US Reading of Intervention Statute 'Absurd,' Exporters Tell CIT

The government's claim that a group of Canadian softwood lumber exporters shouldn't be able to intervene in an antidumping duty case is based on "an unreasonably narrow, absurd, and constitutionally problematic reading of" the statute on parties entitled to participate in civil actions, the exporters argued (Government of Canada v. United States, CIT Consol. # 23-00187).

Both exporters were interested parties and parties to the proceeding in the 2021 AD review of softwood lumber products from Canada, they said in a Dec. 21 reply to the U.S. and the Committee Overseeing Action for Lumber International Trade Investigations or Negotiations, the AD petitioner. The exporters argued that they were interested parties because they "submitted factual information and meaningfully put the Department on notice of their concerns" in the AD review, the brief said.

"Fundamental principles of statutory interpretation and equity demand that foreign producers/exporters and U.S. importers in the NB Respondent's position be deemed 'part[ies] to the proceeding'" under the relevant statute, the exporters said.

In the review, the companies participated as non-selected respondents and filed their own requests for review. Attempting to distinguish cases where intervention was denied to certain companies in AD cases, the exporters said in those instances, the spurned companies were not foreign exporters that filed their own review requests.

The companies added that regardless of whether filing a review request is itself enough to confer "party to the proceeding" status on other categories of interested parties, that act "must be deemed sufficient to confer" this status since the act "put[s] Commerce on notice of [their] concerns," the brief said.

Any reading of the statute that denies the right to intervene for these parties "would be manifestly inequitable, lead to absurd results, and raise serious constitutional concerns," the brief said. Under the U.S. reading of the statute, non-selected exporters that request review would be "shut out of the court system and unable to challenge the exorbitantly or unduly high final non-selected rate applied to their exports."

They would be denied the right to challenge "even a blatant violation of the AD statute" simply because they were not chosen for individual examination, the exporters said.