Canadian Gov't Says CIT Ruling Striking Down Expedited CVD Reviews Makes FTA Talks 'More Difficult'
Requiring all actions needed to implement a trade agreement to be specifically delegated by Congress to federal agencies would interfere with Fast Track Authority by effectively negating assurances to negotiating partners that Congress will implement the provisions as agreed to by the United States during the negotiation of the trade agreement, plaintiff-appellants, including the Canadian government, argued in a Feb. 22 reply brief at the U.S. Court of Appeals for the Federal Circuit (Committee Overseeing Action for Lumber Internaitonal Trade Investigatoins or Negotiations v. United States, Fed. Cir. # 22-1021).
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"If implementing legislation could be construed by U.S. courts as precluding a practice required by a negotiated agreement and that was specifically endorsed by Congress, other countries could not count on the United States as a good faith negotiating counterparty," the brief said. "Similarly, other countries could not rely on U.S. commitments made in the negotiating process if implementing legislation could be construed as removing pre-existing Executive Branch authorities (as existed here regarding a countervailing duty ... exclusion process), simply because the implementing legislation does not expressly repeat such prior authorities," it said.
The case concerns a January 2018 CVD order on softwood lumber from Canada, after which Commerce carried out an expedited CVD review for various Canadian lumber companies. The Court of International Trade subsequently ruled that Commerce did not have the authority to conduct the review (see 2302080039), ruling that Section 103(a) of the Uruguay Round Agreements Act did not authorize the regulation establishing the expedited review scheme. The Canadian lumber companies, along with the Canadian federal government and the governments of Quebec and New Brunswick, appealed the decision, arguing that Section 103(a) provides the legal basis for the reviews.
Responding to an amicus brief from the U.S., the appellant said the trade court's "narrow view of Commerce's authority failed to consider the manner in which congressional approval is provided" under Trade Promotion Authority, often referred to as "Fast Track."
"Consistent with all Fast Track legislation, the applicable Fast Track statute here required that, if changes in existing laws, or new statutory authority, were considered necessary or appropriate to implement the URAA, they had to be contained in the implementing bill," the brief said. "Congress also granted broad authority to administrative agencies in 19 U.S.C. § 3513(a)(2) to issue regulations to implement provisions that did not require statutory changes. Because the expedited review procedures did not conflict with any existing statutory procedures, no statutory changes were required with respect to the expedited review procedures."
Added Mobilier Rustique: "Once it is accepted that Commerce clearly had (both before and after enactment of the URAA in 1994) the authority to conduct exclusion reviews, it necessarily follows that Commerce could lawfully publish a regulation informing the public about the logistics for exclusion reviews. Although there are several other valid bases for the same conclusion, this Court can -- as the United States has now formally opined - uphold and reinstate 19 C.F.R. §351.214(k) for this reason alone."