Law360 — The U.S. Court of International Trade on Wednesday ordered the U.S. Department of Commerce to rethink its conclusion that certain cedar shakes and shingles made by Canada producers are subject to countermeasure tariffs on Canadian softwood lumber imports, saying that the determination is unlawful.

Judge Jennifer Choe-Groves said that when the Commerce Department makes a determination on whether an importer’s product is included in the scope of an anti-dumping or countervailing duty order, the department must consider previous duty determinations made by Commerce and the U.S. International Trade Commission, as well as past scope rulings.

“Antidumping and countervailing duty orders should not be interpreted in isolation bereft of any consideration of how an order’s scope language is used in the relevant industry,” Judge Choe-Groves said.

The Shake and Shingle Alliance, a group of Canadian shakes and shingles producers and exporters, initially sued the U.S. government in November 2018, challenging Commerce’s determination that certain cedar shakes and shingles made by its members were subject to new anti-dumping and countervailing duties on Canadian softwood lumber, according to its complaint.

Shortly after the Canadian producers filed suit, Canada joined the alliance in arguing that Commerce should have taken into account previous investigations into Canadian lumber when reaching its scope decision on the inclusion of certain cedar shakes and shingles in new tariff orders, according to an August 2018 brief by the Canadian government.

Canada had vowed to fight the new tariffs on Canadian softwood lumber under the North American Free Trade Agreement and World Trade Organization in early 2018, after the ITC unanimously approved the tariffs, handing a victory to U.S. lumber producers.

The alliance’s attorney, Heather Jacobson, said the CIT’s clarification on whether Commerce must consider past shakes and shingles exclusion orders when deciding future orders will impact the entire Canadian shakes and shingles industry by reducing the chances of inconsistencies in scope orders.

Counsel for Canada declined to comment.

Commerce did not respond to an email request for comment on Wednesday about the significance of the CIT’s ruling.

The alliance is represented by Heather L. Jacobson of Junker & Nakachi PC.

Canada is represented by Eric S. Parnes, Joanne E. Osendarp, Stephen R. Halpin III and Daniel M. Witkowski of Hughes Hubbard & Reed LLP.

The U.S. federal government is represented by Stephen C. Tosini, Joseph H. Hunt, Jeanne E. Davidson and Patricia M. McCarthy of the U.S. Department of Justice’s Civil Division and Mercedes Morno of Commerce.

The case is Shake and Shingle Alliance v. U.S., case number 1:18-cv-00228, in the U.S. Court of International Trade.

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