Case: 22-1021 Document: 89 Page: 1 Filed: 04/25/2023
United States Court of Appeals
for the Federal Circuit
______________________
COMMITTEE OVERSEEING ACTION FOR
LUMBER INTERNATIONAL TRADE
INVESTIGATIONS OR NEGOTIATIONS,
Plaintiff-Appellee
FONTAINE INC., GOVERNMENT OF CANADA,
MARCEL LAUZON INC., LES PRODUITS
FORESTIERS D&G LTEE, NORTH AMERICAN
FOREST PRODUCTS LTD., PARENT-VIOLETTE
GESTION LTEE, LE GROUPE PARENT LTEE,
SCIERIE ALEXANDRE LEMAY & FILS INC.,
GOVERNMENT OF QUEBEC, MOBILIER
RUSTIQUE (BEAUCE) INC., GOVERNMENT OF
THE PROVINCE OF NEW BRUNSWICK,
Plaintiffs-Appellants
v.
UNITED STATES,
Defendant
______________________
2022-1021, 2022-1068, 2022-1078
______________________
Appeals from the United States Court of International
Trade in Nos. 1:19-cv-00122-MAB, 1:19-cv-00164-MAB,
1:19-cv-00168-MAB, 1:19-cv-00170-MAB, Judge Mark A.
Barnett.
______________________
Case: 22-1021 Document: 89 Page: 2 Filed: 04/25/2023
2 COMMITTEE OVERSEEING ACTION FOR LUMBER v. US
Decided: April 25, 2023
______________________
JY CHEH SOPHIA LIN, Picard Kentz & Rowe LLP, Wash-
ington, DC, argued for plaintiff-appellee Committee Over-
seeing Action for Lumber International Trade
Investigations or Negotiations. Also represented by
ANDREW WILLIAM KENTZ, NATHANIEL RICKARD, WHITNEY
MARIE ROLIG, ZACHARY WALKER, DAVID ALBERT YOCIS.
MARK B. LEHNARDT, Law Offices of David L. Simon,
PLLC, Washington, DC, argued for plaintiff-appellants
Fontaine Inc., Government of Canada, Government of Qué-
bec, Government of the Providence of New Brunswick.
EDWARD LEBOW, Haynes & Boone, LLP, Washington,
DC, argued for plaintiffs-appellants Marcel Lauzon Inc.,
Les Produits Forestiers D&G Ltée, Le Groupe Parent Ltée,
Mobilier Rustique (Beauce) Inc., North American Forest
Products Ltd., Parent-Violette Gestion Ltée, Scierie Alex-
andre Lemay & Fils, Inc. Marcel Lauzon Inc., Les Produits
Forestiers D&G Ltée, also represented by ANGELA M.
OLIVER.
JOANNE OSENDARP, McDermott Will & Emery, LLP,
Washington, DC for plaintiff-appellant Government of
Canada. Also represented by CONOR GILLIGAN, LYNN
KAMARCK, ALAN KASHDAN.
RICHARD WEINER, Sidley Austin LLP, Washington,
DC, for plaintiffs-appellants North American Forest Prod-
ucts Ltd., Parent-Violette Gestion Ltée, Le Groupe Parent
Ltée. Also represented by RAJIB PAL.
YOHAI BAISBURD, Cassidy Levy Kent (USA) LLP,
Washington, DC, for plaintiff-appellant Scierie Alexandre
Lemay & Fils Inc. Also represented by JAMES EDWARD
RANSDELL, IV, JONATHAN M. ZIELINSKI.
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COMMITTEE OVERSEEING ACTION FOR LUMBER v. US 3
NANCY NOONAN, ArentFox Schiff LLP, Washington,
DC, for plaintiff-appellant Government of Québec. Also
represented by MATTHEW CLARK, LEAH N. SCARPELLI.
JOHN ROBERT MAGNUS, TradeWins LLC, Washington,
DC, for plaintiff-appellant Mobilier Rustique (Beauce) Inc.
STEPHAN E. BECKER, Pillsbury Winthrop Shaw Pittman
LLP, Washington, DC, for plaintiff-appellant Government
of the Province of New Brunswick. Also represented by
AARON RIAVE HUTMAN, MOUSHAMI PRABHAKAR JOSHI.
ELIZABETH ANNE SPECK, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, for defendant-amicus curiae United
States. Also represented by BRIAN M. BOYNTON, CLAUDIA
BURKE, PATRICIA M. MCCARTHY; NIKKI KALBING, Office of
the Chief Counsel for Trade Enforcement & Compliance,
United States Department of Commerce, Washington, DC.
______________________
Before DYK, REYNA, and TARANTO, Circuit Judges.
TARANTO, Circuit Judge.
The United States Department of Commerce initiated
a countervailing duty investigation concerning imports of
certain softwood lumber products from Canada. Certain
Softwood Lumber Products from Canada: Initiation of
Countervailing Duty Investigation, 81 Fed. Reg. 93,897
(Dec. 22, 2016). Commerce individually investigated five
groups of companies (each group consisting of affiliated
companies) that were producers and/or exporters of the
covered products, and it ultimately issued a final determi-
nation to impose countervailing duties on the products of
those companies at company-specific rates ranging from
3.34% to 18.19%. Certain Softwood Lumber Products from
Canada: Final Affirmative Countervailing Duty
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4 COMMITTEE OVERSEEING ACTION FOR LUMBER v. US
Determination, and Final Negative Determination of Crit-
ical Circumstances, 82 Fed. Reg. 51,814, 51,815–16 (Nov.
8, 2017). Commerce also determined to impose counter-
vailing duties on products of all other producers and ex-
porters of the products at an “all-others” rate that initially
was 14.25%, id. at 51,816, and then was modified to be
14.19%, Certain Softwood Lumber Products from Canada:
Amended Final Affirmative Countervailing Duty Determi-
nation and Countervailing Duty Order, 83 Fed. Reg. 347,
349 (Jan. 3, 2018).
Starting within a few days of publication of the coun-
tervailing duty (CVD) order on January 3, 2018, and con-
tinuing until February 5, 2018, almost three dozen
Canadian companies that alleged they were subject to the
all-others rate asked Commerce to initiate an “expedited
review” under 19 C.F.R. § 351.214(k) (now § 351.214(l)) to
give them individually determined rates, and Commerce
initiated that review. Certain Softwood Lumber Products
from Canada: Initiation of Expedited Review of the Coun-
tervailing Duty Order, 83 Fed. Reg. 9,833 (Mar. 8, 2018).
Most of the requesters dropped out of the proceeding before
Commerce ruled. Ultimately, as relevant here, Commerce
awarded the individual requesters now before us (export-
ers of the covered products) reduced or de minimis CVD
rates. Certain Softwood Lumber Products from Canada:
Final Results of Countervailing Duty Expedited Review, 84
Fed. Reg. 32,121 (July 5, 2019).
A domestic trade group—the Committee Overseeing
Action for Lumber International Trade Investigations or
Negotiations (COALITION)—challenged the final results
of the expedited review in the Court of International Trade
(Trade Court). In particular, COALITION asked the Trade
Court to set aside the results on the ground that Commerce
lacked statutory authority to create the expedited-review
process. The Canadian exporters now before us and the
governments of Canada, Québec, and New Brunswick—col-
lectively, the Canadian parties—intervened in
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COMMITTEE OVERSEEING ACTION FOR LUMBER v. US 5
COALITION’s action, and some of those parties also filed
their own actions in the Trade Court, raising some issues
not relevant to this appeal. The Trade Court consolidated
the cases, with the (first-filed) COALITION action as the
lead case.
The Canadian parties and the United States argued
that Commerce had authority to adopt the expedited-re-
view procedures of 19 C.F.R. § 351.214(k) to give exporters
a chance to secure individual rates shortly after publication
of a CVD order, arguing for the existence of such authority
chiefly in various provisions of the Uruguay Round Agree-
ments Act (URAA), Pub. L. No. 103-465, 108 Stat. 4809
(1994). The Trade Court rejected those contentions and
held that the Secretary of Commerce lacked statutory au-
thority to adopt the procedures. We hold otherwise, con-
cluding that the Secretary had statutory authority to adopt
the expedited-review process as procedures for implement-
ing statutory provisions that authorize individualized de-
terminations in CVD proceedings. See 19 U.S.C. §§ 1667f-
1(e), 1677m, 3513(a)(2). We therefore reverse the judg-
ment of the Trade Court and remand for any proceedings
necessitated by our holding that statutory authorization
exists.
I
A
Pursuant to 19 U.S.C. §§ 2901–2906, the President ne-
gotiated eighteen international trade agreements referred
to as the Uruguay Round Agreements. At least as relevant
here, it is undisputed that those agreements are not “self-
executing,” see Medellin v. Texas, 552 U.S. 491, 516, 525–
27 (2008) (discussing notion of non-self-executing trea-
ties)—that is, they “have no legal effect in the United
States except insofar as they have been implemented into
United States law,” U.S. Amicus Br. at 3–4 (citing 19
U.S.C. § 2903(a)(1)). See COALITION’s Br. at 19 (“It is
well-established that [the Uruguay Round Agreements]
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6 COMMITTEE OVERSEEING ACTION FOR LUMBER v. US
are not self-executing.” (citing 19 U.S.C. § 3512(a))); Cana-
dian Parties’ Reply Br. at 5–6 (noting COALITION’s posi-
tion that the Uruguay Round Agreements “are not self-
executing” and stating: “No one has argued to the con-
trary.”). The President, following the fast-track legislative
procedure of 19 U.S.C. §§ 2903 and 2191–2193, submitted
legislation to Congress—along with a statement of admin-
istrative action proposed to implement the agreements,
H.R. Doc. No. 103-316, vol. 1 (1994), reprinted in 1994
U.S.C.C.A.N. 4040 (SAA)—that would approve the agree-
ments and create enforceable domestic law implementing
them to the extent specified in the legislation. The legisla-
tion enacted by Congress at the President’s request was the
URAA.
Section 101 of the URAA declares that Congress “ap-
proves” both the Uruguay Round Agreements and “the
statement of administrative action proposed to implement
the agreements that was submitted to the Congress.” 19
U.S.C. § 3511(a)(1)–(2) (codification of URAA § 101(a)(1)–
(2)). Section 102(a) of the URAA then describes the distinc-
tion and relationship between the Uruguay Round Agree-
ments and domestic law, providing that “[n]o provision of
any of the Uruguay Round Agreements, nor the application
of any such provision to any person or circumstance, that
is inconsistent with any law of the United States shall have
effect” and, in addition, that “[n]othing in this Act shall be
construed . . . to amend or modify any law of the United
States . . . unless specifically provided for in this Act.” Id.
§ 3512(a)(1)–(2) (codification of § 102(a)(1)–(2)). Section
102(d) of the URAA defines the role of the SAA, stating that
it “shall be regarded as an authoritative expression by the
United States concerning the interpretation and applica-
tion of the Uruguay Round Agreements and this Act in any
judicial proceeding in which a question arises concerning
such interpretation or application.” Id. § 3512(d) (codifica-
tion of § 102(d)).
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COMMITTEE OVERSEEING ACTION FOR LUMBER v. US 7
Section 103 of the URAA addresses the regulatory im-
plementation of the URAA. Subsection (a) provides that
“appropriate officers of the United States Government may
issue such regulations . . . as may be necessary to ensure
that any provision of this Act, or amendment made by this
Act . . . is appropriately implemented.” Id. § 3513(a)(2)
(codification of § 103(a)(2)). Subsection (b) provides that
“[a]ny interim regulation necessary or appropriate to carry
out any action proposed in the statement of administrative
action . . . to implement” any of three specified Uruguay
Round Agreements “shall be issued” by a certain time. Id.
§ 3513(b) (codification of § 103(b)).
One of the three just-mentioned URAA-approved Uru-
guay Round Agreements was the Agreement on Subsidies
and Countervailing Measures (SCM Agreement). Id.
§ 3511(d)(12). The URAA amended a number of provisions
of our domestic law to implement the SCM Agreement, in-
cluding provisions of 19 U.S.C. §§ 1677f-1 and 1677m that
concern, among other things, individual-company treat-
ment in CVD proceedings. The added or amended provi-
sions of those two sections are especially important for
present purposes.
First: In § 269 of the URAA—which amended § 777A of
the Tariff Act of 1930 (codified at 19 U.S.C. § 1677f-1) by
adding subsection (e)—Congress required that Commerce
“determine an individual countervailable subsidy rate for
each known exporter or producer of the subject merchan-
dise,” 19 U.S.C. § 1677f-1(e)(1), unless Commerce “deter-
mines that it is not practicable” to do so “because of the
large number of exporters or producers involved in the in-
vestigation or review, id. § 1677f-1(e)(2). 1 Congress then
1 The United States in this court and our precedent
identify certain pre-URAA regulations that permitted
Commerce to exclude individual companies from country-
wide rates. See, e.g., 19 C.F.R. § 355.38 (1981) (permitting
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8 COMMITTEE OVERSEEING ACTION FOR LUMBER v. US
identified several options (without declaring them exclu-
sive) for what Commerce “may” do if it makes the “not prac-
ticable” determination: It may “determine individual
countervailable subsidy rates for a reasonable number of
exporters or producers,” id. § 1677f-1(e)(2)(A), by examin-
ing “a sample of exporters or producers that [Commerce]
determines is statistically valid based on the information
available,” id. § 1677f-1(e)(2)(A)(i), or by examining “ex-
porters and producers accounting for the largest volume of
the subject merchandise from the exporting country that
[Commerce] determines can be reasonably examined,” id.
§ 1677f-1(e)(2)(A)(ii), and apply a blanket “all-others” rate
to those who were not individually examined, id.
§ 1671d(c)(1)(B), (c)(5)(A); and it may “determine a single
country-wide subsidy rate to be applied to all exporters and
producers,” id. §§ 1677f-1(e)(2)(B), 1671d(c)(5)(B).
Second: In § 231 of the URAA—which added § 782 to
the Tariff Act of 1930, codified at 19 U.S.C. § 1677m—Con-
gress further addressed individual investigations. Under
the new provision, in investigations or administrative re-
views in which Commerce has “limited the number of ex-
porters or producers examined, or determined a single
country-wide rate,” Commerce “shall establish an individ-
ual countervailable subsidy rate . . . for any exporter or pro-
ducer not initially selected for individual examination” that
submits certain information—as long as specified condi-
tions are met, including that determining such individual
rates will not be unduly burdensome and will not inhibit
Commerce to exclude “[a]ny firm which does not benefit
from a subsidy alleged” from a CVD order); MacLean-Fogg
Co. v. United States, 753 F.3d 1237, 1245 (Fed. Cir. 2014)
(describing history of countervailing duty statute and “all-
others” rate and discussing, e.g., 19 C.F.R. §§ 355.14 and
355.20 (1993)).
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COMMITTEE OVERSEEING ACTION FOR LUMBER v. US 9
timely completion of Commerce’s task. Id. § 1677m(a)(1)–
(2). 2
One provision, not of the URAA, but of the SCM Agree-
ment itself, has featured in the present dispute. Like the
above URAA provisions, it addresses individualized deter-
minations in countervailing duty proceedings. Article 19.3
of the SCM Agreement provides, in pertinent part:
Any exporter whose exports are subject to a defini-
tive countervailing duty but who was not actually
investigated for reasons other than a refusal to co-
operate, shall be entitled to an expedited review in
order that the investigating authorities promptly
establish an individual countervailing duty rate for
that exporter.
Marrakesh Agreement Establishing the World Trade Or-
ganization, Apr. 15, 1994, 1869 U.N.T.S. 14, Annex 1A,
SCM Agreement, art. 19.3. The SAA describes Article 19.3
as providing that “any exporter” that “was not actually in-
vestigated for reasons other than a refusal to cooperate”
and is subject to a CVD order “shall be entitled to an expe-
dited review to establish an individual CVD rate for that
exporter.” SAA at 941, 1994 U.S.C.C.A.N. at 4250.
B
The URAA was enacted on December 8, 1994. 108 Stat.
at 4809. On September 12, 1995, the President issued a
2 The requirements of § 1677m(a) quoted in text
were part of the 1994 enactment, and they remain so,
though the provision has been amended since then in ways
not significant to the present appeal. For relevant com-
ments on §§ 231 and 269 of the URAA, see SAA at 872–73,
1994 U.S.C.C.A.N. at 4200–01; H.R. Rep. No. 103-826, pt.
1, at 102–03, 118–20 (1994); S. Rep. No. 103-412 at 83–84,
100 (1994).
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10 COMMITTEE OVERSEEING ACTION FOR LUMBER v. US
proclamation declaring that “the Uruguay Round Agree-
ments . . . entered into force for the United States on Jan-
uary 1, 1995.” Proclamation No. 6821, 60 Fed. Reg. 47,663,
47,663 (Sept. 12, 1995), reprinted in 109 Stat. 1813 (1995);
see 19 U.S.C. § 3511(b) (giving the President authority to
determine the date on which the agreements enter into
force).
Months before the entry-into-force date, Commerce, on
May 11, 1995, had issued interim regulations, none of
which addressed expedited CVD reviews. See Antidump-
ing and Countervailing Duties, 60 Fed. Reg. 25,130,
25,130–33 (May 11, 1995). On February 27, 1996, Com-
merce issued a notice of proposed rulemaking, building on
the interim regulations. Antidumping Duties; Counter-
vailing Duties, 61 Fed. Reg. 7,308, 7,317–19 (Feb. 27,
1996). “To implement Article 19.3 of the SCM Agreement,”
Commerce proposed adding 19 C.F.R. § 351.214(k) to “ex-
pand[] the new shipper review procedure to cover exporters
that were not individually examined in a countervailing
duty investigation where the Secretary limited the investi-
gation under . . . the [URAA].” Id. at 7,318.
On May 19, 1997, Commerce published the final regu-
lations for implementing the URAA, which included 19
C.F.R. § 351.214(k). 3 Antidumping Duties; Countervailing
Duties, 62 Fed. Reg. 27,296, 27,321–22, 27,396 (May 19,
1997). Section 351.214(k) contains, inter alia, “rules re-
garding requests for expedited reviews by noninvestigated
exporters in certain countervailing duty proceedings and
3 On September 20, 2021, § 351.214(k) was redesig-
nated as § 315.214(l), with no change that is material here.
Regulations to Improve Administration and Enforcement
of Antidumping and Countervailing Duty Laws, 86 Fed.
Reg. 52,300, 52,373 (Sept. 20, 2021). For consistency with
the briefs and prior proceedings in this case, we generally
refer to the regulation as § 351.214(k).
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COMMITTEE OVERSEEING ACTION FOR LUMBER v. US 11
procedures for conducting such reviews.” Id. at 27,394.
Specifically, § 351.214(k) describes a procedure for “[e]xpe-
dited reviews in countervailing duty proceedings for nonin-
vestigated exporters”: If Commerce “limited the number of
exporters or producers to be individually examined” in a
CVD investigation, then, within thirty days of the counter-
vailing duty order’s publication in the Federal Register, “an
exporter that the Secretary did not select for individual ex-
amination or that the Secretary did not accept as a volun-
tary respondent may request” an expedited review of the
CVD order so that Commerce may establish an individual
CVD rate for the requesting company. 19 C.F.R.
§ 351.214(k)(1) (now § 351.214(l)(1)). If Commerce deter-
mines that the company’s individual rate is de minimis,
then Commerce may exclude that company from the CVD
order. Id. § 351.214(k)(3)(iv) (now § 351.214(l)(3)(iii)).
C
As indicated above, Commerce conducted a CVD inves-
tigation, starting in late 2016, that led to a final determi-
nation in late 2017 calculating individual rates for five
investigated companies and an all-others rate of 14.25%.
Certain Softwood Lumber Products from Canada: Final Af-
firmative Countervailing Duty Determination, and Final
Negative Determination of Critical Circumstances, 82 Fed.
Reg. at 51,815–16. Commerce amended the all-others rate
to 14.19% for non-investigated companies on January 3,
2018. Certain Softwood Lumber Products from Canada:
Amended Final Affirmative Countervailing Duty Determi-
nation and Countervailing Duty Order, 83 Fed. Reg. at 348.
Starting a few days after January 3, 2018, Commerce re-
ceived numerous requests from Canadian exporters of the
covered products asking Commerce to initiate an expedited
review to provide the requesters individualized rate deter-
minations, and Commerce initiated the review on March 8,
2018. Certain Softwood Lumber Products from Canada:
Initiation of Expedited Review of the Countervailing Duty
Order, 83 Fed. Reg. at 9,833. On July 5, 2019, Commerce
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12 COMMITTEE OVERSEEING ACTION FOR LUMBER v. US
issued the final results of its expedited review, calculating
greatly reduced or de minimis rates for each of the newly
investigated Canadian companies that remained in the
proceeding by the time of decision. Certain Softwood Lum-
ber Products from Canada: Final Results of Countervailing
Duty Expedited Review, 84 Fed. Reg. at 32,122. In the sup-
porting issues-and-decision memorandum, dated June 28,
2019, Commerce concluded that it had authority to prom-
ulgate 19 C.F.R. § 351.214(k) under URAA § 103(a), which
it interpreted as authorizing promulgation of regulations
to implement obligations under the SCM Agreement, in-
cluding Article 19.3, even without a specific URAA provi-
sion addressed to the particular subject. J.A. 1121–24.
On July 15, 2019, COALITION filed an action in the
Trade Court challenging the final results on the ground
that Commerce lacked statutory authority to conduct expe-
dited reviews under 19 C.F.R. § 351.214(k). As noted
above, several Canadian exporters, plus the Canadian gov-
ernmental entities (Canada, Québec, and New Brunswick),
then either intervened in COALITION’s action or filed
their own actions challenging the final results on grounds
irrelevant to this appeal or did both. The Trade Court con-
solidated all of the actions. And after denying a prelimi-
nary injunction sought by COALITION, Committee
Overseeing Action for Lumber International Trade Investi-
gations or Negotiations v. United States, 393 F. Supp. 3d
1271 (Ct. Int’l Trade 2019) (Coalition I), the Trade Court
considered the government’s motion to dismiss for lack of
jurisdiction and concluded that it had jurisdiction under
the residual jurisdictional grant made in 28 U.S.C.
§ 1581(i)(4). Committee Overseeing Action for Lumber In-
ternational Trade Investigations or Negotiations v. United
States, 413 F. Supp. 3d 1334, 1341, 1343–47 (Ct. Int’l Trade
2019) (Coalition II).
On December 19, 2019, COALITION filed a motion for
judgment on the administrative record under Trade Court
Rule 56.2, arguing that Commerce lacked authority to
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COMMITTEE OVERSEEING ACTION FOR LUMBER v. US 13
promulgate § 351.214(k) under the URAA. Commerce, as
well as the Canadian governmental entities and the Cana-
dian exporters, opposed the motion. The Trade Court
agreed with COALITION’s argument that “Commerce ex-
ceeded its authority to the extent that it promulgated 19
C.F.R. § 351.214(k) pursuant to URAA § 103(a).” Commit-
tee Overseeing Action for Lumber International Trade In-
vestigations or Negotiations v. United States, 483 F. Supp.
3d 1253, 1263–64 (Ct. Int’l Trade 2020) (Coalition III). The
Trade Court also concluded that URAA § 103(b)—which
authorizes Commerce to issue interim regulations neces-
sary to “to carry out any action proposed in” the SAA, 19
U.S.C. § 3513(b)—did not authorize the regulation because
there was no “action proposed” in the SAA to implement
expedited CVD reviews. Coalition III, 483 F. Supp. 3d at
1267. The Trade Court decided, however, that it should
remand the matter for Commerce to consider whether sev-
eral particular statutory bases supported the regulation.
Id. at 1271–73. One such basis, invoked by Canada and
Québec, was 19 U.S.C. § 1677f-1, as implemented by Com-
merce under URAA § 103(a), 19 U.S.C. § 3513(a). See Co-
alition III, 483 F. Supp. 3d at 1272; see Joint Brief of
Defendant-Intervenors Government of Canada and Gov-
ernment of Québec in Opposition to Plaintiff’s Motion for
Judgment on the Agency Record at 15–18, 22–29, Coalition
III, 483 F. Supp. 3d 1253 (No. 19-00122), ECF No. 120.
On remand, Commerce considered the identified
sources of potential statutory authority, including 19
U.S.C. § 1677f-1(e), but it concluded without meaningful
analysis that this provision (and others) did not provide au-
thority to promulgate 19 C.F.R. § 351.214(k). J.A. 565–67.
Returning to the Trade Court, the United States, the Ca-
nadian parties, and COALITION filed comments on Com-
merce’s remand decision. The Trade Court accepted
Commerce’s determinations concerning the lack of statu-
tory authority to promulgate 19 C.F.R. § 351.214(k) outside
URAA § 103(a), but in doing so, it stated that the Canadian
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14 COMMITTEE OVERSEEING ACTION FOR LUMBER v. US
governmental parties had not renewed their reliance on 19
U.S.C. § 1677f-1, and so the Trade Court did not substan-
tively address that possible basis for the regulation. Com-
mittee Overseeing Action for Lumber International Trade
Investigations or Negotiations v. United States, 535 F.
Supp. 3d 1336, 1348–52 & n.15 (Ct. Int’l Trade 2021) (Co-
alition IV). The Canadian entities in fact argued that Com-
merce had only perfunctorily and insufficiently addressed
that issue and others, and because Commerce had “not en-
gag[ed] meaningfully with each of the alternative bases,”
they referred the Trade Court to the earlier submissions on
§ 1677f-1 and other issues. Comments on Remand Results
on Behalf of Consolidated Defendant-Intervenors at 1–2,
Coalition IV, 535 F. Supp. 3d 1336 (No. 19-00122), ECF No.
183.
Because the Trade Court already had found statutory
authority otherwise missing, it held 19 C.F.R. § 351.214(k)
unauthorized by law, and it vacated the regulation as well
as the final results of expedited review at issue (the vacatur
applying only prospectively). Coalition IV, 535 F. Supp. 3d
at 1355–63. It entered judgment on August 18, 2021.
The Canadian parties timely appealed within the per-
mitted sixty days of the Trade Court’s final judgment. Fed.
R. App. P. 4(a)(1)(B). The United States did not file a notice
of appeal. On January 19, 2022, it filed a letter indicating
that it would not be participating in the appeal, and it filed
no brief in the briefing leading up to oral argument. We
have jurisdiction under 28 U.S.C. § 1295(a)(5). 4
4 We see no reversible error in the Trade Court’s con-
clusion that it had jurisdiction under 28 U.S.C. § 1581(i)(4).
See Coalition II, 413 F. Supp. 3d at 1343–47. For an action
within § 1581(i)(4), the standard of review is “provided in
[5 U.S.C. § 706].” 28 U.S.C. § 2640(e); see Coalition III, 483
F. Supp. 3d at 1262.
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COMMITTEE OVERSEEING ACTION FOR LUMBER v. US 15
II
We have before us and we answer only the question of
whether there is statutory authority for § 351.214(k) (now
§ 314.214(l)). See 5 U.S.C. § 706(2)(C). That question pre-
sents an issue of law, decided de novo, requiring no exercise
of discretion that belongs to the agency under Securities
and Exchange Commission v. Chenery Corp., 318 U.S. 80,
88 (1943), and Securities and Exchange Commission v.
Chenery Corp., 332 U.S. 194, 196–97 (1947). The challenge
to statutory authority is made to § 351.214(k) as a whole,
with no components of that regulation singled out for sep-
arate challenge.
After hearing oral argument, we solicited the views of
the United States as amicus. On February 7, 2023, the
government filed its amicus brief, arguing that
§ 351.214(k) “implements the URAA’s provisions establish-
ing general procedures for imposing countervailing duties,”
specifically relying (as the Canadian parties had in the
Trade Court) on the individualized-determination provi-
sions of 19 U.S.C. § 1677f-1(e), which was added to Title 19
by the URAA and therefore comes within the regulatory-
implementation authority stated in URAA § 103(a), 19
U.S.C. § 3513(a). U.S. Amicus Br. at 4–6, 17–18.
COALITION, the appellee here, does not object to our con-
sideration of this argued ground of decision on its merits.
We agree that statutory authority for the expedited-re-
view process is properly found in the URAA’s enactment of
§ 1677f-1(e) to favor individual-company determinations
and the URAA’s grant of regulatory-implementation power
to Commerce in § 3513(a). Section 1677f-1(e) declares a
“[g]eneral rule” that Commerce “shall determine an indi-
vidual countervailable subsidy rate for each known ex-
porter or producer of the subject merchandise.” 19 U.S.C.
§ 1677f-1(e)(1). It then allows Commerce to depart from
that rule if the large number of exporters or producers
makes applying the rule “not practicable,” and it states
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16 COMMITTEE OVERSEEING ACTION FOR LUMBER v. US
that, in such a circumstance, Commerce “may . . . (A) de-
termine individual countervailable subsidy rates for a rea-
sonable number of exporters or producers” (by use of
statistically valid sampling or identifying the largest vol-
ume that can reasonably be examined) or “(B) determine a
single country-wide subsidy rate” for all exporters and pro-
ducers. Id. § 1677f-1(e)(2). Commerce’s regulation, 19
C.F.R. § 351.214(k), provides one procedure for giving ef-
fect to the primary policy of providing individual-company
rate determinations.
This procedure fits within the URAA’s grant of power
to Commerce to adopt “such regulations as may be neces-
sary to ensure that any provision of [the URAA], or amend-
ment made by [the URAA], that takes effect on the date
any of the Uruguay Round Agreements enters into force
with respect to the United States is appropriately imple-
mented on such date.” URAA § 103(a), 19 U.S.C.
§ 3513(a)(2). The SAA itself makes the connection between
the expedited-review process at issue and § 1677f-1(e) as
added by the amendment to § 777A of the Tariff Act made
by the URAA. Under a heading, “Company-Specific Sub-
sidy Rates and Expedited Reviews,” the SAA states: “Arti-
cle 19.3 of the Subsidies Agreement provides that any
exporter whose exports are subject to a CVD order, but
which was not actually investigated for reasons other than
a refusal to cooperate, shall be entitled to an expedited re-
view to establish an individual CVD rate for that exporter.”
SAA at 941, 1994 U.S.C.C.A.N. at 4250. It immediately
adds: “Several changes must be made to the [Tariff] Act to
implement the requirements of Article 19.3.” SAA at 941,
1994 U.S.C.C.A.N. at 4251. Two brief subsections follow
that give specifics, the first of which, “Individual Counter-
vailing Duty Rates,” explains that the URAA “eliminates
the presumption in favor of a single country-wide CVD rate
and amends section 777A of the Act to establish a general
rule in favor of individual CVD rates for each exporter or
producer individually investigated.” Id. In that way, the
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COMMITTEE OVERSEEING ACTION FOR LUMBER v. US 17
SAA links expedited reviews to § 1677f-1(e). 5 And Com-
merce, in proposing § 351.214(k), likewise linked Article
19.3 to § 1677f-1(e). See Antidumping Duties; Countervail-
ing Duties, 61 Fed. Reg. at 7,318–19.
It is also evident as a logical matter why an expedited-
review process “may be necessary to ensure that” the indi-
vidualized-determination preference of § 1677f-1(e) is “ap-
propriately implemented.” 19 U.S.C. § 3513(a)(2). The
regulation provides an immediate post-CVD-order process
for exporters to use to secure individual determinations,
with the just-announced all-others rate giving exporters a
concrete basis for deciding whether the costs of seeking
their own rates are worth incurring. Some exporters may
postpone a decision whether to request an individual rate
until after the CVD order and then decide not to make such
a request. The availability of this process thus may reduce
the number of exporters requesting individual determina-
tions from what that number would be if all requests for
such determinations had to be made before issuance of the
CVD order. The net result may enhance the efficiency of
the agency process as a whole, including by making it more
practicable for Commerce (with fewer requesters) to make
individual determinations in the proceeding before pub-
lishing the CVD order.
COALITION makes only one argument against this ba-
sis of statutory authority. It argues that § 1677f-1(e) limits
Commerce’s examination options to just three possibilities:
examine all known exporters or producers, 19 U.S.C.
§ 1677f-1(e)(1); examine a “statistically valid” sample of ex-
porters or producers, id. § 1677f-1(e)(2)(A)(i); or examine
“exporters and producers accounting for the largest volume
of the subject merchandise” that “can be reasonably
5 The SAA mistakenly attributes the § 777A amend-
ment to URAA § 265; that amendment was made in URAA
§ 269. See Coalition III, 483 F. Supp. 3d at 1258 n.4.
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18 COMMITTEE OVERSEEING ACTION FOR LUMBER v. US
examined,” id. § 1677f-1(e)(2)(A)(ii). According to
COALITION, the three options are the only permissible
ones, and that exclusivity precludes Commerce from indi-
vidually investigating companies based on their asking for
individual determinations. COALITION’s Supp. Br. at 13–
14.
We reject that argument. Section 1677f-1(e), in intro-
ducing options for Commerce if making individual determi-
nations for all producers and exporters is not practicable,
uses the word “may.” 19 U.S.C. § 1677f-1(e)(2). The per-
missive “may” by itself does not exclude other options, and
nothing else makes the list that follows one that defines all
permissible options. Moreover, COALITION’s particular
contention that § 1677f-1(e) does not give Commerce the
option of providing individual determinations based on re-
quests from exporters or producers is not just unsupported
but, in fact, runs counter to § 1677m—which sometimes re-
quires such action by Commerce. That provision, added by
the URAA, declares that, subject to certain conditions,
Commerce “shall establish an individual countervailable
subsidy rate . . . for any exporter or producer not initially
selected for individual examination . . . who submits to
[Commerce] the information requested from exporters or
producers selected for examination . . . by the date speci-
fied” for those selected exporters and producers. Id.
§ 1677m(a)(1). The SAA explained: “Section 231 of [the bill
that became URAA] adds section 782(a) to the [Tariff] Act
[i.e., § 1677m(a)] which provides that, in cases where Com-
merce has limited its examination to selected exporters and
producers, it nevertheless will calculate an individual
dumping margin for any exporter or producer not selected
for examination that provides the necessary information on
a timely basis . . . .” SAA at 873, 1994 U.S.C.C.A.N. at
4201. COALITION’s interpretation of § 1677f-1(e) does not
fit the simultaneously enacted § 1677m(a).
Of course, the expedited reviews under § 351.214(k) do
not occur during a CVD investigation, but only after
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COMMITTEE OVERSEEING ACTION FOR LUMBER v. US 19
publication of a CVD order—with requests due within 30
days. But the Trade Court nowhere explained why this
timing distinction precludes reliance on § 1677f-1(e) as au-
thority for the expedited-review regulation. And in this
court COALITION has not argued that the timing distinc-
tion precludes such reliance.
III
For the foregoing reasons, we reverse the Trade Court’s
decision and hold that Commerce had statutory authority
to adopt the expedited review procedures. We remand for
such further proceedings as required in the consolidated
cases as a result of this holding.
The parties shall bear their own costs.
REVERSED AND REMANDED