[Federal Register Volume 86, Number 165 (Monday, August 30, 2021)]
[Notices]
[Pages 48396-48398]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-18596]


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DEPARTMENT OF COMMERCE

International Trade Administration

[C-122-858]


Certain Softwood Lumber Products From Canada: Notice of Court 
Decision Not in Harmony With the Final Results of Countervailing Duty 
Expedited Review; Notice of Rescission of Final Results of Expedited 
Review; Notice of Amended Cash Deposit Rates

AGENCY: Enforcement and Compliance, International Trade Administration, 
Department of Commerce.

SUMMARY: On August 18, 2021, the U.S. Court of International Trade 
(CIT) issued its final judgment in Committee Overseeing Action for 
Lumber International Trade Investigations or Negotiations, et al. v. 
United States, et al., Consol. Court No. 19-00122, sustaining the 
Department of Commerce's (Commerce) remand results pertaining to the 
expedited review of the countervailing duty (CVD) order on certain 
softwood lumber products (softwood lumber) from Canada covering the 
period January 1, 2015, through December 31, 2015. Commerce is 
notifying the public that the CIT's final judgment is not in harmony 
with Commerce's final results of the expedited review, and that 
Commerce is rescinding the final results; reinstating the CVD order for 
Les Produits Forestiers D&G Lt[eacute]e (D&G), Marcel Lauzon Inc. 
(MLI), North American Forest Products Ltd. (NAFB) (located in New 
Brunswick), Roland Boulanger & Cie Lt[eacute]e (Roland), and Scierie 
Alexandre Lemay & Fils Inc. (Lemay) (including their cross-owned 
affiliates); and reassigning the cash deposit rate for the companies 
covered by the Final Results of Expedited Review.

DATES: Applicable August 28, 2021.

FOR FURTHER INFORMATION CONTACT: Kristen Johnson, AD/CVD Operations, 
Office III, Enforcement and Compliance, International Trade 
Administration, U.S. Department of Commerce, 1401 Constitution Avenue 
NW, Washington, DC 20230; telephone: (202) 482-4793.

SUPPLEMENTARY INFORMATION:

Background

    On January 3, 2018, Commerce published the CVD order on softwood 
lumber from Canada.\1\ On July 5, 2019, Commerce published its Final 
Results of Expedited Review for the CVD Order.\2\ In the Final Results 
of Expedited Review, Commerce stated that it promulgated 19 CFR 
351.214(k), its regulations for conducting CVD expedited reviews, 
pursuant to section 103(a) of the Uruguay Round of Agreements Act 
(URAA), which made several amendments to the antidumping and CVD 
provisions of the Tariff Act of 1930, as amended (the Act).\3\ 
Specifically, Commerce explained that Article 19.3 of the World Trade 
Organization Agreement on Subsidies and Countervailing Measures (SCM 
Agreement) expressly provides for expedited reviews of non-investigated 
exporters or producers in CVD proceedings and that the Statement of 
Administrative Action (SAA) states that ``Article 19.3 of the Subsidies 
Agreement provides that any exporter whose exports are subject to a CVD 
order, but which was not actually investigated for reasons other than a 
refusal to cooperate, shall be entitled to an expedited review to 
establish an individual CVD rate for that exporter.'' \4\ Although the 
URAA did not implement a specific provision for the conduct of CVD 
expedited reviews in the Act, Commerce concluded that it had the 
authority to promulgate the CVD expedited review regulations at 19 CFR 
351.214(k) pursuant to section 103(a) of the URAA, which provides that 
``appropriate officers of the United States Government may issue such 
regulations, as may be necessary to ensure that any provision of this 
Act, or amendment made by this Act, . . . is appropriately implemented 
. . . .'' \5\
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    \1\ See Certain Softwood Lumber Products from Canada: Amended 
Final Affirmative Countervailing Duty Determination and 
Countervailing Duty Order, 83 FR 347 (January 3, 2018) (CVD Order).
    \2\ See Certain Softwood Lumber Products from Canada: Final 
Results of Countervailing Duty Expedited Review, 84 FR 32121 (July 
5, 2019) (Final Results of Expedited Review), and accompanying 
Issues and Decision Memorandum (IDM).
    \3\ See Final Results of Expedited Review IDM at 19 (citing 
URAA, Pub. L. 103-465, 108 Stat. 4809 (1994)).
    \4\ Id. at 18 (citing SAA H.R. Doc. 103-316, Vol. I at 870 
(1994), reprinted at 1994 U.S.C.C.A.N. 4040, 4199, at 941. Section 
102(d) of the URAA states that the SAA ``shall be regarded as an 
authoritative expression by the United States concerning the 
interpretation and application of the Uruguay Round Agreements and 
this Act in any judicial proceeding in which a question arises 
concerning such interpretation or application'').
    \5\ See Final Results of Expedited Review IDM at 19 (citing 
section 103(a) of the URAA).

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[[Page 48397]]

    After determining that it had statutory authority to conduct the 
expedited review, Commerce found that among the eight companies subject 
to the CVD expedited review, five of the companies each had a de 
minimis subsidy rate and were, therefore, excluded from the CVD 
Order.\6\ The five companies are D&G, MLI, NAFB (located in New 
Brunswick), Roland, and Lemay (and their cross-owned affiliates).\7\ 
The other three companies (and their cross-owned affiliates) subject to 
the review that received individual above de minimis rates are Fontaine 
Inc. (Fontaine), Mobilier Rustique (Beauce) Inc. (Mobilier Rustique), 
and Produits Matra Inc. and Sechoirs de Beauce Inc. (Produits 
Matra).\8\
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    \6\ See Final Results of Expedited Review, 84 FR at 32122.
    \7\ Id.
    \8\ Id.
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    The Committee Overseeing Action for Lumber International Trade 
Investigations or Negotiations appealed Commerce's Final Results of 
Expedited Review. On November 19, 2020, the CIT held that Commerce 
exceeded its authority in promulgating 19 CFR 351.214(k) pursuant to 
section 103(a) of the URAA.\9\ Specifically, the CIT explained that 
because section 103(a) of the URAA only authorizes Commerce to issue 
regulations for enacted provisions of the URAA, and because the URAA 
does not contain a provision explicitly authorizing CVD expedited 
reviews, section 103(a) cannot be the basis of Commerce's authority for 
promulgating its CVD expedited review regulations.\10\ The CIT remanded 
the Final Results of Expedited Review to Commerce for Commerce to 
either take action in conformity with its opinion, or to consider 
alternative legal authorities interested parties had presented to the 
CIT as the basis for Commerce's promulgation of its CVD expedited 
review regulations at 19 CFR 351.214(k) to determine individual subsidy 
rates for companies not individually examined in an investigation.\11\ 
These alternative legal authorities included sections 101(a), 101(b), 
and 103(b) of the URAA; sections 705(c), 751(a), 751(b), and 77A(e) of 
the Act; and the inherent authority of agencies to reconsider prior 
decisions.\12\
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    \9\ See Committee Overseeing Action for Lumber International 
Trade Investigations or Negotiations, et al. v. United States, et 
al., Court No. 19-00122, Slip Op. 20-167 (CIT 2020), at 17. The CIT 
also held that because the SAA does not propose any actions for the 
implementation of CVD expedited reviews, Commerce was not authorized 
to promulgate 19 CFR 351.214(k) under section 103(b) of the URAA, 
which provides for the issuance of ``{a{time} ny interim regulation 
necessary or appropriate to carry out any action proposed in the 
{SAA{time} .'' Id. at 23-24.
    \10\ Id. at 17-18, 20-21.
    \11\ Id. at 3-4, 33-35.
    \12\ Id. at 33. Although the CIT ruled that section 103(b) of 
the URAA does not provide Commerce authority to promulgate its CVD 
expedited review regulations, the CIT allowed Commerce to further 
elaborate on its arguments regarding section 103(b) on remand. Id.
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    In its final remand redetermination, issued in February 2021, 
Commerce determined that, in accordance with the CIT's opinion and 
interpretation of the URAA, section 103(a) of the URAA, as well as the 
other legal authorities presented to the CIT, are not adequate bases 
for the promulgation of the CVD expedited review regulations under 19 
CFR 351.214(k).\13\ The CIT sustained Commerce's final redetermination; 
vacated the CVD expedited review regulations at 19 CFR 351.214(k); 
vacated the Final Results of Expedited Review; ordered that the 
companies excluded from the CVD Order as a result of the expedited 
review be reinstated under the CVD Order prospectively; and for all 
companies that were covered by the Final Results of Expedited Review, 
impose a cash deposit requirement based on the all-others rate from the 
investigation or the company-specific rate determined in the most 
recently completed administrative review in which the company was 
reviewed.\14\ Consequently, Commerce is reinstating the five excluded 
companies in the CVD Order prospectively (D&G, MLI, NAFB (located in 
New Brunswick), Roland, and Lemay) and imposing on those companies a 
14.19 percent ad valorem cash deposit requirement based on the all-
others rate from the investigation.\15\ Commerce is also assigning as 
the cash deposit rate for Fontaine, Mobilier Rustique, and Produits 
Matra either the all-others rate from the investigation, or the rate 
determined for the company in the most recently completed 
administrative review in which the company was reviewed.
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    \13\ See Final Results of Redetermination Pursuant to Court 
Remand, Committee Overseeing Action for Lumber International Trade 
Investigations or Negotiations, et al. v. United States, et al., 
Court No. 19-00122, Slip Op. 20-167 (CIT 2020), dated February 17, 
2021.
    \14\ See Committee Overseeing Action for Lumber International 
Trade Investigations or Negotiations, et al. v. United States, et 
al., Court No. 19-00122, Slip Op. 21-104 (CIT 2021). Although the 
CIT vacated 19 CFR 351.214(k), it explained that because ``notice 
and comment procedure is not required whe{n{time}  a court vacates a 
rule after making a finding on the merits,'' the CIT declined to 
order Commerce to formally repeal 19 CFR 351.214(k). Id. at fn. 28 
(citing Nat'l Parks Cons. Ass'n v. Salazar, 660 F. Supp. 2d 3, 5 
(D.D.C. 2009) (citing Cement Kiln Recycling Coal. v. EPA, 255 F.3d 
855, 872 (D.C. Cir. 2001))).
    \15\ See CVD Order, 83 FR at 349.
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Notice

    In its decision in Timken,\16\ as clarified by Diamond 
Sawblades,\17\ the Court of Appeals for the Federal Circuit held that, 
pursuant to section 516A(c) and (e) of the Act, Commerce must publish a 
notice of court decision that is not ``in harmony'' with a Commerce 
determination and must suspend liquidation of entries pending a 
``conclusive'' court decision. The CIT's August 18, 2021, judgment 
constitutes a final decision of the CIT that is not in harmony with 
Commerce's Final Results of Expedited Review. We are issuing this 
notice consistent with section 516A(c) of the Act and in accordance 
with the CIT's order.
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    \16\ See Timken Co. v. United States, 893 F.2d 337 (Fed. Cir. 
1990) (Timken).
    \17\ See Diamond Sawblades Manufacturers Coalition v. United 
States, 626 F.3d 1374 (Fed. Cir. 2010) (Diamond Sawblades).
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Cash Deposit Rates

    Because there is now a final court judgment vacating the Final 
Results of Expedited Review, Commerce is reassigning the 
countervailable subsidy rates for the companies subject to the Final 
Results of Expedited Review as follows:

------------------------------------------------------------------------
                                                           Subsidy rate
                    Producer/exporter                       (percent ad
                                                             valorem)
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Les Produits Forestiers D&G Lt[eacute]e and its cross-             14.19
 owned affiliates \18\..................................
Marcel Lauzon Inc. and its cross-owned affiliates \19\..           14.19
North American Forest Products Ltd. (located in New                14.19
 Brunswick) and its cross-owned affiliates \20\.........
Roland Boulanger & Cie Lt[eacute]e and its cross-owned             14.19
 affiliates \21\........................................
Scierie Alexandre Lemay & Fils Inc. and its cross-owned            14.19
 affiliates \22\........................................
Fontaine Inc. and its cross-owned affiliates \23\.......           14.19
Mobilier Rustique (Beauce) Inc. and its cross-owned                14.19
 affiliates \24\........................................

[[Page 48398]]

 
Produits Matra Inc. and Sechoirs de Beauce Inc. and its             7.42
 cross-owned affiliate \25\.............................
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Cash Deposit Requirements

    Commerce will issue revised cash deposit instructions to U.S. 
Customs and Border Protection (CBP).
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    \18\ Commerce finds the following companies to be cross-owned 
with Les Produits Forestiers D&G Lt[eacute]e: Le Groupe Gesco-Star 
Ltee, Les Produits Forestiers Portbec Ltee, and Les Produits 
Forestiers Startrees Ltee. The subsidy rate assigned to these 
companies is the all-others rate from the investigation. See CVD 
Order.
    \19\ Commerce finds the following companies to be cross-owned 
with Marcel Lauzon Inc.: Placements Marcel Lauzon Ltee and 
Investissements LRC Inc. The subsidy rate assigned to these 
companies is the all-others rate from the investigation. See CVD 
Order.
    \20\ Commerce finds the following companies to be cross-owned 
with North American Forest Products Ltd.: Parent-Violette Gestion 
Ltee and Le Groupe Parent Ltee. The subsidy rate assigned to these 
companies is the all-others rate from the investigation. See CVD 
Order.
    \21\ Commerce finds the following companies to be cross-owned 
with Roland Boulanger & Cie Ltee: Industries Daveluyville Inc. and 
Les Manufacturiers Warwick Ltee. The subsidy rate assigned to these 
companies is the all-others rate from the investigation. See CVD 
Order.
    \22\ Commerce finds the following companies to be cross-owned 
with Scierie Alexandre Lemay & Fils Inc.: Bois Lemay Inc. and 
Industrie Lemay Inc. The subsidy rate assigned to these companies is 
the all-others rate from the investigation. See CVD Order.
    \23\ Commerce finds the following companies to be cross-owned 
with Fontaine Inc.: Gestion Natanis Inc., Les Placements Jean-Paul 
Fontaine Ltee, and Placements Nicolas Fontaine Inc. The subsidy rate 
assigned to these companies is the all-others rate from the 
investigation. See CVD Order.
    \24\ Commerce finds the following companies to be cross-owned 
with Mobilier Rustique (Beauce) Inc.: J.F.S.R. Inc., Gestion C.A. 
Rancourt Inc., Gestion J.F. Rancourt Inc., Gestion Suzie Rancourt 
Inc., Gestion P.H.Q. Inc., 9331-3419 Quebec Inc., 9331-3468 Quebec 
Inc., and SPQ Inc. The subsidy rate assigned to these companies is 
the all-others rate from the investigation. See CVD Order.
    \25\ Commerce finds the following company to be cross-owned with 
Produits Matra Inc. and Sechoirs de Beauce Inc.: Bois Ouvre de 
Beauceville (1992), Inc. The subsidy rate assigned to these 
companies is the non-selected rate from the first administrative 
review of the order. See Certain Softwood Lumber Products from 
Canada: Final Results of the Countervailing Duty Administrative 
Review, 2017-2018, 85 FR 77163 (December 1, 2020).
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Liquidation of Suspended Entries

    At this time, Commerce remains enjoined by CIT order from 
liquidating entries of subject merchandise subject to the Final Results 
of Expedited Review that were produced and/or exported by Fontaine and 
that were entered into the United States, or withdrawn from warehouse, 
for consumption during the period April 28, 2017, through December 31, 
2018. These entries will remain enjoined pursuant to the terms of the 
injunction during the pendency of any appeals process. In the event the 
CIT's ruling is not appealed, or, if appealed, upheld by a final and 
conclusive court decision, Commerce intends to instruct CBP to assess 
countervailing duties on unliquidated entries of subject merchandise 
exported by Fontaine and that were entered into the United States, or 
withdrawn from warehouse, for consumption during the period April 28, 
2017, through December 31, 2018.
    Furthermore, Commerce's final results of administrative review of 
the CVD Order for the period April 28, 2017, through December 31, 2018 
are currently the subject of a United States Mexico Canada Agreement 
(USMCA) Binational Panel Review (USMCA Secretariat File No.: USA-CDA-
2020-10.12-01). Pursuant to that Panel Review, Commerce will continue 
to suspend liquidation of all entries of subject merchandise produced 
and/or exported by the companies subject to the first administrative 
review pending final disposition of the Binational Panel proceeding. 
Because Produits Matra was subject to the first administrative review, 
Commerce will continue to suspend liquidation of entries of subject 
merchandise produced and/or exported by Produits Matra (and its cross-
owned affiliate) that were entered, or withdrawn from warehouse, for 
the period April 28, 2017, through December 31, 2018, pending final 
disposition of the USMCA Binational Panel proceeding.

Notification to Interested Parties

    This notice is issued and published in accordance with sections 
516A(c) and (e) and 777(i)(1) of the Act.

    Dated: August 24, 2021.
Ryan Majerus,
Deputy Assistant Secretary for Policy and Negotiations.
[FR Doc. 2021-18596 Filed 8-27-21; 8:45 am]
BILLING CODE 3510-DS-P