Lumber Trade Committee Opposes Stay of Own Case While CAFC Considers Cohen's d Test

A defendant-intervenor in an exporter’s case challenging the results of a sunset review of the antidumping duty order on softwood lumber from Canada on June 6 opposed a motion to stay proceedings while a similar case winds its way through the appeals process. It argued that while the case on appeal deals (again) (see 2107150032) with the proper use of the “Cohen’s d test,” (see 2401110037) the case is not applicable in its own litigation (Resolute FP Canada v. U.S., CIT # 23-00095).

Defendant-intervenor and petitioner Committee Overseeing Action for Lumber International Trade Investigations or Negotiations said in its motion that the case on appeal, Stupp Corp. v. U.S., doesn’t involve a sunset review, whereas its own case does (see 2311080026).

In the case before CIT, lumber exporter Resolute FP Canada is challenging the Commerce Department’s finding in a sunset review that dumping was likely to continue if antidumping duties on its products were lifted. The exporter claims that the conclusion was inaccurate due to the department’s use of the controversial Cohen’s d test. It asked that the proceedings be stayed on May 16 while the U.S. Court of Appeals for the Federal Circuit considers Stupp.

Commerce is allowed to consider “other factors” to determine the likelihood of continued dumping in sunset reviews if “good cause is shown,” petitioner Committee Overseeing Action said. Further, sunset reviews usually rely on dumping margins calculated in prior determinations, so Commerce “did not, and is not required to calculate dumping margins” for them, it said. It said the department only does so under a “most extraordinary circumstances” showing.

A stay will therefore not conserve judicial resources, it said.