Stay in AD Case Could Result in 'Costly' Reviews, Mexican Exporter Says in Motion Opposing Stay

The Court of International Trade should deny the U.S.'s stay motion in a case over an antidumping duty investigation since the stay risks harming Mexican exporter Building Systems de Mexico, the company argued in a May 16 reply brief. Seeing as the appeal would have the plaintiff wait until another case is ruled on at the U.S. Court of Appeals for the Federal Circuit, staying proceedings in the present case could risk the imposition of an antidumping duty order, requiring BSM's payment of cash deposits and participation in "costly" administrative reviews, the brief said (Building Systems de Mexico v. United States, CIT #20-00069).

BSM's case concerns the less-than-fair-value investigation into fabricated structural steel from Mexico. In March, Judge Claire Kelly remanded several elements of the Commerce Department's final determination including its decision to use mandatory respondent Corey S.A.'s home market sales to explain why the agency rejected BSM's data for insufficient volume but relied on Corey's when it had less data (see 2203310028). The U.S. then requested a stay until the Federal Circuit hears an appeal of the International Trade Commission's negative injury determination as it applies to fabricated structural steel from China.

BSM now argues that this stay risks harming it and that granting a stay now would fly in the face of the court's earlier decision. Previously, the court denied a stay request from defendant-intervenor the Full Member Subgroup of the American Institute of Steel Construction, which offered to halt proceedings until after a NAFTA binational panel's review of the ITC's negative injury finding for fabricated structural steel imports from Mexico. The court said that the defendant-intervenor failed to make a showing of hardship. Even though the U.S. argues that the facts have changed and that a stay now would be of a more limited duration, "the Government has not shown that any of these material facts regarding the harms faced by BSM and its interest in prompt resolution of this litigation have changed," the brief said.

Further, the plaintiff argued that the stay should be denied since granting it would subject the exporter to harm. "BSM still has a right to obtain judicial review of Commerce’s final determination before an antidumping duty order is issued, and BSM still has a strong interest in obtaining a lower margin before an antidumping duty order might be issued in connection with a remand of the ITC’s injury determination," the brief said.

"BSM seeks to avoid having to pay cash deposits pursuant to a potential antidumping duty order at a rate that BSM considers unlawful. Moreover, if an antidumping duty order is eventually issued, unless this litigation is completed within a year of that order, BSM is at risk of having to participate in costly administrative reviews despite BSM’s legitimate arguments that Commerce should have calculated a zero or de minimis margin for BSM, which would require BSM’s exclusion from the order."