).
The Government (and others) does not assert that expedited reviews are new
shipper reviews. Indeed, they could not, as the foregoing demonstrates the fallacy of
that position and Commerce’s express disavowal. Instead, the Government relies on a
cross-reference to “the requirements of” section 1675(a)(2)(B) in subsection (b)(1) of the
new shipper regulation, applicable to expedited reviews by operation of subsection
(k)(3). Def.’s Mot. at 7–8; Def.’s Reply at 2; see also GOC’s Resp. at 5–6 (arguing
Court No. 19-00122 Page 14
same); Lemay’s Resp. at 5 (arguing same). None of these parties, however, cite any
authority for the proposition that an agency determination not specifically enumerated in
section 1675 is judicially reviewable as if it were, nor is the court aware of any.
Moreover, the argument defies common sense. Because expedited reviews are
not new shipper reviews, section 1675(a)(2)(B), which states the procedures for
conducting a new shipper review, is at least partially inapplicable to an expedited
review. For example, while section 1675(a)(2)(B) requires that the exporter or producer
(or its affiliate) did not export subject merchandise to the United States during the period
of investigation underlying a CVD order, 19 U.S.C. § 1675(a)(2)(B)(i), a respondent
requesting an expedited review must certify that it shipped subject merchandise to the
United States during the period of investigation, 19 C.F.R. § 351.214(k)(1)(i).
Additionally, while section 1675(a)(2)(B) requires Commerce to commence a new
shipper review no sooner than “in the calendar month beginning after [] the end of the 6-
month period beginning on the date of the countervailing duty or antidumping duty order
under review,” 19 U.S.C. § 1675(a)(2)(B)(ii), Commerce will initiate an expedited review
no later than the end of the second month following the date of publication in the
Federal Register of the CVD order, 19 C.F.R. § 351.214(k)(2). 11 Further, while the
results of a new shipper review “shall be the basis for the assessment of countervailing .
11 The regulation contains the following example: “The [agency] publishes a
countervailing duty order on January 15. An exporter would have to submit a request
for a review by February 14. The [agency] would initiate a review in March.” 19 C.F.R.
§ 351.214(k)(2)(ii).
Court No. 19-00122 Page 15
. . duties on [covered] entries,” 19 U.S.C. § 1675(a)(2)(C), the results of an expedited
review “will not be,” 19 C.F.R. § 351.214(k)(3)(iii). 12
The Government seeks to overcome these important distinctions by pointing to
similarities in the “purpose and result of new shipper reviews and expedited reviews.”
Gov’t’s Reply at 3. According to the Government, “both types of review establish an
individual rate, on an expedited basis, for companies that did not obtain one during the
investigation.” Id. at 5. The Government overlooks the fact that a respondent subject to
an expedited review obtains a cash deposit rate, see Final Results of Expedited
Review, 84 Fed. Reg. at 32,122 (issuing cash deposit instructions to CBP), whereas a
new shipper respondent obtains the rate at which final duty liability is assessed on
reviewed entries, see 19 C.F.R. § 351.211(b)(1) (explaining that, upon publication of an
antidumping or countervailing duty order, Commerce will instruct CBP “to assess . . .
countervailing duties . . . on the subject merchandise, in accordance with the [agency’s]
instructions at the completion of” either an administrative review, new shipper review, or
expedited antidumping review). That new shipper and expedited review rates are both
obtained on an expedited basis, without more, is insufficient to conflate the
determinations for purposes of this court’s jurisdiction. 13
12 Commerce may, however, “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.” Id. § 351.214(k)(3)(iv).
13 Section 1581 waives sovereign immunity for the types of cases specified therein.
See Humane Soc. of U.S. v. Clinton, 236 F.3d 1320, 1328 (Fed. Cir. 2001). While the
ambiguity respecting the reviewability of expedited reviews pursuant to the court’s (c)
jurisdiction is not, strictly speaking, found in section 1581, the principle that “ambiguities
in a statutory waiver of sovereign immunity must be construed in favor of immunity”
Court No. 19-00122 Page 16
In sum, the mere reference to “the requirements of” section 1675(a)(2)(B) in
subsection (b)(1) of the new shipper regulation does not render an expedited review
conducted pursuant to subsection (k) of the regulation a section 1675 determination. In
the absence of an explicit or otherwise apparent argument for finding expedited reviews
to fall within one of the remaining proceedings or determinations listed in section 1675,
the court finds that the Final Results of Expedited Review do not constitute a section
1675 determination that is judicially reviewable pursuant to 19 U.S.C.
§ 1516a(a)(2)(B)(iii) and 28 U.S.C. § 1581(c). 14
B. Section 1671d of Title 19 Does Not Cover Expedited Reviews
The Government argues that expedited reviews are “analogous to final
determinations under 19 U.S.C. § 1671d” that are judicially reviewable pursuant to 19
U.S.C. § 1516a(a)(2)(B) and 28 U.S.C. § 1581(c). 15 Gov’t’s Reply at 5. The
Government is incorrect.
counsels against broadly construing section 1675 to include expedited reviews. See
Hor Liang Industrial Corp. v. United States, 42 CIT ___, ___, 337 F. Supp. 3d 1310,
1318 n.11 (2018) (citing United States v. Williams, 514 U.S. 527, 531(1995)).
14 The court declines the Government of Canada’s and Fontaine’s invitation to defer
ruling on this matter pending full briefing on the merits of Commerce’s authority to
promulgate 19 C.F.R. § 351.214(k). Notably, Commerce did not promulgate the
regulation pursuant to 19 U.S.C. § 1675; rather Commerce relied on section 103(a) of
the Uruguay Round Agreements Act (“URAA”), 19 U.S.C. § 3513(a), in conjunction with
Article 19.3 of the Agreement on Subsidies and Countervailing Measures incorporated
into the Uruguay Round Agreements and the Statement of Administrative Action
accompanying the URAA. I&D Mem. at 19–20. Thus, the court may decide this
question of jurisdiction without reaching the merits of Commerce’s authority to
promulgate 19 C.F.R. § 351.214(k).
15 Plaintiff argued that expedited reviews are not section 1671d determinations in its
opposition to the Government’s motion, Pl.’s Opp’n at 10, and, in addressing this
argument in reply, the Government affirmatively raised this argument for the first time,
Court No. 19-00122 Page 17
The Government relies primarily on the court’s observation in Lumber I that
because an expedited review is intended to provide a non-investigated respondent with
an individual cash deposit rate, “the results of an expedited review are akin to a final
investigation determination.” Id. (quoting Lumber I, 393 F. Supp. 3d at 1278). That the
outcome of an expedited review operates in a manner “akin” to the outcome of a final
investigation determination (i.e., exclusion of respondents found to have zero or de
minimis rates) does not, however, confer on the former determination the statutory
authority underlying the latter.
The Government also points to the “similarity of data considered” and the
overlapping review periods. Id. However, Commerce set the period of review for
expedited reviews to overlap with the period of investigation used in the underlying CVD
investigation to allow the agency to use data from that investigation. Antidumping
Duties; Countervailing Duties, 62 Fed. Reg. 27,296, 27,321 (Dep’t Commerce May 19,
1997) (final rule). The overlapping data period is intended to aid in the expeditious
completion of the review, id.; it was not intended to—and does not—render an
expedited review a final determination pursuant to 19 U.S.C. § 1671d (or sufficiently
“analogous” for jurisdictional purposes). There are also certain differences between
Gov’t’s Reply at 5. Ordinarily, “arguments that are not appropriately developed in a
party’s briefing may be deemed waived.” United States v. Great Am. Ins. Co. of New
York, 738 F.3d 1320, 1328 (Fed. Cir. 2013). The U.S. Court of Appeals for the Federal
Circuit (“Federal Circuit”) has indirectly suggested that arguments relevant to subject
matter jurisdiction cannot be waived. See Metz v. United States, 466 F.3d 991, 998
(Fed. Cir. 2006) (finding that when an issue does not implicate the court’s subject matter
jurisdiction, an argument relevant to that issue may be waived). Accordingly, the court
considers—and rejects—the Government’s argument.
Court No. 19-00122 Page 18
expedited reviews and final investigation determinations regarding the time in which
Commerce must issue its determination and the effect of the determination. See 19
U.S.C. § 1671d(a)(1), (c). The Government does not explain why an expedited review
is analogous to a final investigation determination despite these differences; it simply
ignores them. See Gov’t’s Reply at 5. Accordingly, the court rejects the Government’s
analogy for jurisdictional purposes.
C. An Expedited Review Does Not Constitute the Agency’s
Reconsideration of a Prior Determination
The Government argues in the alternative that an expedited review is analogous
to the agency’s reconsideration of a “previously closed segment of a proceeding.” Id.
For this proposition the Government relies on Tokyo Kikai Seisakusho, Ltd. v. United
States, 529 F.3d 1352, 1360 (Fed. Cir. 2008). Id. at 6. 16 TKS is inapposite.
In TKS, the Federal Circuit recognized Commerce’s inherent authority to
reconsider the results of a prior administrative review and revocation of an antidumping
duty order based on evidence of fraud by the respondent. 529 F.3d at 1355–56, 1359–
60. As the court aptly noted, “[t]he power to reconsider is inherent in the power to
decide.” Id. at 1360. The Government’s reliance on TKS to aver that Commerce
“merely exercis[ed] its authority to reconsider its decision in a [CVD] investigation,”
Gov’t’s Reply at 6, represents counsel’s impermissible “post hoc rationalization[] for
agency action” that has no basis in the record, Burlington Truck Lines, Inc. v. United
States, 371 U.S. 156, 168–69 (1962). In conducting the expedited review, Commerce
16The Government also raised this argument for the first time in its reply; thus, other
parties were denied the opportunity to respond.
Court No. 19-00122 Page 19
did not rely on its inherent authority to reconsider a prior determination issued pursuant
to 19 U.S.C. § 1671d but instead relied on URAA § 103(a), 19 U.S.C. § 3513(a). Final
Results of Expedited Review, 84 Fed. Reg. at 32,122. Thus, the Government’s attempt
to analogize the expedited review to an agency reconsideration of a determination
judicially reviewable pursuant to the court’s (c) jurisdiction (or otherwise attempt to
recast as the basis for Commerce’s determination) must be rejected. 17
In sum, expedited reviews of a CVD order pursuant to 19 C.F.R. § 351.214(k)
do not fall within the statutory provisions identified as a basis for the court’s review
pursuant to 19 U.S.C. § 1516a. Thus, the court’s (c) jurisdiction is not available to
Plaintiff.
V. The Court Has Subject Matter Jurisdiction Pursuant to 28 U.S.C. § 1581(i)
As previously noted, 28 U.S.C. § 1581(i)(4) vests the court with exclusive
jurisdiction over “any civil action commenced against the United States, its agencies, or
its officers, that arises out of any law of the United States providing for . . . [the]
administration and enforcement with respect to the matters referred to in . . .
subsections (a)-(h) of this section.” The instant action arises out of the “administration
and enforcement” of domestic CVD laws, 19 U.S.C. §§ 1671 et seq. See Compl. ¶ 3.
In the absence of any explicit or otherwise apparent argument as to why the court
should not exercise (i) jurisdiction in the absence of (c) jurisdiction, the court finds that it
17 In any event, because Commerce had not previously calculated an individual rate for
the exporters and producers subject to the expedited review, instead assigning them the
all-others rate, see CVD Order, 83 Fed. Reg. at 348, Commerce did not, in fact,
reconsider a substantive aspect of its original determination.
Court No. 19-00122 Page 20
has jurisdiction to review the Final Results of Expedited Review pursuant to 28 U.S.C.
§ 1581(i)(4).
CONCLUSION & ORDER
For the reasons discussed herein, the Government’s motion to dismiss pursuant
to USCIT Rule 12(b)(1) for lack of subject matter jurisdiction is DENIED. The court will
exercise jurisdiction over this action pursuant to 28 U.S.C. § 1581(i)(4).
/s/ Mark A. Barnett
Mark A. Barnett, Judge
Dated: November 4, 2019
New York, New York