Exporters Argue Against Stay Bid Pending Potential Appeal of CIT Decision on Use of 'd' Test
The Court of International Trade shouldn't grant a stay in an antidumping case pending the expiration of the deadline to appeal the court's recent decision in another case that deals with the Commerce Department's use of the Cohen's d test to root out "masked" dumping, two exporters argued March 20. HiSteel Co. and Dong-A Steel Co. said the court shouldn't grant the stay because their action doesn't deal with the same issue as the recent decision in Stupp Corp. v. U.S.
Commerce's application of the test in the HiSteel and Dong-A Steel case didn’t “address the “same” academic materials or “rely” on the same “justifications” entered on the record in Stupp, the companies said (HiSteel Co. v. United States, CIT # 22-00142). Although the exporters “recognize that Commerce may very well rely on the same justifications set forth in its remand redetermination in Stupp to support its use of the differential pricing analysis on remand in this case," the brief said “it is only at that time that this Court’s decision in Stupp IV would have any bearing on this appeal.”
And even then, the Stupp case “would not be binding precedent,” the companies said. “Nevertheless, at this moment, Defendant-Intervenor’s Motion is premature and fails to identify a case that addresses 'identical concerns' to this appeal."
Commerce originally defended its use of the d test with publicly available academic information. The test was then called into question by the U.S. Court of Appeals for the Federal Circuit over concerns that the agency did not satisfy statistical requirements needed to properly run the test. In response, Commerce added new materials in the record and made new justifications for its use of the test, leading the trade court to uphold the agency's new explanations (see 2302270049).