Mobilier Rustique (Beauce) Inc. v. United States

Slip Op. 21-104
UNITED STATES COURT OF INTERNATIONAL TRADE
COMMITTEE OVERSEEING ACTION
FOR LUMBER INTERNATIONAL TRADE
INVESTIGATIONS OR NEGOTIATIONS,
Plaintiff,
and
FONTAINE INC., ET AL.,
Consolidated Plaintiffs,
v.
UNITED STATES,
Defendant,
and
FONTAINE INC., ET AL.,
Defendant-Intervenors.
Before: Mark A. Barnett, Chief Judge
Consol. Court No. 19-00122
OPINION
[Sustaining the U.S. Department of Commerce’s remand determination that it lacked
statutory authority to promulgate 19 C.F.R. § 351.214(k); vacating 19 C.F.R.
§ 351.214(k) and the Final Results of Countervailing Duty Expedited Review; setting
parameters for prospective application of the vacatur.]
Dated: August 18, 2021
Lisa W. Wang, Andrew W. Kentz, David A. Yocis, Nathanial M. Rickard, Whitney M.
Rolig, 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.
Joanne E. Osendarp, McDermott Will & Emery LLP, of Washington, DC, for
Consolidated Plaintiff/Defendant-Intervenor Government of Canada.
Case 1:19-cv-00164-MAB Document 35 Filed 08/18/21 Page 1 of 48

Consol. Court No. 19-00122 	Page 2
Matthew J. Clark, Arent Fox LLP, of Washington, DC, for Consolidated
Plaintiff/Defendant-Intervenor Government of Québec.
Elliot J. Feldman, Baker & Hostetler, LLP, of Washington, DC, for Consolidated
Plaintiff/Defendant-Intervenor Fontaine Inc.
John R. Magnus, TradeWins LLC, of Washington, DC, for Consolidated
Plaintiff/Defendant-Intervenor Mobilier Rustique (Beauce) Inc.
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 Brian M. Boynton, Acting Assistant Attorney General, Jeanne E.
Davidson, Director, and Patricia M. McCarthy, Assistant Director. Of counsel on the
brief was Nikki Kalbing, Senior Attorney, Office of the Chief Counsel for Trade
Enforcement and Compliance, U.S. Department of Commerce, of Washington, DC.
Stephan E. Becker, Pillsbury Winthrop Shaw Pittman LLP, of Washington, DC, for
Defendant-Intervenor Government of New Brunswick.
Yohai Baisburd, Cassidy Levy Kent (USA) LLP, of Washington, DC, for Defendant-
Intervenor Scierie Alexandre Lemay & Fils Inc.
Edward M. Lebow, Haynes and Boone, LLP, of Washington, DC, for Defendant-
Intervenors Les Produits Forestiers D&G Ltée and Marcel Lauzon Inc.
Richard L.A. Weiner, Sidley Austin LLP, of Washington, DC, for Defendant-Intervenors
North American Forest Products Ltd, Parent-Violette Gestion Ltée, and Le Groupe
Parent Ltée.
Barnett, Chief Judge: In this consolidated action, Plaintiff, Committee Overseeing
Action for Lumber International Trade Investigations or Negotiations (“Plaintiff” or “the
Coalition”), challenged the U.S. Department of Commerce’s (“Commerce” or “the
agency”) authority to promulgate a regulation establishing an expedited review process
to determine individual countervailing duty (“CVD”) rates for exporters not individually
Case 1:19-cv-00164-MAB Document 35 Filed 08/18/21 Page 2 of 48

Consol. Court No. 19-00122 	Page 3
examined in an investigation. 1 See Compl. ¶¶ 15–16, ECF No. 2. Plaintiff disputed the
lawfulness of the regulation, 19 C.F.R. § 351.214(k), as part of its challenge to
Commerce’s final results in the CVD expedited review of certain softwood lumber
products from Canada. See Compl. ¶¶ 2, 14–22; see also Certain Softwood Lumber
Products From Canada, 84 Fed. Reg. 32,121 (Dep’t Commerce July 5, 2019) (final
results of CVD expedited review) (“Final Results of Expedited Review”), ECF No. 99-5,
and accompanying Issues and Decision Mem. (“I&D Mem.”), C-122-858 (June 28,
2019), ECF No. 99-6. 2 Plaintiff alleged that Commerce’s reliance on section 103(a) of
the Uruguay Round Agreements Act (“URAA” or “the Act”), Pub. L. No. 103-465, 108
Stat. 4809 (1994), as authority for its regulation was misplaced and, thus, that
Commerce’s promulgation of the regulation and issuance of the Final Results of
Expedited Review exceeded Commerce’s statutory authority. See Compl. ¶¶ 15–16.
In due course, the Coalition filed a motion for judgment on the agency record
pursuant to U.S. Court of International Trade (“USCIT” or “CIT”) Rule 56.2 incorporating
the foregoing claim. See Conf. Pl.’s Rule 56.2 Mot. for J. on the Agency R. and
accompanying Conf. Mem. in Supp. of Pl.’s Rule 56.2 Mot. for J. on the Agency R.
(“Pl.’s Mem.”), ECF No. 101. Defendant, United States (“Defendant” or “the
1 For ease of reference, the court characterizes the type of proceeding at issue in this
case as a “CVD expedited review.”
2 The administrative record associated with the Final Results of Expedited Review is
divided into a Public Administrative Record (“PR”), ECF No. 99-2, and a Confidential
Administrative Record, ECF Nos. 99-3, 99-4. Commerce also filed a public
administrative record associated with the Remand Results. See Index to Admin.
[Remand] R., ECF No. 177-2. Plaintiff filed a joint appendix of documents cited in
Parties’ comments on the Remand Results. See J.A. to Comments After Remand
(“PRJA”), ECF No. 191. .
Case 1:19-cv-00164-MAB Document 35 Filed 08/18/21 Page 3 of 48

Consol. Court No. 19-00122 	Page 4
Government”), and several Defendant-Intervenors consisting of Canadian softwood
lumber producers and governmental entities, defended the lawfulness of 19 C.F.R.
§ 351.214(k) and the underlying proceeding. Conf. Def.’s Resp. [to] Pls.’ Mots. For J.
on the Agency R., ECF No. 110; Joint Br. of Def.-Ints. Gov’t of Can. and Gov’t of Que. in
Opp’n to Pl.’s Mot. for J. on the Agency R. (“Jt. Canada Br.”), ECF No. 120; [Resp.] of
Def.-Ints. Les Produits Forestiers D&G Ltée and Marcel Lauzon Inc in Opp’n to Pl.’s
Mot. for J. on the Agency R., ECF No. 117; Resp. of Def.-Int. Scierie Alexandre Lemay
& Fils Inc. in Opp’n to Pl.’s Mot. for J. on the Agency R., ECF No. 119. 3
In Committee Overseeing Action for Lumber Int’l Trade Investigations or
Negotiations v. United States (“Lumber III”), the court held, inter alia, that “Commerce
exceeded its authority to the extent that it promulgated 19 C.F.R. § 351.214(k) pursuant
to URAA § 103(a).” 44 CIT ___, ___, 483 F. Supp. 3d 1253, 1263–64 (2020). 4 The
3 A complete list of Defendant-Intervenors in this action includes the Government of
Canada, the Government of Québec, the Government of the Province of New
Brunswick, Fontaine Inc. (“Fontaine”), Marcel Lauzon Inc. (“Lauzon”), Les Produits
Forestiers D&G Ltee (“D&G”), North American Forest Products Ltd. (“NAFP”), Parent-
Violette Gestion Ltee, Le Groupe Parent Ltee, Scierie Alexandre Lemay & Fils Inc.
(“Lemay”), and Mobilier Rustique (Beauce) Inc. (“Rustique”). See Docket.
4 Prior to Lumber III, the court issued an opinion vacating a temporary restraining order
requested by the Coalition barring U.S. Customs and Border Protection (“CBP”) from
liquidating unliquidated entries of softwood lumber produced or exported by Canadian
companies that received reduced or de minimis rates in the Final Results of Expedited
Review and denying the Coalition’s corresponding request for a preliminary injunction.
See Comm. Overseeing Action for Lumber Int’l Trade Investigations or Negots. v.
United States (“Lumber I”), 43 CIT ___, 393 F. Supp. 3d 1271 (2019). The court also
issued an opinion denying the Government’s motion to dismiss pursuant to USCIT Rule
12(b)(1) for lack of subject matter jurisdiction. See Comm. Overseeing Action for
Lumber Int’l Trade Investigations or Negots. v. United States (“Lumber II”), 43 CIT ___,
___, 413 F. Supp. 3d 1334 (2019). While the court summarizes the relevant legal and
factual background herein, familiarity with prior opinions is presumed.
Case 1:19-cv-00164-MAB Document 35 Filed 08/18/21 Page 4 of 48

Consol. Court No. 19-00122 	Page 5
court remanded the Final Results of Expedited Review for Commerce to consider
various post hoc justifications for the regulation offered by Defendant and the
Governments of Canada and Québec and declined to vacate the regulation pending
Commerce’s remand redetermination. See id. at 1272–73.
The matter is now before the court following Commerce’s redetermination upon
remand. See Final Results of Redetermination Pursuant to Court Remand (“Remand
Results”), ECF No. 173-1. On remand, Commerce addressed two issues: (1) whether
any statutory authority existed for the agency’s promulgation of 19 C.F.R. § 351.214(k);
and (2) in the absence of such authority, what actions Commerce should take with
respect to entries of subject merchandise exported or produced by companies subject
to the CVD expedited review (collectively referred to as “the subject companies”) in the
event the court annuls the Final Results of Expedited Review. See generally id.
As will be discussed in further detail below, Commerce concluded that it could
not identify an explicit or implicit statutory basis for its regulation that would be
consistent with the court’s opinion in Lumber III. See id. at 9–12, 19–25. Commerce
further indicated that it intended to follow the procedure set forth in 19 U.S.C.
§ 1516a(c)(1) with respect to the subject companies, such that “the effect of this
decision would be prospective” and “the rates established as a result of the [CVD]
expedited review would cease to apply 10 days after publication of [a] Notice of Court
Decision Not in Harmony in the Federal Register.” Id. at 28 & n.124 (citation omitted). 5
5 Section 1516a(c)(1) requires Commerce to publish in the Federal Register “a notice of
a decision of the United States Court of International Trade, or of the United States
Case 1:19-cv-00164-MAB Document 35 Filed 08/18/21 Page 5 of 48

Consol. Court No. 19-00122 	Page 6
The Coalition filed comments opposing Commerce’s decision to follow 19 U.S.C.
§ 1516a(c)(1) and arguing that the court should instead vacate 19 C.F.R. § 351.214(k)
and annul the Final Results of Expedited Review. See Pl.’s Cmts. on [Remand Results]
(“Pl.’s Opp’n Cmts.”), ECF No. 182. Defendant-Intervenors (collectively referred to
herein as “the Canadian Parties”) filed comments arguing that Commerce’s analysis of
its statutory authority for the regulation was perfunctory and deficient; considerations of
equity preclude rescission of the Final Results of Expedited Review; and, to the extent
the Final Results of Expedited Review are rescinded, any revised rates should be
prospective only. See Consol. Def.-Ints.’ Cmts. in Resp. to [Commerce’s] February 17,
2021 [Remand Results] (“Def.-Ints.’ Opp’n Cmts”), ECF No. 183.
Court of Appeals for the Federal Circuit, not in harmony with [the underlying]
determination . . . within ten days from the date of the issuance of the court decision.”
19 U.S.C. § 1516a(c)(1). Such notice may be referred to as a “Timken Notice” pursuant
to Timken Co. v. United States, 893 F.2d 337, 341 (Fed. Cir. 1990). The statute further
requires the Timken Notice to apply to imports entered or withdrawn from warehouse on
or after the date of publication of the Timken Notice. 19 U.S.C. § 1516a(e)(1). When
Commerce misses the ten-day deadline for publication of the Timken Notice,
Commerce regularly applies its Timken Notices as of the date that is ten days following
issuance of the court decision. See, e.g., Large Power Transformers From the Republic
of Korea, 86 Fed. Reg. 38,980 (Dep’t Commerce July 23, 2021) (notice of court decision
not in harmony with final results, notice of amended results of review; 2015-16) (where
the court issued judgment on July 9, 2021 and the Timken Notice was effective as of
July 19, 2021); Drawn Stainless Steel Sinks From the People’s Republic of China, 81
Fed. Reg. 57,474, 58,474 (Dep’t Commerce Aug. 25, 2016) (notice of court decision not
in harmony with am. final determination pursuant to court decision) (where the court
issued judgment on July 24, 2016 and the Timken Notice was effective as of July 24,
2016); Certain New Pneumatic Off-the-Road Tires From the People’s Republic of
China, 78 Fed. Reg. 70,917 (Dep’t Commerce Nov. 27, 2013) (notice of decision of the
[CIT] not in harmony and notice of amended final determination) (where the court issued
judgment on October 30, 2013 and the Timken Notice was effective as of November 9,
2013). Commerce appears to have misstated its position in the Remand Results.
Case 1:19-cv-00164-MAB Document 35 Filed 08/18/21 Page 6 of 48

Consol. Court No. 19-00122 	Page 7
The Government filed comments arguing that Commerce’s Remand Results
comply with the court’s directive in Lumber III to consider alternative legal bases for the
regulation; Commerce is not precluded from relying on 19 U.S.C. § 1516a(c)(1) to
implement the court’s judgment; and any equitable remedy lies solely within the
court’s—not the agency’s—discretion. See Def.’s Resp. to the Parties’ Remand Cmts.
(“Def.’s Reply Cmts.”), ECF No. 186. The Canadian Parties filed comments in reply to
the Coalition’s opposition comments. See Consol. Def.-Ints.’ Cmts. in Resp. to Pl.’s
March 19, 2021 Cmts. on [Remand Results] (“Def.-Ints.’ Reply Cmts.”), ECF No. 187.
The Coalition likewise filed comments in reply to the Canadian Parties’ opposition
comments. See Pl.’s Cmts. in Supp. Of [Remand Results] (“Pl.’s Reply Cmts.”), ECF
No. 188.
For the reasons discussed herein, the court will sustain Commerce’s Remand
Results and vacate 19 C.F.R. § 351.214(k) and the Final Results of Expedited Review.
The court further orders prospective application of its judgment in this case.
BACKGROUND
The URAA amended the domestic antidumping (“AD”) and CVD laws in
connection with several international trade agreements referred to as the Uruguay
Round Agreements. See 19 U.S.C. §§ 3511(a)(1), (d), & 3501(7). 6 One such
agreement is the Agreement on Subsidies and Countervailing Measures (“SCM
6 Section 101(a) of the URAA reflects congressional approval of “the trade agreements
described in subsection (d) resulting from the Uruguay Round of multilateral trade
negotiations.” 19 U.S.C. § 3511(a)(1). Section 101(b) of the URAA provided for the
President’s acceptance of the Uruguay Round Agreements. See id. § 3511(b).
Case 1:19-cv-00164-MAB Document 35 Filed 08/18/21 Page 7 of 48

Consol. Court No. 19-00122 	Page 8
Agreement”). Id. § 3511(d)(12); see generally Agreement Establishing the World Trade
Organization, Apr. 15, 1994, 1869 U.N.T.S. 14, Annex 1A, SCM Agreement. Pursuant
to Article 19.3 of the SCM Agreement:
When a countervailing duty is imposed in respect of any product, such
countervailing duty shall be levied, in the appropriate amounts in each
case, on a non-discriminatory basis on imports of such product from all
sources found to be subsidized and causing injury, except as to imports
from those sources which have renounced any subsidies in question or
from which undertakings under the terms of this Agreement have been
accepted. Any exporter whose exports are subject to a definitive
countervailing duty but who was not actually investigated for reasons other
than a refusal to cooperate, shall be entitled to an expedited review in
order that the investigating authorities promptly establish an individual
countervailing duty rate for that exporter.
SCM Agreement, art. 19.3 (emphasis added).
The Statement of Administrative Action (“SAA”) accompanying the URAA
explains that “Article 19.3 of the [SCM] 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.” URAA, SAA, H.R. Doc. No. 103–316, vol.1, at
941–42 (1994), reprinted in 1994 U.S.C.C.A.N. 4040, 4250–51. 7 The SAA noted that
“[s]everal changes must be made to the [Tariff Act of 1930] to implement the
requirements of Article 19.3.” Id. Thereafter, while the SAA discusses several
7 Congress expressly approved the SAA in the URAA. See 19 U.S.C. § 3511(a)(2).
Further, 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 [i.e., the URAA] in any judicial proceeding in which a question arises concerning
such interpretation or application.” Id. § 3512(d).
Case 1:19-cv-00164-MAB Document 35 Filed 08/18/21 Page 8 of 48

Consol. Court No. 19-00122 	Page 9
necessary changes to U.S. trade laws effectuated by sections 264, 265, and 269 8 of the
URAA, id. at 941–42, reprinted in 1994 U.S.C.C.A.N. at 4251, the SAA does not discuss
the implementation of CVD expedited reviews.
Section 103 of the URAA delegated authority to Commerce, among others, to
promulgate interim and final regulations implementing the provisions of the Act. See 19
U.S.C. § 3513. Section 103(a) of the URAA delegates authority to “appropriate officers
of the United States Government [to] issue such regulations, as may be necessary to
ensure that any provision of this Act, or amendment made by this Act, . . . is
appropriately implemented.” Id. § 3513(a)(2). Section 103(b) of the URAA authorized
the promulgation of “interim regulation[s] necessary or appropriate to carry out any
action proposed in the [SAA] approved under section 3511(a) of this title to implement
an agreement described in section 3511(d)(7), (12), or (13) of this title” within “[one]
year after the date on which the agreement enters into force with respect to the United
States.” Id. § 3513(b).
On May 11, 1995, Commerce issued interim regulations. See Antidumping and
Countervailing Duties, 60 Fed. Reg. 25,130 (Dep’t Commerce May 11, 1995) (interim
regulations; request for cmts.). Commerce’s interim regulations did not address CVD
expedited reviews. See id. at 25,130–33 (discussing the regulations).
On May 19, 1997, Commerce published its final agency regulations concerning
the implementation of the URAA. See Antidumping Duties; Countervailing Duties, 62
8 The SAA misattributes changes made by URAA § 269 to URAA § 265. See SAA at
941–42, reprinted in 1994 U.S.C.C.A.N. at 4251; URAA § 269(a) (amending 19 U.S.C.
§ 1677f-1 to add new subsection (e)).
Case 1:19-cv-00164-MAB Document 35 Filed 08/18/21 Page 9 of 48

Consol. Court No. 19-00122 	Page 10
Fed. Reg. 27,296 (Dep’t Commerce May 19, 1997) (final rule) (“Preamble”). These
regulations finalized new provisions governing new shipper reviews. See id. at 27,318–
22 (discussing 19 C.F.R. § 351.214). Subsection (k) of the new shipper regulation also
provided for Commerce’s implementation of CVD expedited reviews. See 19 C.F.R.
§ 351.214(k) (1998); Preamble, 62 Fed. Reg. at 27,321.
Subsection (k) of the new shipper regulation permits a respondent that was not
selected “for individual examination” or accepted “as a voluntary respondent” in a CVD
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 [CVD] order.” 19 C.F.R. § 351.214(k)(1). Any company
requesting a CVD expedited review must certify compliance with certain regulatory
requirements. See id. § 351.214(k)(1)(i)–(iii). 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). 9
9 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;
(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
Case 1:19-cv-00164-MAB Document 35 Filed 08/18/21 Page 10 of 48

Consol. Court No. 19-00122 	Page 11
On January 3, 2018, following affirmative determinations of countervailable
subsidization and material injury, Commerce published the CVD order on certain
softwood lumber products from Canada. 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”). On March 8, 2018, Commerce initiated
an expedited review of the CVD Order with respect to certain Canadian producers that
were not selected for individual examination during the investigation and had been
assigned the “all-others” rate of 14.19 percent. See Certain Softwood Lumber Products
From Canada, 83 Fed. Reg. 9,833 (Dep’t Commerce Mar. 8, 2018) (initiation of
expedited review of the [CVD Order]); CVD Order, 83 Fed. Reg. at 348–49 (noting the
all-others rate).
On July 5, 2019, Commerce issued the Final Results of Expedited Review,
pursuant to which the agency calculated reduced rates for Fontaine and its cross-owned
affiliates, Rustique and its cross-owned affiliates, and Matra and Sechoirs de Beauce
Inc. (together, “Matra”) and their cross-owned affiliate. See 84 Fed. Reg. at 32,122.
Commerce calculated de minimis rates for D&G and its cross-owned affiliates, Lauzon
and its cross-owned affiliates, NAFP and its cross-owned affiliates, Roland Boulanger &
Cie Ltée (“Roland”) and its cross-owned affiliates, and Lemay and its cross-owned
affiliates. See id.
countervailable subsidy rate of zero or de minimis . . . , provided that the
[agency] has verified the information on which the exclusion is based.
19 C.F.R. § 351.214(k)(3) (citation omitted).
Case 1:19-cv-00164-MAB Document 35 Filed 08/18/21 Page 11 of 48

Consol. Court No. 19-00122 	Page 12
Because D&G, Lauzon, NAFP, Roland, Lemay, and their respective affiliates
(collectively, “the excluded companies”) obtained de minimis rates, 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 by” those companies; and “refund all cash
deposits of estimated countervailing duties collected on all such shipments.” Id. With
respect to the companies that received a lower—but not de minimis—rate (Fontaine,
Rustique, Matra, and their respective affiliates) (collectively, “the non-excluded
companies”), 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.
For the Final Results of Expedited Review, Commerce relied on section 103(a) of
the URAA as authority for 19 C.F.R. § 351.214(k) and its conduct of CVD expedited
reviews. See I&D Mem. at 18–20. The court’s examination of the statutory text,
structure, and legislative history compelled the court to conclude otherwise. See
Lumber III, 483 F. Supp. 3d at 1263–64.
The court reasoned that, in section 103(a), Congress explicitly limited
Commerce’s regulatory authority to enacted provisions and did not “encompass
perceived international obligations that Congress did not implement through the URAA.”
Case 1:19-cv-00164-MAB Document 35 Filed 08/18/21 Page 12 of 48

Consol. Court No. 19-00122 	Page 13
Id. at 1264; see also id. at 1264–66. 10 With respect to statutory structure, the court
explained, inter alia, that URAA § 103(b) did not authorize or otherwise support
Commerce’s promulgation of 19 C.F.R. § 351.214(k) “because the SAA does not
propose any action to implement CVD expedited reviews.” Id. at 1267. The court
reviewed the SAA and other relevant legislative history and concluded that, on balance,
it supported Plaintiff’s position. See id. at 1269. Lastly, the court rejected the argument
that Congress has acquiesced to Commerce’s interpretation of section 103(a). See id.
at 1269–71. The court remanded the Final Results of Expedited Review for Commerce
to consider additional justifications for its regulation. See id. at 1271–73.
In the Remand Results, Commerce considered several alternative bases for its
regulation. 11 With respect to section 103(b) of the URAA, Commerce opined that the
statutory provision governing interim regulations, in conjunction with the reference to
Article 19.3 of the SCM Agreement in the SAA, reflects congressional intent “for
10 The court further explained that congressional silence concerning CVD expedited
reviews did not confer authority on Commerce to conduct such reviews, Lumber III, 483
F. Supp. 3d at 1264–66; the court’s interpretation of URAA § 103(a) was “consistent
with the non-self-executing nature of the Uruguay Round Agreements,” id. at 1366; and
“[t]he judicial canon of statutory construction referred to as the Charming Betsy doctrine
[did] not compel a different outcome” because “[s]ection 103(a) does not . . . directly
implement the United States’ international obligations,” id. at 1267 (citing Murray v.
Schooner Charming Betsy, 6 U.S. 64 (1804)).
11 Commerce briefly revisited section 103(a) of the URAA. While Commerce
“presume[d],” consistent with Lumber III, that the provision does not convey “explicit or
implicit authority to conduct CVD expedited reviews,” Commerce stated that in
promulgating 19 C.F.R. § 351.214(k), the agency “ensured that all provisions of U.S.
law are consistent with U.S. obligations under the URAA.” Remand Results at 24.
While Commerce presumably intended to refer to the Uruguay Round Agreements and
not the URAA, Commerce did not, however, identify the particular obligation to which it
referred.
Case 1:19-cv-00164-MAB Document 35 Filed 08/18/21 Page 13 of 48

Consol. Court No. 19-00122 	Page 14
Commerce to have the inherent and implicit authority to conduct [CVD] expedited
reviews and to issue regulations providing for such reviews.” Remand Results at 22.
Commerce, however, considered itself “bound by the [c]ourt’s holding,” id. at 22–23 &
n.100 (citing Lumber III, 483 F. Supp. 3d at 1267), and, thus, “presume[d]” that section
103(b) does not authorize the regulation, id. at 23.
Commerce also addressed congressional approval of the SCM Agreement in
section 101(a) of the URAA and concluded that such a “general reference” does not
confer “express” statutory authority for the regulation. Id. at 11. Commerce found,
however, that section 101(a)–(b) of the URAA, together with section 103(a)–(b), affords
Commerce “inherent authority” to promulgate 19 C.F.R. § 351.214(k) and conduct CVD
expedited reviews. Id. at 23. Nevertheless, because the court previously found “that no
provision of the URAA provides for CVD expedited reviews,” Commerce concluded that
it lacked “inherent authority” to promulgate the regulation pursuant to URAA § 101. Id.
With respect to “sections 705(c), 751(a), 751(b), and 777A(e) of the [Tariff Act of
1930],” codified at 19 U.S.C. §§ 1671d, 1675(a),(b), and 1677f-1, Commerce concluded
that none of those provisions provide authority for 19 C.F.R. § 351.214(k) or the conduct
of CVD expedited reviews. Id. Specifically, Commerce explained that: (1) 19 U.S.C.
§ 1671d addresses final CVD investigation determinations, id. at 11; (2) 19 U.S.C.
§ 1675(b) governs changed circumstance reviews, id.; (3) 19 U.S.C. § 1677f-1 governs
Commerce’s calculation of “individual subsidy rates for each known exporter or
producer in investigations or administrative reviews” or a reasonable number thereof,
id.; and (4), with respect to 19 U.S.C. § 1675(a), “[CVD expedited reviews and
Case 1:19-cv-00164-MAB Document 35 Filed 08/18/21 Page 14 of 48

Consol. Court No. 19-00122 	Page 15
administrative reviews] are separate proceedings that are governed by different
regulations, promulgated according to distinct authorities, and provide different
remedies,” id. at 12 (quoting I&D Mem. at 26) (alteration in original); see also id. at 19–
21.
Commerce also “presume[d]” that “Congress’s failure to prohibit CVD expedited
reviews in recent amendments to the [Tariff Act of 1930]” does not signal congressional
acquiescence to Commerce’s conduct of CVD expedited reviews. Id. at 10. Commerce
further “concluded that Commerce’s inherent authority to reconsider prior decisions, and
lack of an explicit prohibition on CVD expedited reviews, do not equate to specific
statutory authorization under the URAA to conduct CVD expedited reviews and
promulgate CVD expedited review regulations.” Id. at 10–11; see also id. at 21.
Commerce therefore concluded that it lacked statutory authority to promulgate 19
C.F.R. § 351.214(k) and conduct CVD expedited reviews. See id. at 12.
With respect to Commerce’s treatment of companies covered by the Final
Results of Expedited Review, Commerce explained that, pursuant to 19 U.S.C.
§ 1516(c)(1), 12 any change in the applicable rates “would be prospective.” Id. at 28.
12 The statute provides that,
“[u]nless such liquidation is enjoined by the court . . ., entries of
merchandise of the character covered by a determination of [Commerce]
contested under subsection (a) shall be liquidated in accordance with the
determination . . . if they are entered, or withdrawn from warehouse, for
consumption on or before the date of publication in the Federal Register
by [Commerce] of a notice of a decision of the United States Court of
International Trade, or of the United States Court of Appeals for the
Federal Circuit, not in harmony with that determination.”
Case 1:19-cv-00164-MAB Document 35 Filed 08/18/21 Page 15 of 48

Consol. Court No. 19-00122 	Page 16
J URISDICTION AND S TANDARD OF REVIEW
The court exercises jurisdiction pursuant to 28 U.S.C. § 1581(i)(4). 13 The court
reviews an action commenced pursuant to 28 U.S.C. § 1581(i)(4) in accordance with
the standard of review set forth in the Administrative Procedure Act (“APA”), 5 U.S.C.
§ 706, as amended. See 28 U.S.C. § 2640(e). Section 706 directs the court, inter alia,
to “hold unlawful and set aside agency action, findings, and conclusions found to be . . .
arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
[or] . . . in excess of statutory jurisdiction, authority, or limitations, or short of statutory
right.” 5 U.S.C. § 706(2)(A), (C).
DISCUSSION
I. 	Commerce’s Authority to Promulgate 19 C.F.R. § 351.214(k) and Conduct
CVD Expedited Reviews
A. Parties’ Contentions
The Canadian Parties contend that, “with the partial exception of 19 U.S.C.
§ 1675(a)(1) and section 103(b) of the URAA,” Commerce did not meaningfully engage
“with each of the alternative bases.” Def.-Ints.’ Opp’n Cmts. at 2. They urge the court
to remand again for Commerce to do so. See id. at 4. The Canadian Parties further
contend that 19 U.S.C. § 1675(a)(1) and URAA § 103(b) provide authority for
19 U.S.C. § 1516a(c)(1). As noted, the court declined to enjoin liquidation of the subject
companies’ entries pending the outcome of this litigation. See Lumber I, 393 F. Supp.
3d at 1278—79.
13 In Lumber II, the court denied the Government’s motion to dismiss, finding jurisdiction
pursuant to section 1581(i)(4) and not under section 1581(c). See 413 F. Supp. 3d at
1343–47. CVD expedited reviews do not fall within the statutory provisions identified as
a basis for the court’s review pursuant to 19 U.S.C. § 1516a and, consequently, the
court’s section 1581(c) jurisdiction is not available. See id. at 1346.
Case 1:19-cv-00164-MAB Document 35 Filed 08/18/21 Page 16 of 48

Consol. Court No. 19-00122 	Page 17
Commerce to conduct CVD expedited reviews and request the court to reconsider its
position concerning the language of section 103(b). See id. at 6–19. The Canadian
Parties incorporate by reference prior arguments addressing additional statutory bases.
See id. at 4 n.13 (citing Jt. Canada Br. at 22–29).
The Government contends that Commerce adequately considered the alternative
legal bases for CVD expedited reviews and, thus, “further remand is unnecessary.”
Def.’s Reply Cmts. at 6; see also id. at 6–9.
The Coalition contends that the Canadian Parties misconstrue the standard of
review. See Pl.’s Reply Cmts. at 4. According to the Coalition, the court’s review of the
statutory bases considered by Commerce on remand “is predicated on the [c]ourt’s
analysis of the statutory text, . . . not whether Commerce has provided sufficient
explanation of its conclusion under the substantial evidence standard of review.” Id. at
5. The Coalition further contends that “the plain language of 19 U.S.C. §§ 1671d(c),
1675(b), and 1677f-1(e) is unambiguous” and does not authorize Commerce’s
promulgation of 19 C.F.R. § 351.214(k). Id. at 5. The Coalition also contends that the
court has previously found that 19 U.S.C. § 1675(a)(1) does not contemplate CVD
expedited reviews, see id. at 6 (citing Lumber II, 413 F. Supp. 3d at 1343), and the court
should decline the Canadian Parties’ invitation to reconsider its findings concerning
URAA § 103(b), see id. at 7–8.
B. Commerce’s Remand Results Will Be Sustained
The court remanded the Final Results of Expedited Review for Commerce to
consider whether any statutory provision other than URAA § 103(a) “authoriz[ed] the
Case 1:19-cv-00164-MAB Document 35 Filed 08/18/21 Page 17 of 48

Consol. Court No. 19-00122 	Page 18
agency’s promulgation of 19 C.F.R. § 351.214(k).” Lumber III, 483 F. Supp. 3d at
1272–73. Commerce considered the proffered bases; as to each, Commerce either
presumed that it was incapable of conferring authority in light of the court’s prior
statements, see Remand Results at 10, 22–24, or concluded that the provision did not
authorize the regulation, see id. at 11–12, 19–21.
The APA provides the scope of judicial review governing this action. The court
therefore reviews Commerce’s determination that it lacks authority for its regulation
pursuant to 5 U.S.C. § 706(2)(A). Thus, the court considers whether Commerce’s
explanation is “arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law.” 5 U.S.C. § 706(2)(A); cf., e.g., Serv. Women’s Action Network v.
Sec’y of Veterans Affs., 815 F.3d 1369, 1374 (Fed. Cir. 2016) (applying the same
standard to a denial of a petition for rulemaking); Preminger v. Sec’y of Veterans Affs.,
632 F.3d 1345, 1353 (Fed. Cir. 2011) (same).
While the Canadian Parties take issue with the depth of Commerce’s analysis of
certain statutory provisions, see, e.g., Def.-Ints.’ Opp’n Cmts. at 2–4, Commerce
considered these alternatives and explained its reasons for finding that the provisions
do not support the regulation. See Remand Results at 9–12, 19–25. Thus, a remand
for further consideration is unnecessary. Moreover, the Canadian Parties do not
develop the argument that Commerce’s determination is arbitrary, capricious, or an
abuse of discretion. Instead, they argue that Commerce’s statutory interpretations are
largely incorrect. See Def.-Ints.’ Opp’n Cmts. at 4 n.13, 6–12. To resolve these
contentions, the court is guided by the two-part framework set forth in Chevron U.S.A.
Case 1:19-cv-00164-MAB Document 35 Filed 08/18/21 Page 18 of 48

Consol. Court No. 19-00122 	Page 19
Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842–45 (1984). 14 Cf.
Nat’l Customs Brokers & Forwarders Ass’n of Am., Inc. v. United States, 883 F.2d 93,
96–97 (D.C. Cir. 1989) (explaining that the court will reverse “an agency’s decision not
to initiate a rulemaking only for compelling cause, such as plain error of law or a
fundamental change in the factual premises previously considered by the agency,” and
restating that, pursuant to Chevron, when congressional intent is unclear, the court must
accept an agency’s reasonable interpretation of the substantive terms of a statute the
agency is charged with administering); Serv. Women’s Action Network, 815 F.3d at
1375.
The Canadian Parties concede that there is no explicit statutory authority for
CVD expedited reviews but argue instead that certain statutory provisions are
nevertheless broad enough to encompass CVD expedited reviews pursuant to a
Chevron prong two analysis. See Def.-Ints.’ Opp’n Cmts. at 4 n.13 (citing Jt. Canada
Br. at 22–29); id. at 6–12. The court agrees with the Government, however, that
Commerce analyzed each provision and explained its position as to why the provision
did not confer authority for Commerce’s promulgation of 19 C.F.R. § 351.214(k).
With respect to section 1675(a)(1), the statute provides for an administrative
review of an order “[a]t least once during each 12-month period beginning on the
14 Pursuant to Chevron, the court must first determine “whether Congress has directly
spoken to the precise question at issue.” 467 U.S. at 842. If Congress's intent is clear,
“that is the end of the matter,” and the court “must give effect to the unambiguously
expressed intent of Congress.” Id. at 842–43. However, “if the statute is silent or
ambiguous,” the court must determine whether the agency’s action “is based on a
permissible construction of the statute.” Id. at 843.
Case 1:19-cv-00164-MAB Document 35 Filed 08/18/21 Page 19 of 48

Consol. Court No. 19-00122 	Page 20
anniversary of the date of publication of a countervailing duty order under this subtitle.”
19 U.S.C. § 1675(a)(1)(A). The Canadian Parties’ argument turns, in part, on the notion
that there is nothing in the statute that “precludes reviews prior to the anniversary of the
publication of an order, limits reviews to only one per each twelve-month period, or
limits what can be reviewed with respect to an order.” Def.-Ints.’ Opp’n Cmts. at 8. The
U.S. Court of Appeals for the Federal Circuit (“Federal Circuit”) has, however, “squarely
rejected” the argument that an agency may rely on statutory silence to conduct a
proceeding in years other than those provided by statute. Lumber III, 483 F. Supp. 3d
at 1264–65 (discussing FAG Italia S.p.A. v. United States, 291 F.3d 806 (Fed. Cir.
2002), a case in which the appellate court rejected Commerce’s reliance on statutory
silence to conduct a duty absorption inquiry in years other than those identified in 19
U.S.C. § 1675(a)(4)). Section 1675(a)(1) plainly governs reviews beginning no sooner
than one year following the date of publication of an order; thus, it cannot confer
authority for a CVD expedited review proceeding initiated just two months after
publication of an order. See 19 C.F.R. § 351.214(k)(1)–(2) (discussing deadlines
governing requests for and initiation of CVD expedited reviews); Remand Results at 20–
21 (noting the differing timelines for administrative reviews and CVD expedited reviews).
Section 1675(b)(1) governs changed circumstances reviews. Commerce may
grant a request for such a review of a countervailing duty investigation determination
when there are “changed circumstances sufficient to warrant a review.” 19 U.S.C.
§ 1675(b)(1). Absent good cause, however, Commerce may not conduct a changed
circumstances review of a determination sooner than “24 months after the date of
Case 1:19-cv-00164-MAB Document 35 Filed 08/18/21 Page 20 of 48

Consol. Court No. 19-00122 	Page 21
publication of notice of that determination.” Id. § 1675(b)(4). In prior briefing, the
Governments of Canada and Québec argued, inter alia, that a non-individually
examined company “can show ‘good cause’ that circumstances have changed” to the
extent the company’s assigned rate “bears little resemblance to the company’s actual
subsidy rate.” Jt. Canada Br. at 26. Setting aside the fact that the period of review for a
CVD expedited review matches the period of investigation used in the investigation, 19
C.F.R. § 351.214(k)(3)(i), and Commerce therefore uses some of the same data, see
Preamble, 62 Fed. Reg. at 27,321, the regulation does not contain a “good cause”
requirement necessary to merit excusal from the statutory timeline, 19 C.F.R.
§ 351.214(k)(1) (stating the requirements for a request for a CVD expedited review).
Thus, Commerce reasonably interpreted section 1675(b)(1) as not providing authority
for the regulation.
Commerce also rejected 19 U.S.C. § 1671d as a basis for its regulation. See
Remand Results at 19–21. Section 1671d governs final investigation determinations.
The Governments of Canada and Québec pointed to statutory language requiring
Commerce to “determine an estimated individual countervailable subsidy rate for each
exporter and producer individually investigated,” 19 U.S.C. § 1671d(c)(1)(B)(i)(I), to
argue that “nothing . . . in that language requir[es] such individual investigation to occur
during the original investigation,” Jt. Canada Br. at 26. The Governments of Canada
and Québec take the quoted statutory language out of context. Section 1671d(c)
governs the effect of final affirmative determinations issued pursuant to section
1671d(a). See 19 U.S.C. § 1671d(c)(1). Subsection (a) provides, in general, for a final
Case 1:19-cv-00164-MAB Document 35 Filed 08/18/21 Page 21 of 48

Consol. Court No. 19-00122 	Page 22
determination as to “whether or not a countervailable subsidy is being provided with
respect to the subject merchandise” within 75 days of the preliminary determination. Id.
§ 1671d(a)(1). Commerce’s preliminary determination, in turn, is generally due within
65 days following the date on which Commerce initiated an investigation. Id.
§ 1671b(b)(1). Section 1671d(c)(1)(B)(i)(I) therefore states the requirements for
Commerce’s subsidy calculations as part of its final investigation determination—not in
some later-conducted and entirely separate segment of the proceeding. Accordingly,
Commerce correctly interpreted 19 U.S.C. § 1671d as not providing authority for 19
C.F.R. § 351.214(k). 15
The Canadian Parties also argue that Commerce correctly concluded that URAA
§ 103(b) authorized 19 C.F.R. § 351.214(k) and request the court to reconsider its
position with respect to that provision. See Def.-Ints.’ Opp’n at 12–19. 16
15 The Canadian Parties do not present (or incorporate by reference) any arguments
addressing Commerce’s findings with respect to 19 U.S.C. § 1677f-1 functioning as sole
authority for CVD expedited reviews or Commerce’s inherent authority to reconsider
prior determinations. See Remand Results at 11, 19–21.
16 The Canadian Parties fail to identify any relevant rule or standard governing the
court’s reconsideration with respect to this issue. See Def.-Ints.’ Opp’n at 12–19.
Plaintiff argues that the Canadian Parties’ request for reconsideration “is equivalent to a
motion for reconsideration under USCIT Rule 59.” Pl.’s Reply Cmts. at 8. Rule 59(e),
which permits the court to consider “[a] motion to alter or amend a judgment” which is
served “no later than 30 days after the entry of the judgment,” USCIT Rule 59(e), is
inapplicable to a non-final order, see Cabot Corp. v. United States, 788 F.2d 1539, 1542
(Fed. Cir. 1986) (noting the general rule that “[a]n order remanding a matter to an
administrative agency for further findings and proceedings is not final,” and, therefore,
not appealable) (citation omitted). Nevertheless, pursuant to USCIT Rule 54(b), “any
order or other decision . . . that adjudicates fewer than all the claims . . . does not end
the action as to any of the claims . . . and may be revised at any time before the entry of
a judgment adjudicating all the claims . . . .” Accordingly, the Canadian Parties’ request
is properly considered under USCIT Rule 54(b). See ABB Inc. v. United States, 42 CIT
Case 1:19-cv-00164-MAB Document 35 Filed 08/18/21 Page 22 of 48

Consol. Court No. 19-00122 	Page 23
As noted, section 103(b) authorized the issuance of “[a]ny interim regulation
necessary or appropriate to carry out any action proposed in the [SAA] . . . to implement
an agreement described in section 3511(d)(7), (12), or (13) of [Title 19],” 19 U.S.C.
§ 3513(b), which includes the SCM Agreement, see id. § 3511(d)(12). The court
previously considered the language of section 103(b) in response to the argument that
this provision’s authorization of an interim regulation indicated that Commerce had
equal authority to issue the regulation as a final regulation pursuant to section 103(a).
See Lumber III, 483 F. Supp. 3d at 1267. The court rejected the premise of that
argument “because the SAA does not propose any action to implement CVD expedited
reviews” that would meet the requirements of section 103(b). Id.
Regardless of the degree of discretion accorded by Congress’s use of the term
“appropriate” to modify “interim regulation,” see Def.-Ints.’ Opp’n Cmts. at 14–15, 17 the
___, ___, 375 F. Supp. 3d 1348, 1352 (2019) (considering a motion for reconsideration
pursuant to USCIT Rule 54(b) instead of USCIT 59(e) when the motion pertained to an
opinion remanding the matter to Commerce that was nonfinal and, thus, not
appealable).
17 The Canadian Parties argue that the court should give “greater deference” to
Commerce’s interpretation of section 103(b) than it did for section 103(a) because
section 103(b) accords Commerce “substantial” discretion and applies solely to
Commerce and the U.S. International Trade Commission. Def.-Ints.’ Opp’n Cmts. at 14
& n.31 (citing Lumber III, 483 F. Supp. 3d at 1262 n.16). The Canadian Parties fail to
identify what level of deference the court should accord Commerce’s interpretation of
section 103(b) in the event the court finds the pertinent language ambiguous. While the
Canadian Parties cite to City of Arlington v. FCC, 569 U.S. 290, 297–97 (2013), Def.-
Ints.’ Opp’n Cmts. at 14 n.32, in that case, the U.S. Supreme Court held that Chevron
deference should be accorded to an agency’s “construction of a[n ambiguous]
jurisdictional provision of a statute it administers,” City of Arlington, 569 U.S. at 301
(citation omitted) (emphasis added). Commerce is not the administering authority for
section 103(b). See Lumber III, 483 F. Supp. 3d at 1262 n.16 (discussing relevant
provisions). In any event, the pertinent language in section 103(b) unambiguously
Case 1:19-cv-00164-MAB Document 35 Filed 08/18/21 Page 23 of 48

Consol. Court No. 19-00122 	Page 24
court is not persuaded by Commerce’s Remand Results or Parties’ briefing to
reconsider its finding that the “SAA does not propose any [relevant] action” for purposes
of the phrase “action proposed in the [SAA].” See Lumber III, 483 F. Supp. 3d at 1267;
Remand Results at 22; Def.-Ints’ Opp’n Cmts. at 14; Def.’s Reply Cmts. at 8. 18
The Canadian Parties argue that “the SAA anticipated that there would be an
expedited review procedure” and, thus, that the requirement for a proposed action is
met. Def.-Ints’ Opp’n Cmts. at 15. An attempt “to re-litigate . . . arguments . . .
previously raised” is not, however, a basis for reconsideration. Totes-Isotoner Corp. v.
United States, 32 CIT 1172, 1173, 580 F. Supp. 2d 1371, 1374 (2008) (citation omitted);
see also Lumber III, 483 F. Supp. 3d at 1267 (rejecting the argument that “the reference
to expedited reviews pursuant to Article 19.3 in the SAA constitutes a ‘proposed action’”
for purposes of section 103(b)).
The court also is not persuaded to reconsider its finding with respect to section
103(b) as a result of Congress’s statement of approval of the SCM Agreement in URAA
§101(a). See Def.-Ints.’ Opp’n Cmts. at 15–16. The Canadian Parties appear to
suggest that the court should interpret the language of section 103(b) more broadly
given Congress’s approval. See id. However, the statement of congressional approval
was a statutory requirement pursuant to the legislative mechanism utilized for
precludes the Canadian Parties’ interpretation; thus, the court need not resolve this
issue.
18 Parties also do not address what implications, if any, might arise from the fact that
Commerce did not promulgate 19 C.F.R. § 351.214(k) as an interim regulation or within
the time prescribed for interim regulations, but, instead, issued section 351.214(k) as
part of its final regulations well after the time period provided in section 103(b). See
supra pp. 9–10.
Case 1:19-cv-00164-MAB Document 35 Filed 08/18/21 Page 24 of 48

Consol. Court No. 19-00122 	Page 25
congressional implementation of the Uruguay Round Agreements. See 19 U.S.C.
§ 2191(b)(1)(A); 19 U.S.C. § 3511(a) (cross-referencing 19 U.S.C. § 2191). Further, the
statement of congressional approval was required in addition to any new or amended
statutory “provisions[] necessary or appropriate to implement [the Uruguay Round
Agreements].” 19 U.S.C. § 2191(b)(1)(C). The SAA discusses what statutory
“changes” Congress considered necessary “to implement the requirements of Article
19.3 of the [SCM] Agreement,” SAA at 941, reprinted in 1994 U.S.C.C.A.N. at 4250, and
a CVD expedited review process as conceived by Commerce was not among them, see
id. at 941–42, reprinted in 1994 U.S.C.C.A.N. at 4251. Thus, the Canadian Parties’
reliance on URAA § 101(a) to read into the SAA, and, thus, into URAA § 103(b),
authority for an action that is unsupported by the text of the SAA lacks merit.
The court’s finding that Congress intended the phrase “action proposed in the
[SAA]” in section 103(b) to encompass the statutory changes discussed in connection
with the implementing bill harmonizes section 103(b) with section 103(a), the scope of
which is limited to enacted provisions. See Lumber III, 483 F. Supp. 3d at 1271.
Finding authority in section 103(b) for a regulation that is plainly not authorized by
section 103(a) would instead introduce a conflict between the provisions, which should
be avoided. See, e.g., Maracich v. Spears, 570 U.S. 48, 68 (2013) (“The provisions of a
text should be interpreted in a way that renders them compatible, not contradictory. . . .
[T]here can be no justification for needlessly rendering provisions in conflict if they can
be interpreted harmoniously.”) (quoting Antonin Scalia & Bryan A. Garner, Reading
Case 1:19-cv-00164-MAB Document 35 Filed 08/18/21 Page 25 of 48

Consol. Court No. 19-00122 	Page 26
Law: The Interpretation of Legal Texts 180 (2012)) (alterations original). 19 Accordingly,
the court declines to reconsider its finding with respect to section 103(b).
In sum, the court will sustain Commerce’s determination that the potential
sources of authority considered on remand do not supply a legal basis for the adoption
of 19 C.F.R. § 351.214(k) or Commerce’s conduct of CVD expedited reviews.
II. 	Commerce’s Treatment of Entries Made by the Subject Companies
A. Parties’ Contentions
Plaintiff contends that the phrase “set aside” in 5 U.S.C. § 706 means “vacate”
and, thus, the court should vacate 19 C.F.R. § 351.214(k) and the Final Results of
Expedited Review. Pl.’s Opp’n Cmts. at 4 (citing V.I. Tel. Corp. v. FCC, 444 F.3d 666,
671 (D.C. Cir. 2006)). Plaintiff further contends that the court should restore the “cash
deposit collection and liquidation status of the companies . . . to a state reflective of
what would already be in place had Commerce not acted ultra vires.” Id. at 7. Plaintiff
also contends that section 1516a(c)(1) does not apply because a CVD expedited review
is not a determination enumerated under that subsection. See id. at 7–8.
Plaintiff requests the court to order Commerce or Customs, as appropriate, to: (1)
suspend the liquidation of unliquidated entries of subject merchandise produced or
exported by the companies subject to the CVD expedited review; (2) include subject
19 Having found no ambiguity in the scope of interim rulemaking authority conferred by
section 103(b), the Canadian Parties’ arguments that the Charming Betsy doctrine
favors their interpretation of ambiguous language within that provision are immaterial.
See Def.-Ints.’ Opp’n Cmts. at 16. In any event, as with section 103(a), section 103(b)
“does not . . . directly implement the United States’ international obligations” but,
instead, authorizes interim regulations implementing actions proposed in the SAA.
Lumber III, 483 F. Supp. 3d at 1267. “Thus, Charming Betsy is inapposite.” Id.
Case 1:19-cv-00164-MAB Document 35 Filed 08/18/21 Page 26 of 48

Consol. Court No. 19-00122 	Page 27
merchandise produced by the excluded companies in the CVD Order; (3) “[e]ffective as
of the date of the [c]ourt’s judgment, collect cash deposits on imports of subject
merchandise produced and/or exported by the expedited review companies at that rate
that would have been applicable to each of these companies had the [Final Results of
Expedited Review] not been issued,” which rate Plaintiff identifies as the rate
“determined by the most recently completed and requested segment of the CVD Order
for each of the expedited review companies”; and (4) “assess countervailing duties on
the subject merchandise produced and/or exported by the expedited review companies”
pursuant to “19 C.F.R. § 351.212 but without regard to the [Final Results of Expedited
Review].” Id. at 11. 20
The Canadian Parties contend that voiding the Final Results of Expedited
Review would result in the assessment of countervailing duties in excess of the net
countervailable subsidy conferred on the companies in violation of 19 U.S.C.
§§ 1671(a), 1671e(a)(1). See Def.-Ints’ Opp’n Cmts. at 19–22. The Canadian Parties
further contend that principles of equity require that the subject companies retain the
status and rates determined in the CVD expedited review even if the court vacates the
regulation. See id. at 23 & n.57 (citing 28 U.S.C. § 1585); 21 see also id. at 24 (stating
that equity requires this decision to have “no [e]ffect” on the subject companies, such
20 Relevant here, section 351.212 governs the assessment of countervailing duties
pursuant to an administrative review or new shipper review. See 19 C.F.R.
§ 351.212(b)(2).
21 Pursuant to 28 U.S.C. § 1585, “[t]he Court of International Trade shall possess all the
powers in law and equity of, or as conferred by statute upon, a district court of the
United States.”
Case 1:19-cv-00164-MAB Document 35 Filed 08/18/21 Page 27 of 48

Consol. Court No. 19-00122 	Page 28
that the excluded companies remain excluded from the CVD Order and the court should
resolve the remaining challenges of the non-excluded companies); id. at 31 (arguing
that rescission may leave the subject companies in a worse position than if they had not
requested a CVD expedited review because the all-others rate from the investigation
(14.9 percent) is higher than the all-others rate from the first administrative review (7.26
percent and 7.42 percent for 2017 and 2018, respectively).
The Canadian Parties also contend that Commerce’s conduct of the review
amounted to harmless error because Plaintiff is unharmed by the de minimis margins
received by the excluded companies or to which the non-excluded companies would be
entitled pending their challenges. See id. at 32. Lastly, the Canadian Parties contend
that, if the court vacates the Final Results of Expedited Review, the court “should order
Commerce to initiate new reviews under the appropriate authority (e.g., a changed
circumstances review) and adopt the substantive results from the expedited review,
after allowing the other appeal issues to be heard.” Id. at 32–33.
The Government contends that Commerce is not prohibited from implementing
the court’s judgment consistent with 19 U.S.C. § 1516a(c)(1) even if such action is not
required. Def.’s Reply Cmts. at 12. The Government further contends that because no
statutory provision addresses how Commerce should treat the subject entries, the court
should accord Chevron deference to Commerce’s decision to rely on section
1516a(c)(1). See id. at 12–13. Following this approach, the excluded companies “will
be brought back into the order prospectively at the 14.19 percent all-others rate
calculated in the investigation” and the non-excluded companies “will receive
Case 1:19-cv-00164-MAB Document 35 Filed 08/18/21 Page 28 of 48

Consol. Court No. 19-00122 	Page 29
prospectively either the all-others rate from the investigation, or the rate received in the
most recently completed administrative review in which the company participated.” Id.
at 13–14. 22 The Government also argues that formal revocation of 19 C.F.R.
§ 351.214(k) is unnecessary because the action is nonfinal pending all appeals and, “if
the Remand Results are sustained after all appeals, Commerce would cease
conducting expedited reviews.” Id. at 16.
The Government further relies on the court’s decision in Lumber I not to enter a
preliminary injunction to infer that the court contemplated solely prospective relief. See
id. at 14. According to the Government, retroactive application of the all-others rate
determined in the investigation “would raise concerns about the procedure afforded”
because the “excluded companies had no reason to request administrative reviews of
their entries” and the non-excluded companies that “were satisfied with” the rates
obtained in the Final Results of Expedited Review “also had no reason to request
administrative reviews.” Id. at 14–15. The Government also contends that the
Canadian Parties’ reliance on 19 U.S.C. §§ 1671(a) and 1671e(a)(1) is misplaced
because those provisions govern investigations and, thus, Commerce would not violate
22 The non-excluded companies were included in the second administrative review of
the CVD Order. See Def.-Ints.’ Reply Cmts. at 3 n.8. All subject companies (excluded
and non-excluded) were included in the third administrative review of the CVD Order.
See id.; Def.-Ints.’ Opp’n Cmts. at 30 n.77.
Case 1:19-cv-00164-MAB Document 35 Filed 08/18/21 Page 29 of 48

Consol. Court No. 19-00122 	Page 30
those provisions by rescinding the results of the review and imposing countervailing
duties. See id. at 10. 23
In their reply comments, the Coalition contends that Commerce’s statutory
authority to assign an all-others rate to companies that are not individually investigated
undermines the Canadian Parties’ argument that Commerce may not impose
countervailing duties in excess of those determined in the Final Results of Expedited
Review. See Pl.’s Reply Cmts. at 9–10. The Coalition also contends that the Canadian
Parties’ reliance interests are irrelevant in light of the rule of retroactivity applicable to
judicial decisions. See id. at 10–14 (citing, inter alia, Reynoldsville Casket Co. v. Hyde,
514 U.S. 749 (1995), and Harper v. VA Dep’t of Taxation, 509 U.S. 86, 97 (1993)). As
to the asserted reliance interests, the Coalition also contends that it “raised the issue of
statutory authority multiple times during the Commerce proceeding, including before
Commerce initiated the review,” and, thus, the subject companies were on notice of the
issue and “participated . . . at their own risks.” Id. at 13 n.4 (citing Obj. to the Dep’t’s
Conduct of Expedited Reviews (Jan. 23, 2018), PR 12, PRJA Tab 1).
The Coalition further contends that Commerce’s promulgation of the regulation
and completion of the CVD expedited review are not amenable to a harmless error
analysis because they are not procedural defects but, rather, “substantive unlawful
23 The Government asserts that Plaintiff waived its request for “reliquidation of already
liquidated entries” because it never requested that relief in its complaint. Def.’s Reply
Cmts. at 15. The Government does not cite to the location of any such request, and the
court does not understand Plaintiff to seek reliquidation. While Plaintiff argues that
nullification of the Final Results of Expedited Review should reach previously entered
but unliquidated entries of subject merchandise, Pl.’s Opp’n Cmts. at 9, 11, Plaintiff has
not requested (or presented arguments supporting) reliquidation of liquidated entries.
Case 1:19-cv-00164-MAB Document 35 Filed 08/18/21 Page 30 of 48

Consol. Court No. 19-00122 	Page 31
agency action.” Id. at 15. Lastly, the Coalition contends that the court may not order
Commerce to complete a new review adopting the results of the CVD expedited review
given that Commerce lacked authority to conduct the review. See id.
The Canadian Parties filed reply comments in which they support Commerce’s
reliance on 19 U.S.C. § 1516a(c)(1) and Commerce’s position that any relief should be
prospective. See Def.-Ints.’ Reply Cmts. at 4–5. The Canadian Parties contend that
prospective application of the court’s judgment is supported by the “presumption of
correctness” that applies to Commerce findings and the expectations of the parties that
make business decisions in reliance on those findings. Id. at 5–6. The Canadian
Parties also contend that, to the extent there is a statutory requirement for retroactivity,
the court can use its “equitable powers to provide otherwise.” Id. at 8–9 (citations
omitted); see also id. at 11–12. Lastly, the Canadian Parties request the court to “stay
the enforcement of its decision” pending all appeals if it does not allow the subject
companies to retain the benefit of the Final Results of Expedited Review. Id. at 13.
B. Analysis
There are three issues before the court: (1) whether the court should vacate 19
C.F.R. § 351.214(k); (2) whether the court should vacate the Final Results of Expedited
Review; and (3) in the event the court vacates the Final Results of Expedited Review,
whether the vacatur should operate prospectively or retroactively. The court addresses
each issue, in turn.
Case 1:19-cv-00164-MAB Document 35 Filed 08/18/21 Page 31 of 48

Consol. Court No. 19-00122 	Page 32
1. 	Commerce’s Regulation, 19 C.F.R. § 351.214(k), Will Be Vacated
With respect to the regulation, the issue is relatively straightforward. The court is
guided by the standard of review set forth in the APA, which states that the court “shall .
. . hold unlawful and set aside agency action, findings, and conclusions found to be . . .
in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.” 5
U.S.C. § 706(2)(C). 24 “‘Set aside’ usually means ‘vacate.’” V.I. Tel. Corp., 444 F.3d at
671–72 (citing Black’s Law Dictionary 1404 (8th ed. 2004)). 25 Thus, “‘[w]hen a
reviewing court determines that agency regulations are unlawful, the ordinary result is
that the rules are vacated—not [just] that their application to the individual petitioners is
proscribed.’” Nat’l Min. Ass’n v. U.S. Army Corps of Engineers, 145 F.3d 1399, 1409
(D.C. Cir. 1998) (quoting Harmon v. Thornburgh, 878 F.2d 484, 495 n. 21 (D.C. Cir.
1989)); 26 see also Allina Health Servs. v. Sebelius, 746 F.3d 1102, 1110 & n.5 (D.C. Cir.
24 “‘[A]gency action’ includes the whole or a part of an agency rule, order, license,
sanction, relief, or the equivalent or denial thereof, or failure to act.” 5 U.S.C. § 551(13).
25 The U.S. Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”)
interpreted the phrase “set aside” as it appeared in the FCC’s regulations pursuant to
which the FCC vacated an order and “restored the status quo ante,” but noted that “[t]he
result would be the same as if a court” had set aside the order “pursuant to . . . 5 U.S.C.
§ 706(2).” V.I. Tel. Corp., 444 F.3d at 671–72.
26 The opinions of the D.C. Circuit are not binding on this court. However, to the extent
the Federal Circuit has not addressed any aspect of the issue of remedy pending before
the court, the court finds judicial precedent from the D.C. Circuit instructive in light of the
court’s expertise in the area of administrative law. See, e.g., Vt. Yankee Nuclear Power
Corp. v. NRDC, 435 U.S. 519, 535 n.14 (1978) (observing that “the vast majority of
challenges to administrative agency action are brought to the [D.C. Circuit]”); see
generally Richard J. Pierce, Jr., The Special Contributions of the D.C. Circuit to
Administrative Law, 90 G EO. L.J. 779 (2002). The Federal Circuit has done likewise.
See Nat’l Org. of Veterans’ Advocates, Inc. v. Sec’y of Veterans Affs., 260 F.3d 1365,
1367–68, 1379–81 (Fed. Cir. 2001) (following Allied-Signal, Inc. v. U.S. Nuclear Regul.
Comm’n, 988 F.2d 146, 151 (D.C. Cir. 1993)).
Case 1:19-cv-00164-MAB Document 35 Filed 08/18/21 Page 32 of 48

Consol. Court No. 19-00122 	Page 33
2014) (characterizing vacatur as the “normal remedy” when an agency action is
unlawful and finding it “clearly appropriate . . . under the APA”); Chlorine Chemistry
Council v. EPA, 206 F.3d 1286, 1291 (D.C. Cir. 2000) (vacating a rule the court found to
be arbitrary and capricious and in excess of statutory authority under the APA);
Kiakombua v. Wolf, 498 F. Supp. 3d 1, 51–52 (D.D.C. 2020) (rejecting the argument
that vacatur was “not appropriate in [that] case as a matter of the equities” and stating
that “vacatur is the norm whe[n], as here, the deficiencies that the court has identified
are substantively fatal”) (citation omitted). Indeed, the Federal Circuit has vacated an
agency action in part—a precedential general counsel opinion issued by the U.S.
Department of Veterans Affairs (“VA”)—when an opinion expressed therein incorrectly
interpreted a statute and therefore exceeded the VA’s authority pursuant to 5 U.S.C.
§ 706(2)(A) and (C). See Splane v. West, 216 F.3d 1058, 1062, 1070 (Fed. Cir.
2000). 27
Accordingly, the court concludes that vacatur of the regulation is appropriate. 28
27 In Dorbest Ltd. v. United States, the Federal Circuit “invalidate[d]” 19 C.F.R.
§ 351.408(c)(3) based on the appellate court’s finding that it was inconsistent with 19
U.S.C. § 1677b(c)(4)(A), the statute pursuant to which Commerce promulgated the
regulation. 604 F.3d 1363, 1372 (Fed. Cir. 2010). Section 351.408(c)(3) remains in the
Code of Federal Regulations. See 19 C.F.R. § 351.408(c)(3) (2020). The facial attack
on section 351.408(c)(3) at issue in Dorbest arose under 19 U.S.C. § 1516a as part of a
challenge to a Commerce antidumping duty investigation determination. See 604 F.3d
at 1366. The Federal Circuit thus had no occasion to address the requirements of the
APA and did not explain its choice of terminology or the difference—if any—between
vacating a regulation and invalidating it.
28 The Government asserts that Plaintiff has waived any request for the court to order
formal revocation of the regulation because Plaintiff failed to request such relief in its
complaint. Def.’s Reply Cmts. at 15; see also Pl.’s Opp’n Cmts. at 8–9, 10–11
(requesting the court to order Commerce to withdraw the regulation). Because “notice
Case 1:19-cv-00164-MAB Document 35 Filed 08/18/21 Page 33 of 48

Consol. Court No. 19-00122 	Page 34
2. 	The Final Results of Expedited Review Will Be Vacated
Turning to the second issue, while vacatur of the regulation “restore[s] the prior
regulatory status quo,” D.A.M. v. Barr, 486 F. Supp. 3d 404, 415–16 (D.D.C. 2020)
(citing Env’t Def. v. Leavitt, 329 F. Supp. 2d 55, 64 (D.D.C. 2004); Nat’l Parks Cons.
Ass’n v. Jewell, 62 F. Supp. 3d 7, 21 (D.D.C. 2014)), vacatur does not necessarily
“erase[] from legal existence all past adjudications under the vacated rule,” id. at 415
(citing Heartland By-Prods., Inc. v. United States, 568 F.3d 1360, 1366–67 (Fed. Cir.
2009)). 29 It is, however, “uncontroversial . . . that, when a court with jurisdiction finds
that the plaintiffs before it were harmed by an agency decision issued under an illegal
rule, the court should vacate that wrongful decision as a remedy.” Id. at 416 (citing
W.C. v. Bowen, 807 F.2d 1502 (9th Cir. 1987), a case in which the U.S. Court of
Appeals for the Ninth Circuit vacated adverse decisions issued to a class of Social
Security claimants pursuant to an invalid review program). 30
and comment procedure is not required whe[n] a court vacates a rule after making a
finding on the merits,” 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)),
the court declines to order Commerce to formally repeal 19 C.F.R. § 351.214(k).
29 In Heartland, a case brought pursuant to the court’s jurisdiction under 1581(h) for pre-
importation review of customs rulings in certain limited circumstances, the Federal
Circuit held that a prior related decision “was retroactive with respect to entries made
before the date the mandate issued in [that case],” but that did “not mean that final
judicial or administrative decisions are to be reopened,” for example, liquidations that
have since become final. 568 F.3d at 1366–67.
30 D.A.M. addressed the propriety of a temporary restraining order barring removal of
asylum seekers from the United States pursuant to an order of expedited removal
issued under an invalid agency rule. See 486 F. Supp. 3d at 407. The D.A.M. court
explained that vacatur of the rule meant that the government could not “issue any more
orders of removal under that rule, but it [did] not mean that petitioners’ removal orders
(along with thousands of others) were automatically extinguished by operation of [that]
Case 1:19-cv-00164-MAB Document 35 Filed 08/18/21 Page 34 of 48

Consol. Court No. 19-00122 	Page 35
Accordingly, courts have invalidated specified agency actions taken pursuant to
an invalid rule. See, e.g., Kiakombua, 498 F. Supp. 3d at 57–59 (requiring new credible
fear determinations for plaintiffs negatively affected by prior determinations conducted in
accordance with an invalid agency manual); L.M.-M. v. Cuccinelli, 442 F. Supp. 3d 1,
35–37 (D.D.C. 2020) (setting aside removal orders for the five plaintiffs before the court
while declining to set aside orders for non-parties); Waterkeeper All., Inc. v. Wheeler,
No. CV 18-2230 (JDB), 2020 WL 1873564, at *6–*7 (D.D.C. Apr. 15, 2020) (vacating
agency approval of a state regulatory program following the D.C. Circuit’s vacatur of an
agency policy necessary to the program’s approval); W. Watersheds Project v. Zinke,
441 F. Supp. 3d 1042, 1085–89 (D. Idaho 2020) (vacating provisions of a land
management policy and setting aside certain affected lease sales).
While examples in the trade context are few, those that exist are consistent with
the foregoing cases. In Dorbest, for example, the Federal Circuit required Commerce to
recalculate normal value without regard to the labor valuation regulation the court held
to be invalid. See 604 F.3d at 1272–73. In FAG Italia S.p.A. v. United States, the CIT
remanded an administrative review determination to Commerce “to annul all findings
and conclusions made pursuant to [a] duty absorption inquiry” the agency lacked
statutory authority to perform. 24 CIT 587, 596 (2000), aff’d in part, 291 F.3d 806 (Fed.
Cir. 2002).
judgment.” Id. at 416. The court ultimately declined to invalidate the removal orders
based on the conclusion that the court lacked subject matter jurisdiction to do so. See
id. at 416–19.
Case 1:19-cv-00164-MAB Document 35 Filed 08/18/21 Page 35 of 48

Consol. Court No. 19-00122 	Page 36
Accordingly, the court will vacate the Final Results of Expedited Review. The
court must, however, address the implications of vacatur of the underlying
determination.
3. 	Rescission Shall Operate Prospectively
In looking for judicial guidance with respect to how the court should direct
implementation of its decision to vacate the Final Results of Expedited Review, the
court has found National Fuel Gas Supply Corp. v. FERC, 59 F.3d 1281 (D.C. Cir.
1995), to be useful. Therein, the D.C. Circuit confronted the question whether the
Federal Energy Regulatory Commission (“FERC”) erred in retroactively applying a prior
appellate court decision that vacated an earlier FERC order. Id. at 1282–83. Upon
review of judicial precedent concerning retroactive application of federal court decisions,
the D.C. Circuit held that FERC’s decision to apply retroactively the appellate court’s
vacatur of its order was lawful and that none of the recognized exceptions to
retroactivity were met. See id. at 1286–90.
In so holding, the D.C. Circuit rejected the argument that an earlier three-part
test 31 providing for prospective application of a federal court decision “survived as a
remedial doctrine under which [the court] could grant relief to a party that had acted in
31 The three-part test was announced in Chevron Oil Co. v. Huson, 404 U.S. 97, 106–08
(1971), and considered: “(1) whether the decision announced ‘a new principle of law’;
(2) whether non-retroactive application would undermine the purpose of that decision;
and (3) whether retroactive application would work a significant inequity.” Nat’l Fuel, 59
F.3d at 1284 (citation omitted); see also Chevron Oil, 404 U.S. at 106–07.
Case 1:19-cv-00164-MAB Document 35 Filed 08/18/21 Page 36 of 48

Consol. Court No. 19-00122 	Page 37
reliance upon the law as it stood prior to [its] decision supposedly announcing a new
rule of law.” Id. at 1287–88. The appellate court explained:
In Hyde, the Supreme Court clearly held that retroactive application of a
judicial decision cannot, except in certain limited and specifically defined
circumstances, be blunted at the remedial stage. The plaintiff in Hyde
acknowledged that her case was governed by Harper and that a prior
decision of the Supreme Court had “retroactively invalidated the tolling
provision that [made] her suit timely.” She nevertheless asked the Court
to allow her suit to go forward, “not[ing] the possibility of recharacterizing
Chevron Oil as a case in which the Court simply took reliance interests
into account in tailoring an appropriate remedy for a violation of federal
law.” The Court per Justice Breyer, squarely rejected that argument . . . .
Id. at 1288 (quoting Hyde, 514 U.S. at 749, 752) (first and second alterations in original)
(emphasis added) (citations omitted). 32 The appellate court concluded that Hyde
generally prevents a court from departing, “even at the remedial stage, from the rule of
Harper requiring that a judicial decision be applied retroactively.” Id. Thus, when
“Harper is applicable,” prospective “application of a prior decision can be awarded only
in four specific circumstances,” id., such as when
[a] court may find (1) an alternative way of curing the constitutional
violation, (2) a previously existing, independent legal basis (having nothing
to do with retroactivity) for denying relief, or (3) as in the law of qualified
immunity, a well-established legal rule that trumps the new rule of law,
which general rule reflects both reliance interests and other significant
policy justifications, or (4) a principle of law . . . that limits the principle of
retroactivity itself.
32 Harper holds that the “Court’s application of a rule of federal law to the parties before
the Court requires every court to give retroactive effect to that decision.” 509 U.S. at 90;
see also id. at 97 (“When this Court applies a rule of federal law to the parties before it,
that rule is the controlling interpretation of federal law and must be given full retroactive
effect in all cases still open on direct review and as to all events, regardless of whether
such events predate or postdate our announcement of the rule.”). In Hyde, the Court
recognized that “Harper overruled Chevron Oil insofar as the case (selectively)
permitted the prospective-only application of a new rule of law.” 514 U.S. at 752.
Case 1:19-cv-00164-MAB Document 35 Filed 08/18/21 Page 37 of 48

Consol. Court No. 19-00122 	Page 38
Id. (quoting Hyde, 514 U.S. at 759) (second alteration in original).
The D.C. Circuit then turned to the question whether Harper and Hyde apply in
the context of agency action. See id. The court explained that although the rule of
retroactivity has constitutional dimensions, it is also based on the principle “that the
‘selective application of new rules violates the principle of treating similarly situated
parties the same.’” Id. at 1289 (quoting Harper, 509 U.S. at 95). Thus, the appellate
court could “see no reason why that pre-constitutional rationale would apply with any
less force when it falls to an agency rather than a court to apply a judicial decision.” Id.
(citation omitted). The appellate court distinguished “between an administrative
agency’s retroactive application of a judicial decision,” at issue in National Fuel, “and
[an] agency’s retroactive application of its own adjudicative decision,” as to which an
agency may have greater flexibility. Id. With respect to the former circumstance, the
D.C. Circuit concluded that, absent compelling reasons, “the decision of a federal court
must be given retroactive effect regardless whether it is being applied by a court or an
agency.” Id.33
33 The court elaborated that,
[b]ecause the decision of an Article III court . . . announces the law “as
though [it] were finding it[,] discerning what the law is, rather than
decreeing what it is . . . changed to, or what it will tomorrow be,” all parties
charged with applying that decision, whether agency or court, state or
federal, must treat it as if it had always been the law. The agency must
give retroactive effect to the ruling of a federal court because of the nature
of that court.
Nat’l Fuel, 59 F.3d at 1289 (quoting James B. Beam Distilling Co. v. Ga., 501 U.S. 529,
549 (1991) (Scalia, J., concurring in the judgment)).
Case 1:19-cv-00164-MAB Document 35 Filed 08/18/21 Page 38 of 48

Consol. Court No. 19-00122 	Page 39
Accordingly, the court considers, consistent with Hyde, Harper, and National
Fuel, whether there are compelling reasons to depart from the presumption that
Commerce must apply retroactively this court’s decision to vacate the Final Results of
Expedited Review by restoring the cash deposit and liquidation status of the subject
companies and, in particular, their prior entries, to the position they would have been in
had the proceeding never occurred. To that end, Congress has enacted a detailed
statutory scheme governing AD/CVD proceedings which provides for both retrospective
and prospective effect with respect to both Commerce and court decisions under
specified circumstances. While this case is atypical given the lack of statutory authority
for CVD expedited reviews, the court nevertheless finds that application of that
congressionally approved scheme particular to trade cases, providing for prospective
relief, is merited.
When Commerce finds that “countervailable subsidization is occurring,” 19
C.F.R. § 351.210(a) (defining “final determination[s]”), Commerce must determine an
estimated individual countervailable subsidy rate 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). 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 countrywide
subsidy rate.” Id. § 1671d(c)(1)(B)(ii). “[T]he cash deposit rates established in an
investigation are prospective because they affect future entries, ‘not just those made
Case 1:19-cv-00164-MAB Document 35 Filed 08/18/21 Page 39 of 48

Consol. Court No. 19-00122 	Page 40
within a specific time period.’” Lumber I, 393 F. Supp. 3d at 1278 (quoting NSK Corp. v.
United States, 31 CIT 1962, 1965 (2007)).
Contrary to the prospective nature of cash deposits and “[u]nlike the systems of
some other countries, the United States uses a ‘retrospective’ assessment system
under which final liability for antidumping and countervailing duties is determined after
merchandise is imported.” 19 C.F.R. § 351.212(a). This retrospective approach
requires that “the amount of duties to be assessed is determined in a review of the order
covering a discrete period of time.” Id. When an administrative “review is not
requested, duties are assessed at the rate established in the completed review covering
the most recent prior period or, if no review has been completed, the cash deposit rate
applicable at the time merchandise was entered.” Id.
While assessment is therefore retrospective because it covers past entries, a
decision of the CIT or the Federal Circuit “not in harmony with” Commerce’s
determination in a CVD investigation or administrative review is prospective unless the
court grants an interested party’s request for injunctive relief. 19 U.S.C. § 1516a(c)(1)
(cross-referencing subsection (c)(2)). 34 In this case, the court denied Plaintiff’s request
34 Specifically, section 1516a(c)(1) provides for the liquidation of entries subject to
certain Commerce determinations in accordance with the agency determination “if they
are entered, or withdrawn from warehouse, for consumption on or before the date” on
which Commerce publishes a Timken Notice in the Federal Register, unless “such
liquidation is enjoined by the court” pursuant to subsection (c)(2). 19 U.S.C.
§ 1516a(c)(1); see also supra note 5 (defining “Timken Notice”). Prospective
application of adverse court decisions is rooted in the presumption of correctness that
attaches to agency determinations. See H.R. Rep. No. 96-317, 96th Cong., 1st Sess.
182 (1979). While the presumption of correctness was “modified” when Congress
authorized the CIT to enter statutory injunctions, section 1516a(c)(1) continues to reflect
that presumption. Id.
Case 1:19-cv-00164-MAB Document 35 Filed 08/18/21 Page 40 of 48

Consol. Court No. 19-00122 	Page 41
for preliminary injunctive relief. See Lumber I, 393 F. Supp. 3d at 1280. 35 Although the
liquidation provisions set forth in 19 U.S.C. § 1516a(c)(1) are not directly applicable to
CVD expedited reviews because they are not proceedings enumerated under section
1516a(a) (and otherwise lack statutory authority), the statute nevertheless reflects
unambiguous congressional intent concerning the circumstances under which
prospective relief is appropriate in trade cases. 36
The court finds that the principle of prospective application of a court decision not
in harmony with Commerce AD/CVD determinations absent an injunction constitutes a
sufficient limit on the retroactive application of the court’s decision herein. See Hyde,
514 U.S. at 759 (providing for the identification of legal principles operating to “limit[] the
principle of retroactivity itself”); id. at 761 (Kennedy, J., concurring) (stating that the
majority opinion did not foreclose solely prospective effect in “exceptional cases”).
Indeed, when the court denied Plaintiff’s motion for a preliminary injunction, the court
35 The court considered Plaintiff’s motion for a preliminary injunction pursuant to the
traditional four factors set forth in Winter v. Natural Resources Defense Council, Inc.,
555 U.S. 7, 24 (2008). See Lumber I, 393 F. Supp. 3d at 1276. Consistent with the
court’s exercise of jurisdiction pursuant to 28 U.S.C. § 1581(i), Plaintiff did not, strictly
speaking, request statutory injunctive relief.
36 This case is governed by the APA as a result of the failure to ground CVD expedited
reviews in the provisions of the URAA; however, the case otherwise reflects the
characteristics of a trade case. See, e.g., Order (Nov. 4, 2019), ECF No. 92 (requiring,
with Parties’ consent, the “filing and confidentiality protections afforded to all documents
forming the administrative record underlying the challenged administrative
determination” to “follow the procedures set forth in Rule 73.2” and the disposition of
this case to “follow the procedures set forth in Rule 56.2”). Rules 56.2 and 73.2
generally apply to actions described in 28 U.S.C. § 1581(c), which includes actions
arising pursuant to 19 U.S.C. § 1516a. See CIT Rule 56.2 (“Judgment on an Agency
Record for an Action Described in 28 U.S.C. § 1581(c)”); CIT Rule 73.2 (“Documents in
an Action Described in 28 U.S.C. § 1581(c), Except an Action Described in Section
517(g) of the Tariff Act of 1930, or (f)”).
Case 1:19-cv-00164-MAB Document 35 Filed 08/18/21 Page 41 of 48

Consol. Court No. 19-00122 	Page 42
permitted the liquidation of subject entries in accordance with the Final Results of
Expedited Review. The court anticipated that, if Plaintiff prevailed on count one of its
complaint, the excluded companies “would be reinstated in the CVD Order with the
concomitant collection of cash deposits and suspension of liquidation,” Lumber I, 393 F.
Supp. 3d at 1278, 37 and future entries “would be subject to the all-others rate
established in the CVD Order pending a subsequent review,” id. at 1279. The potential
for retroactive collection of cash deposits and assessment of duties on past entries by
the companies excluded by the Final Results of Expedited Review is solely a function of
the fact that entries remain unliquidated by virtue of the suspension of liquidation in
place in connection with the corresponding administrative review of the antidumping
duty order on certain softwood lumber from Canada. 38 As discussed below, it is simply
37 This expectation is consistent with the statutory scheme. When Commerce issues a
final affirmative determination following a CVD investigation but nevertheless excludes a
company from the resulting CVD order, and the company is subsequently reinstated in
the order following judicial review, Commerce does not collect cash deposits
retroactively. Rather, pursuant to 19 U.S.C. § 1516a(c)(1), an erroneously excluded
company’s entries made before Commerce’s publication of a Timken Notice would
liquidate exclusive of countervailing duties. Following publication of the Timken Notice,
the excluded companies would be reinstated in the relevant CVD order with the
associated suspension of liquidation and collection of cash deposits on future entries in
accordance with the CVD rate established in the investigation determination (subject to
revision on judicial review). While CVD expedited reviews are not investigation
determinations issued pursuant to Commerce’s authority under 19 U.S.C. § 1671d, “the
results of an expedited review are akin to a final investigation determination,” Lumber I,
393 F. Supp. 3d at 1278, because they “provide a noninvestigated exporter with its own
cash deposit rate prior to the arrival of the first anniversary month of the order, at which
point the exporter may request an administrative review,” id. (quoting Preamble, 62 Fed.
Reg. at 27,321).
38 In November 2017, Commerce issued a final affirmative determination in its
antidumping duty investigation of certain softwood lumber products from Canada. See
Certain Softwood Lumber Products From Canada, 82 Fed. Reg. 51,806 (Dep’t
Case 1:19-cv-00164-MAB Document 35 Filed 08/18/21 Page 42 of 48

Consol. Court No. 19-00122 	Page 43
not possible to fully “unscramble the egg” for the unliquidated entries. Cf. Sugar Cane
Growers Co-op. of Fla. v. Veneman, 289 F.3d 89, 97 (D.C. Cir. 2002) (declining to
vacate unlawful agency action when the court had denied preliminary relief, leading to
the establishment of a defective agency program pursuant to which land was plowed
under; observing that “[t]he egg has been scrambled and there is no apparent way to
restore the status quo ante”). 39
Plaintiff argues that the court must endeavor to place the subject companies—
the “part[ies] subject to the agency action”—“in the position [they] would have been in,
but for the wrongful agency action.” Pl.’s Opp’n Cmts. at 6. 40 That is, however,
impossible. Through the passage of time, opportunities to request administrative
reviews have come and gone with concomitant consequences. The excluded
Commerce Nov. 8, 2017) (final aff. determination of sales at less than fair value and aff.
final determination of critical circumstances); see also Certain Softwood Lumber
Products From Canada, 83 Fed. Reg. 350 (Dep’t Commerce Jan. 3, 2018) (antidumping
duty order and partial am. final determination).
39 Sugar Cane Growers addressed the separate though related question of remand
versus vacatur and declined to vacate the unlawful agency action when it was not
possible to restore the status quo ante and it was possible for the relevant agency to
cure the defect. See 289 F.3d at 97–98. While in this case the court finds it appropriate
to vacate the Final Results of Expedited Review because the deficiency in Commerce’s
regulation—a lack of statutory authority—cannot be cured on remand, the cases are
analogous to the extent that subsequent events tied to the unlawful action have made
full restoration impossible.
40 Plaintiff cites to Marshall v. HHS, 587 F.3d 1310, 1317 (Fed. Cir. 2009), and Kerr v.
National Endowment for the Arts, 726 F.2d 730, 733 (Fed. Cir. 1984), but those
opinions address employment reinstatement and backpay following successful litigation
of wrongful termination claims and are inapposite to whether retroactivity is required
here. See Pl.’s Opp’n Cmts. at 60.
Case 1:19-cv-00164-MAB Document 35 Filed 08/18/21 Page 43 of 48

Consol. Court No. 19-00122 	Page 44
companies were unable to participate in the first or second administrative reviews, 41 and
the non-excluded companies elected not to participate in the first administrative review
based on the favorable rate obtained in the underlying proceeding. 42 See Def.-Int.’s
Opp’n Cmts. at 29–30. Thus, applying a cash deposit rate based on either the all-
others rate from the investigation or the final results of administrative review for the
most recent review in which the company was reviewed constitutes the most
appropriate means of effectuating the court’s decision.
Additionally, while the court disagrees with the Government that Chevron
provides the appropriate legal framework for resolving this issue, see Def.’s Reply
Cmts. at 12, 43 there is some significance to the Government’s position concerning
41 Commerce rescinded the first administrative review for the excluded companies. See
Certain Softwood Lumber Products From Canada, 85 Fed. Reg. 7,273, 7,274 (Dep’t
Commerce Feb. 7, 2020) (prelim. results and partial rescission of the [CVD] admin.
Review; 2017-2018). For the second administrative review, Commerce declined to
review entries of subject merchandise produced and exported by the excluded
companies based on their exclusion from the CVD Order. Initiation of [AD] and [CVD]
Admin. Reviews, 85 Fed. Reg. 13,860, 13,875 nn.7–11 (Dep’t Commerce Mar. 10,
2020) (“Initiation AR2”). Commerce included all subject companies in the third
administrative review, notwithstanding the fact that the excluded companies were not
covered by the CVD Order at the time of initiation. See Initiation of [AD] and [CVD]
Admin. Reviews, 86 Fed. Reg. 12,599 (Dep’t Commerce Mar. 4, 2021). However, the
court recognizes that the third administrative review was initiated after Commerce
issued the Remand Results.
42 The Coalition also withdrew its request for the non-excluded companies to be
included in the first administrative review. See Lumber I, 393 F. Supp. 3d at 1278–79.
The non-excluded companies were included in the second administrative review of the
CVD Order, Initiation AR2, 85 Fed. Reg. at 13,862–64, as well the third administrative
review, as noted above.
43 This is not a situation in which the statute is silent or ambiguous with respect to
Commerce’s treatment of entries covered by a CVD expedited review and Commerce
gets to fill that “gap” subject to a Chevron prong two analysis. Rather, the court must
address Commerce’s treatment of entries subject to a determination subsequently
Case 1:19-cv-00164-MAB Document 35 Filed 08/18/21 Page 44 of 48

Consol. Court No. 19-00122 	Page 45
prospective relief given that the Government—not Plaintiff—is the recipient of any duties
ultimately assessed on the subject entries. Cf. Lumber I, 39 F. Supp. 3d at 1278–79
(finding no irreparable harm to Plaintiff from the liquidation of subject entries based, in
part, on the absence of any “direct financial stake in the rate at which entries would be
liquidated” and noting that Plaintiff “is not the recipient of the duties”). The interplay
between the tripartite interests of domestic producers, foreign exporters/producers, and
the U.S. government is a characteristic of trade cases and sets trade cases apart from
other cases addressing the principle of retroactivity in which the proponent of
retroactivity has a direct stake in its application. See, e.g., Harper, 509 U.S. at 91–92
(noting that petitioners sought tax refunds based on the retroactive application of a prior
U.S. Supreme Court opinion that struck down a tax provision discriminating between
retirement benefits paid by the federal government as compared to the state
government and its subdivisions); Hyde, 514 U.S. at 751 (noting that the petitioner had
avoided a lawsuit based on retroactive application of a prior Court decision that
rendered the respondent’s action untimely). This distinction, while not dispositive,
further supports prospective relief.
In sum, the court finds that prospective application of the vacatur of the Final
Results of Expedited Review is merited. Accordingly, upon entry of judgment,
Commerce must issue a Timken-like Notice rescinding the Final Results of Expedited
Review, consistent with the requirements set forth in 19 U.S.C. § 1516a(c)(1), reinstate
vacated as without statutory authority. Chevron deference is not implicated in the
court’s resolution of this issue.
Case 1:19-cv-00164-MAB Document 35 Filed 08/18/21 Page 45 of 48

Consol. Court No. 19-00122 	Page 46
the excluded companies in 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.
The court declines to reach the remaining challenges asserted by the Canadian
Parties. See Def.-Ints.’ Opp’n Cmts. at 6. Those issues pertain to the cash deposit
rates established by the Final Results of Expedited Review. The results of that
expedited review are being vacated and will have no further force or effect. 44 The cash
deposit rates applicable to these companies will be based on the rates determined in
the most recently completed administrative review or the investigation. 45 The court
recognizes that this may result in a disparate effect on the excluded and non-excluded
companies because the excluded companies remain free from countervailing duties
until Commerce’s publication of the Timken Notice; 46 however, the non-excluded
44 Likewise, the court declines to reach the Coalition’s challenges to the substantive
aspects of the Final Results of Expedited Review, except to the extent indicated below.
See Pl.’s Mem. at 33–47; infra note 46.
45 To the extent the Canadian Parties assert that the non-excluded companies “would
be entitled to” a de minimis margin if the court resolved their substantive challenges to
Commerce’s determination and, thus, exclusion from the CVD Order, Def.-Ints.’ Opp’n
Cmts. at 32, that argument is unpersuasive because the court is vacating the review
and ordering the excluded companies to be reinstated in the CVD Order.
46 In its Rule 56.2 Motion, Plaintiff also argued that Commerce violated 19 C.F.R.
§ 351.214(k)(3)(iii) when it ordered CBP to refund cash deposits paid by the excluded
companies because the regulation provides that a determination issued pursuant to
subsection (k) “will not be the basis for the assessment of countervailing duties.” Pl.’s
Mem. at 32. Subsection (k)(3)(iv) permitted Commerce to exclude from an order a
company that obtained a zero or de minimis rate. See 19 C.F.R. § 351.214(k)(3)(iv).
Case 1:19-cv-00164-MAB Document 35 Filed 08/18/21 Page 46 of 48

Consol. Court No. 19-00122 	Page 47
companies cannot claim entitlement to the benefit of a correctly calculated CVD rate
based on a review proceeding that is not grounded in the law.
The court has reviewed the Canadian Parties’ remaining arguments and finds
that they do not require a different outcome. 47 Further, the court declines to order
Commerce to conduct a changed circumstances review and adopt the rates calculated
in the Final Results of Expedited Review. See Def.-Ints.’ Opp’n Cmts. at 32–33. It is for
the agency to decide, in the first instance, whether a changed circumstances review is
Regulations, like statutes, must be read “as a whole.” Am. Fiber & Finishing, Inc. v.
United States, 39 CIT ___, ___, 121 F. Supp. 3d 1273, 1282–83 & n.33 (2015) (citations
omitted). Thus, taking account of the court’s denial of Plaintiff’s motion for preliminary
injunction, the nature of the prospective relief being provided, and notwithstanding the
vacatur of the regulation, Plaintiff’s argument lacks merit.
47 The Canadian Parties’ reliance on Dep’t of Homeland Security v. Regents of the
University of California, 140 S. Ct. 1891 (2020), to support the court’s consideration of
the subject companies’ reliance on Commerce’s past conduct of CVD expedited reviews
is misplaced. See Def.-Ints.’ Opp’n Cmts. at 24 & nn.61–62. In that case, the U.S.
Supreme Court held that the Government’s rescission of the Deferred Action for
Childhood Arrivals (“DACA”) program was arbitrary and capricious because it failed to
consider whether there were reliance interests and, if so, whether they were significant,
and to weigh any such interests against competing policy interests. See Homeland
Sec., 140 S. Ct. at 1913–15. Homeland Security addresses the requirement that an
agency engage in reasoned decision-making that is reviewable by a court pursuant to
the “arbitrary and capricious” standard set forth in 5 U.S.C. § 706(2)(A) and explains
that a prior illegality finding was limited to one aspect of the program (benefits) and did
not consider whether another aspect of the program (forbearance) may have been
treated separately. See id. at 1905, 1910-15. The Court’s discussion of the importance
of considering reliance interests must therefore be viewed in that context. Homeland
Security does not address the circumstances under which an agency may apply
prospectively a decision of this court to vacate an agency action.
Additionally, Commerce’s conduct of the CVD expedited review was not
harmless error. See Def.-Ints.’ Opp’n Cmts. at 31–33. While the APA directs the court
to take “due account . . . of the rule of prejudicial error, 5 U.S.C. § 706, an agency action
will be “set aside” for “substantial procedural or substantive” errors. Intercargo Ins. Co.
v. United States, 83 F.3d 391, 394 (Fed. Cir. 1996). The Canadian Parties’ offer no
authority for the notion that a regulation issued (and a proceeding conducted) ultra vires
is not a substantial substantive error.
Case 1:19-cv-00164-MAB Document 35 Filed 08/18/21 Page 47 of 48

Consol. Court No. 19-00122 	Page 48
merited upon receipt of an appropriate request and consistent with the relevant statutory
and regulatory criteria. Lastly, the Canadian Parties request the court to stay
Commerce’s enforcement of its decision. Def.-Ints.’ Reply Cmts. at 12–13. Such
requests are governed by USCIT Rule 62 and the Canadian Parties may file a motion
for the court’s consideration with briefing from all Parties at the appropriate time in
accordance therewith.
CONCLUSION
In accordance with the foregoing, Commerce’s Remand Results will be
sustained. Additionally, the court will vacate 19 C.F.R. § 351.214(k) and the Final
Results of Expedited Review, with implementation consistent with this opinion.
With respect to the pending Rule 56.2 Motions, consistent with the court’s
disposition herein, the court will grant in part Plaintiff’s motion with respect to
Commerce’s promulgation of 19 C.F.R. § 351.214(k) and deny Plaintiff’s remaining
arguments. The court will further deny as moot the Canadian Parties’ respective Rule
56.2 Motions. Judgment will be entered accordingly.
/s/ 	Mark A. Barnett
Mark A. Barnett, Chief Judge
Dated: August 18, 2021
New York, New York
Case 1:19-cv-00164-MAB Document 35 Filed 08/18/21 Page 48 of 48