Lumber Exporters Say Continued Collection of CVD Cash Deposits Violates CIT Order

Various companies that were originally excluded from an expedited countervailing duty review on Canadian softwood lumber asked the Court of International Trade to clarify that they're due refunds of CVD cash deposits (Committee Overseeing Action for Lumber International Trade Investigations or Negotiations v. United States, CIT # 19-00122).

The companies asked CIT to clarify its instruction to CBP to "discontinue ... the collection of" cash deposits on entries made before a prior CIT decision, which said it wasn't equitable to subject the companies' exports to the CVD order. The excluded parties asked the court to make clear that its order "includes the obligation to promptly refund all countervailing duty cash deposits" collected on exports from the parties and entered on or after Aug. 28, 2021, with interest.

Most recently in the case, the trade court remanded the expedited review for Commerce to review its decision not to attribute subsidies received by lumber suppliers to respondents (see 2404230031). The case had returned to CIT after the U.S. Court of Appeals for the Federal Circuit reversed the trade court's finding that expedited CVD reviews are not allowed under U.S. law (see 2304250061).

After the CAFC made this decision, CIT said it wasn't equitable to subject exporters who were originally excluded from the CVD order in the expedited review to "the consequences" of the order. The trade court told the U.S. to stop collecting CVD cash deposits on shipments made on or after Aug. 28, 2021.

Despite this order, the excluded companies said the U.S. "continues to withhold its collection of millions of dollars’ worth of CVD cash deposits previously obtained from the Originally Excluded Parties." The exporters said these are funds "to which courts have established Defendant is not entitled."

The excluded parties asked the trade court to "revise the language of the Order accompanying" its prior decision to "clarify Defendant’s obligation to restore the status quo ante by refunding the millions of dollars’ worth of deposits that Defendant would never have obtained but for the Originally Excluded Parties’ temporary reinstatement under the CVD Order."

Should the court find that it's unable to grant this request, the excluded parties claimed, the "same considerations that made it inequitable" to subject the companies to the CVD order "apply equally to Defendant's retention of CVD cash deposits." The continued collection of the deposits has a "direct and inequitable" effect and amounts to a preliminary injunction that the trade court originally denied, the brief said.