Exporters Oppose US Bid to File Response to Status Report in Spat on Return of CVD Cash Deposits
Parties originally excluded from an expedited countervailing duty review on Canadian softwood lumber opposed the government's bid to file a supplemental brief to a status report in a dispute on whether the excluded parties can obtain refunds of CVD cash deposits. The originally excluded parties said the U.S. failed to establish good cause for submitting a reply to the status report (Committee Overseeing Action for Lumber International Trade Investigations or Negotiations v. United States, CIT # 19-00122).
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So far in the case, the Court of International Trade remanded the expedited review for the Commerce Department 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 aren't allowed under U.S. law (see 2304250061).
After the CAFC 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. The excluded companies said the U.S. continued to withhold the cash deposits, prompting the firms to ask the court to revise the language of the order accompanying its decision to clarify the government's obligation to refund the deposits (see 2411190038).
The parties submitted a joint status report earlier this month, in which the originally excluded parties reaffirmed their motion to obtain refunds of the CVD cash deposits. The report also detailed discussions held between the parties on how to resolve the case.
The government then sought leave to file a reply to the status report, arguing that the status report violated Federal Rule of Evidence 408, which bars the use of evidence of compromise offers and negotiations, and "exceeds the scope of the Court's order." The U.S. said FRE 408 was violated, since the status report tries to "place settlement discussions between the parties before the Court in support of the movants’ motion."
In response, the originally excluded parties said the rule isn't relevant here, since the rule only applies to evidence used to "prove or disprove the validity or amount of a dispute claim or to impeach by a prior inconsistent statement or contradiction." Even if the discussions could be considered "compromise negotiations," nothing in the status report is being offered as "evidence" to a "trier of fact," the brief said.
The parties also said the status report is in line with the court's order. While the government said the court only requested the status of the pending motion, the excluded parties said the U.S. omitted the full text of the court's order, which says that the joint status report "regarding the status of the pending motion" was only to be submitted "unless the motion is withdrawn." Since the lack of a withdrawal notice "establishes that the motion remains pending," limiting the report on the status of the pending motion to the "fact that it remains pending would be entirely redundant," the brief said.