CIT Rejects Bid for Stay in Case Over Less-Than-Fair-Value Investigation, Cites Harm to Exporter

The Court of International Trade in a May 26 order denied the U.S.'s stay bid in an antidumping case, citing harm to plaintiff and exporter Building Systems de Mexico (BSM) that could result from the stay. Judge Claire Kelly ruled that "a stay is not appropriate in this case," given that BSM has already successfully challenged four bases for the Commerce Department's finding of dumping and a stay "would significantly devalue" the company's investment in the challenge.

BSM's case concerns the less-than-fair-value investigation into fabricated structural steel from Mexico. In March, 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.

Given the remand order in the case, Kelly ruled "it is not outside of the realm of possibility" that BSM could get a zero or de minimis rate and be excluded from the order or receive a lower rate. Thus, the judge said she didn't base her decision on speculative harm that could come from a stay but rather the real harm that would come from the antidumping duty order being issued. "BSM would have to pay cash deposits at the rate currently established by Commerce, which has already been determined to be unsupported by substantial evidence," the judge said. "BSM would likely have to participate in an administrative review."

Kelly differentiated BSM's case with three cited by the U.S. in its bid to affirm the stay request. In one, Diamond Sawblades v. U.S., the plaintiff wanted a stay pending the appeal of a negative ITC finding. Ultimately, the ITC sustained the injury finding, leading to an AD order. The plaintiff then sought to lift the stay to sue for higher rates. The court denied the motion, finding the current challenges to the dumping margins are over the AD rate, but the suit now at the Federal Circuit will find whether the duties should be paid at all.

"Thus, the Court in Diamond Sawblades acknowledged the significance of a challenge that might defeat an order altogether, which is exactly what BSM seeks to do in this case," Kelly said. "Diamond Sawblades illustrates the risk to BSM. If the ITC ultimately reverses itself, and an antidumping duty order issues, BSM will be required to pay cash deposits and possibly submit to an administrative review, all while waiting to conclude this litigation in which it seeks to obviate the need for compliance with any such order."

(Building Systems de Mexico v. U.S., Slip Op. 22-56, CIT #20-00069, dated 05/26/22, Judge Claire Kelly. Attorneys: Matthew Nicely of Akin Gump for plaintiff BSM; Franklin White for defendant U.S. government)