CIT Overturns Ruling That Cedar Shakes and Shingles Are Subject to Canada Softwood Lumber Duties
The Court of International Trade on Nov. 13 overturned a Commerce Department scope ruling that found cedar shingles and shakes are subject to antidumping and countervailing duties on softwood lumber from Canada. The court said Commerce needed to explain why it had never considered shingles and shakes subject to softwood lumber cases dating back to 1982, but suddenly found they’re covered by the orders in the 2018 scope ruling.
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In that recent scope ruling, Commerce said shingles and shakes are included under the scope because they are diagonally cut, which qualifies as “lengthwise” (see 1810110040). The agency said it didn’t need to address the prior scope history of the long-running softwood lumber case because the scope of the 2018 AD/CV duty orders is different from the scopes of all of the previous four softwood lumber investigations over the past 36 years.
Indeed, in each of those prior investigations, and in two suspension agreements that ended a pair of them, cedar shakes and shingles were explicitly stated as not covered by the scope. In court filings, the Canadian government also noted that the petition for the current AD/CV duty orders did not include subheading 4418.50 for shingles and shakes.
Under Commerce’s regulations, the agency is required to consider scope determinations made in prior proceedings. “The court notes that Commerce’s Final Scope Ruling contains no substantive discussion of prior lumber proceedings or prior scope determinations in which Commerce found [cedar shingles and shakes] to be distinct from softwood lumber since at least 1983,” CIT said. “Given that past proceedings involved the same subject (softwood lumber) and country (Canada) and included scope language substantively identical to the current scope language, the court concludes that Commerce cannot claim to have sufficiently addressed the prior proceedings.”
“The court concludes that Commerce’s Final Scope Ruling is not in accordance with the law,” it said. CIT sent the scope ruling back so the agency can further address those prior scope determinations. It ordered Commerce to refile the scope ruling by Jan. 13, 2020.
(Shake and Shingle Alliance v. U.S., Slip Op. 19-140, CIT # 18-00228, Judge Choe-Groves)