Slip Op. 20-52

UNITED STATES COURT OF INTERNATIONAL TRADE

SHAKE AND SHINGLE ALLIANCE,

Plaintiff,

and

GOVERNMENT OF CANADA,

Plaintiff-Intervenor,

v.

UNITED STATES,

Defendant,

and

COMMITTEE OVERSEEING ACTION 

FOR LUMBER INTERNATIONAL 

TRADE INVESTIGATIONS OR 

NEGOTIATIONS,

Defendant-Intervenor.

Before: Jennifer Choe-Groves, Judge

Court No. 18-00228

OPINION

[Sustaining the U.S. Department of Commerce’s remand redetermination as to the scope ruling 

on certain cedar shakes and shingles.]

Dated: April 20, 2020

Heather Jacobson, Junker & Nakachi P.C., of Seattle, WA, for Plaintiff Shake and Shingle 

Alliance.

Eric S. Parnes, Joanne E. Osendarp, Daniel M. Witkowski, and Stephen R. Halpin III, Hughes 

Hubbard & Reed LLP, of Washington, D.C., for Plaintiff-Intervenor Government of Canada.

Stephen C. Tosini, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, U.S. 

Department of Justice, of Washington, D.C., for Defendant United States. With him on the brief 
Court No. 18-00228 Page 2

were Joseph H. Hunt, Assistant Attorney General, Jeanne E. Davidson, Director, and Patricia M. 

McCarthy, Assistant Director.

David A. Yocis, Lisa W. Wang, Whitney M. Rolig, and Zachary J. Walker, Picard, Kentz & 

Rowe LLP, of Washington, D.C., for Defendant-Intervenor Committee Overseeing Action for

Lumber International Trade Investigations or Negotiations.

Choe-Groves, Judge: The court revisits the decades-long dispute over Canadian 

softwood lumber in this case. Specifically, the court reviews here whether the scope of the U.S. 

Department of Commerce’s (“Commerce”) antidumping and countervailing duty orders on 

certain softwood lumber products from Canada cover certain cedar shakes and shingles (“CSS”).

Certain Softwood Lumber Products From Canada, 83 Fed. Reg. 350 (Dep’t Commerce Jan. 3, 

2018) (antidumping duty order and partial amended final determination) (“AD Order”) and

Certain Softwood Lumber Products From Canada, 83 Fed. Reg. 347 (Dep’t Commerce Jan. 3, 

2018) (amended final affirmative countervailing duty determination and countervailing duty 

order) (“CVD Order”) (collectively, “Orders”). 

Before the court are the Final Results of Redetermination Pursuant to Court Remand

Order, ECF No. 58 (“Remand Results”), filed by Commerce per the court’s opinion, Shake and 

Shingle Alliance v. United States, 43 CIT __, 415 F. Supp. 3d 1249, 1260 (2019) (“Shake and 

Shingle Alliance I”). Commerce reversed its prior determination and found in the Remand 

Results that CSS were outside the scope of the order, and the court sustains Commerce’s 

Remand Results.

BACKGROUND

The court presumes familiarity with the facts of this case as set out in Shake and Shingle 

Alliance I and recites the facts pertinent to the court’s review of the Remand Results.
Court No. 18-00228 Page 3

Commerce issued the Orders on January 3, 2018. AD Order, 83 Fed. Reg at 350; CVD 

Order, 83 Fed. Reg. at 347. The Orders contained identical scope language describing the 

subject merchandise:

The merchandise covered by this order is softwood lumber, siding, flooring and 

certain other coniferous wood (softwood lumber products). The scope includes:

• Coniferous wood, sawn, or chipped lengthwise, sliced or peeled, 

whether or not planed, whether or not sanded, or whether or not

finger-jointed, of an actual thickness exceeding six millimeters.

• Coniferous wood siding, flooring, and other coniferous wood 

(other than moldings and dowel rods), including strips and friezes 

for parquet flooring, that is continuously shaped (including, but not 

limited to, tongued, grooved, rebated, chamfered, V-jointed, beaded, 

molded, rounded) along any of its edges, ends, or faces, whether or 

not planed, whether or not sanded, or whether or not end-jointed.

• Coniferous drilled and notched lumber and angle cut lumber.

• Coniferous lumber stacked on edge and fastened together with 

nails, whether or not with plywood sheathing.

• Components or parts of semi-finished or unassembled finished 

products made from subject merchandise that would otherwise meet 

the definition of the scope above.

Finished products are not covered by the scope of [the Orders].

AD Order, 83 Fed. Reg. at 351; CVD Order, 83 Fed. Reg. at 349. In its final scope ruling, 

Commerce determined that the scope of the Orders covers CSS. Shake and Shingle Alliance I,

415 F. Supp. 3d at 1255 (citing Final Scope Ruling – Cedar Shakes and Shingles, A-122-857/C122-858, at 1, PD 18 (Sept. 10, 2018) (“Final Scope Ruling”)). Plaintiff Shake and Shingle 

Alliance (“Plaintiff”) and Plaintiff-Intervenor Government of Canada (“Plaintiff-Intervenor”)
Court No. 18-00228 Page 4

challenged the Final Scope Ruling to this court. Pl. Mot. for J. on Agency R., ECF No. 35; 

Pl-Int. Rule 56.2 Mot. for J. on Agency R., ECF No. 36.

This Court held that Commerce’s finding that the scope of the Orders covers CSS was

not in accordance with the law and remanded the case to Commerce. Shake and Shingle 

Alliance I, 415 F. Supp. 3d at 1260. The court reasoned that Commerce’s Final Scope Ruling

was contrary to the controlling regulation, 19 C.F.R. § 351.225(k)(1), because Commerce’s 

analysis of the (k)(1) criteria lacked consideration of prior softwood lumber proceedings or prior 

scope determinations in which Commerce found CSS distinct from softwood lumber since at 

least 1983.1 Id. at 1259 (noting the extensive history of softwood lumber proceedings spans five

investigations and two international agreements and “that past proceedings involved the same 

subject [merchandise] (softwood lumber) and country (Canada) and included scope language 

substantively identical to the current scope language[]”). The court concluded that Commerce’s 

“passing reference to the history of contrary prior softwood lumber investigations in its Final

Scope Ruling” was not in accordance with the methodology set forth in Commerce’s own 

regulations. Id. at 1259–60.

Commerce issued the Remand Results, finding that CSS fall beyond the scope of the 

Orders, on February 13, 2020. Id. at 1. Defendant United States (“Defendant”), Plaintiff, and 

 

1 The framework for evaluating the scope of an order is set forth in Commerce’s regulations. 

Under 19 C.F.R. § 351.225(k), Commerce must consider “[t]he descriptions of the merchandise 

contained in the petition, the initial investigation, and the determinations of [Commerce] 

(including prior scope determinations) and the [International Trade] Commission.” Id.

§ 351.225(k)(1). If Commerce “can determine, based solely upon the application [for a scope 

ruling] and the descriptions of the merchandise referred to in [19 C.F.R. § 351.225(k)(1)], 

whether a product is included within the scope of an order . . . , [then Commerce] will issue a 

final ruling . . . .” Id. § 351.225(d).
Court No. 18-00228 Page 5

Plaintiff-Intervenor urge the court to sustain the Remand Results because Commerce’s analysis 

in the Remand Results complies with the court’s remand order. See Def. Cmts. in Supp. of the 

Remand Results 1–2, ECF No. 60 (“Def. Cmts.”); Pl. Cmts. in Supp. of Final Remand Results 5, 

ECF No. 61 (“Pl. Cmts.”); Pl.-Int. Cmts. in Supp. of the Remand Results 3, ECF No. 62 (“Pl.-Int. 

Cmts.”). No party, including Defendant-Intervenor Committee Overseeing Action for Lumber 

International Trade Investigations or Negotiations (“Defendant-Intervenor” or “Petitioner”), filed 

comments opposing the Remand Results. For the following reasons, the court sustains the 

Remand Results.

JURISDICTION AND STANDARD OF REVIEW

The court has jurisdiction under 19 U.S.C. § 1516a(a)(2)(B)(iii) and 28 U.S.C. § 1581(c). 

The court will uphold Commerce’s final scope determination, including redeterminations made 

on remand, unless the findings are unsupported by substantial record evidence, or are otherwise 

not in accordance with the law. 19 U.S.C. § 1516a(b)(1)(B)(i).

DISCUSSION

Commerce’s Remand Results are consistent with the court’s prior opinion and order in 

Shake and Shingle Alliance I. Commerce reversed its conclusion in the Remand Results and

explained its reconsideration of the same record evidence, in light of reviewing the parties’ 

comments and binding precedent from the U.S. Court of Appeals for the Federal Circuit in

ArcelorMittal Stainless Belgium N.V. v. United States, 694 F. 3d 82, 88–89 (Fed. Cir. 2012)

(“ArcelorMittal”). Remand Results at 4. Commerce found that the final “scope language from 

Lumber IV and the Orders is unquestionably similar and, in the portions relevant to the scope 

issue at hand, virtually identical.” Id. at 8; Notice of Amended Final Determination of Sales at 
Court No. 18-00228 Page 6

Less Than Fair Value and Antidumping Duty Order: Certain Softwood Lumber Products from 

Canada, 67 Fed. Reg. 36,068 (Dep’t Commerce May 22, 2002); Notice of Amended Final 

Affirmative Countervailing Duty Determination and Notice of Countervailing Duty Order: 

Certain Softwood Lumber Products From Canada, 67 Fed. Reg. 36,070 (Dep’t Commerce May 

22, 2002) (together, “Lumber IV”). Commerce interpreted the scope language in Lumber IV to

exclude CSS because the applicable tariff heading, 4418.50.00, Harmonized Tariff Schedule of 

the United States, covered “articles of shingles and shakes,” which were “not covered by the 

scope of these investigations.” Remand Results at 8–9. When comparing the current scope 

language at issue here against Commerce’s prior determination in Lumber IV treating CSS as 

outside the scope, Commerce concluded that its prior determination “weighs heavily in favor of a 

determination in this proceeding that CSS is not subject to the Orders.” Id. at 9.

Commerce found that specific language and an exhibit included in the petition—a (k)(1) 

source of information—showed that Defendant-Intervenor lacked an intent to include CSS as 

subject to the scope of the Orders. See id. at 9–10 (analyzing language in the petition that “the

remainder [of certain timber] is used in veneer, oriented strand board (‘OSB’), pulp, shake and 

shingle, and other mills that generally produce merchandise not subject to this Petition[]”)2 and

 

2 Commerce cited the following language in the petition as support that Defendant-Intervenor 

described CSS as non-subject merchandise:

Overall, of the timber harvested in BC from all sources (Crown and 

private), sawmills use 70.6 percent (41.3 percent on the Coast and 

82.2 percent in the Interior), while 10.1 percent is exported (29.7 

percent on the Coast and 2.4 percent in the Interior) and the

remainder is used in veneer, oriented strand board (“OSB”), pulp, 

shake and shingle, and other mills that generally produce 

merchandise not subject to this Petition.
Court No. 18-00228 Page 7

9–11 (discussing an exhibit attached to the petition that listed shake and shingle mills as 

examples of mills in British Columbia that produce allegedly non-subject merchandise).3

Importantly, Commerce disclaimed its prior reasoning for considering and rejecting Plaintiff and 

Plaintiff-Intervenor’s arguments that the language Defendant-Intervenor used in the petition and 

attached exhibit supported a finding that CSS fall outside the scope of the Orders. Compare

Remand Results at 10–11 with Final Scope Ruling at 18.

Commerce provided a reasonable explanation that binding precedent in ArcelorMittal

compelled reviewing “prior interpretations” of “identical scope language” in previous orders 

when issuing a scope ruling. Remand Results at 4, 8–9. Commerce also relied upon record 

evidence in explaining why the language and supporting exhibit Defendant-Intervenor included 

with the petition “persuade[d] Commerce to conclude that, at the time the Petition was filed, 

[Petitioner] did not consider shakes and shingles to be subject to the investigations and Orders.”

Id. at 10. The court concludes that the Remand Results are supported by substantial evidence 

and in accordance with the law because Commerce’s (k)(1) analysis, citations to record 

evidence, and explanation supports a finding that the scope of the Orders excludes CSS. See

Final Scope Ruling at 12 (“[W]e have determined that the factors in 19 CFR 351.225(k)(1) are 

dispositive as to whether CSS are subject merchandise.”); Sango Int’l L.P. v. United States, 484 

F.3d 1371, 1379 (Fed. Cir. 2007) (To be dispositive, the (k)(1) sources Commerce examined 

 

Remand Results at 9 (citing Petition, Vol. III at 10)

3 Id. (citing Petition, Vol. III at 10).
Court No. 18-00228 Page 8

“must be ‘controlling’ of the scope inquiry in the sense that they definitively answer the scope 

question.”).

Although the parties challenged Commerce’s findings at the administrative level, no

party filed comments challenging the Remand Results before the court. See generally Def. 

Cmts. at 2; Pl. Cmts. at 5; Pl.-Int. Cmts. at 2. Because the court concludes that the Remand 

Results comply with the court’s remand order, the court sustains the Remand Results.

CONCLUSION

The court sustains the Remand Results.

Judgment will be entered accordingly.

/s/ Jennifer Choe-Groves

Jennifer Choe-Groves, Judge

Dated: April 20, 2020

New York, New York