US Trade Court Sustains Remand Results for D&G in 2015 Canadian Lumber Review

On July 21, the US Court of International Trade sustained the US Commerce Department’s (DOC) fourth remand determination in litigation over its 2019 expedited review of the countervailing duty order on Canadian softwood lumber.

The case covered the 2015 period of review (POR) and left in place a 1.05% countervailable subsidy rate for Quebec producer Les Produits Forestiers D&G and its cross-owned affiliate Les Produits Forestiers Portbec.

D&G and Portbec challenged DOC’s treatment of alleged subsidies received by unaffiliated Canadian suppliers, arguing that the DOC should have applied the statutory upstream-subsidy provisions rather than its trading-company regulation.

The Court concluded that the companies had failed to adequately and timely raise their arguments during earlier remand proceedings and declined to order a fifth remand based on forfeiture and administrative exhaustion. The Court also held that the Supreme Court’s Loper Bright decision did not excuse the companies’ failure to exhaust their statutory-interpretation arguments.

Although the revised rate remains above the de minimis threshold, the Court sustained the final results as amended by the second, third, and fourth remand determinations.