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Trade Court Says AD Respondent Has 'Piggyback Standing' to Intervene in AD Review Case

Mandatory antidumping respondent Dong-A Steel Co. can intervene in a challenge to an antidumping review brought by the review's other mandatory respondent HiSteel Co., the Court of International Trade ruled in a Sept. 22 opinion. Judge Gary Katzmann said that Dong-A has "piggyback standing" to intervene since it and HiSteel seek the same relief, and that the exporter can intervene "as of right" since it is "an interested party who was a party to the proceeding."

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HiSteel launched its case to contest Commerce's final results in an administrative review of the antidumping duty order on heavy walled rectangular welded carbon steel pipes and tubes from South Korea. In the review, to detect masked dumping, Commerce used Cohen's d test as part of its differential pricing analysis. The agency found that masked dumping was occurring, then decided to use the average-to-transaction method to calculate the dumping margin. HiSteel took to the trade court to argue this was illegal (see 2206080062). Dong-A, a respondent in the review, then sought to intervene in the matter.

The U.S. opposed the motion, arguing that Dong-A does not have standing to intervene in the case (see 2207290061). The use of the differential pricing analysis and decision whether to use the average-to-transaction method to calculate HiSteel's dumping margin had no effect on Dong-A's margin, the government said. The U.S. argued that Dong-A has not made the "tripart showing for standing," which requires the company to establish injury in fact, causation and redressability, since it will not be injured if HiSteel's margin is upheld.

Looking to precedent established at the U.S. Court of Appeals for the Federal Circuit, Katzmann said that a proposed intervenor can "piggyback" on an existing party's standing where it seeks the same relief and nothing broader or different. Since Dong-A and HiSteel seek the same relief -- the disregard of the Cohen's d test -- Dong-A has piggyback standing to intervene in the case, the judge ruled.

The government further argued that Dong-A has not met the right to intervene as of right under court rules 24(a)(1) since it has not shown it would be adversely affected by a decision in the case. The exporter countered that the U.S. "improperly asks this court to apply the standards for permissive intervention under 28 U.S.C. § 2631(j)(1)." Katzmann again sided with Dong-A, finding that CIT Rule 24(a)(1) permits the respondent's intervention. The court found that Section 2631(j)(1)'s requirement that a party be adversely affected does not extend to intervention as a matter of right. With that established, Dong-A only needed to show that it is an interested party who was a party to the proceeding.

"In sum, because the underlying litigation consists of a civil action commenced under section 516A of the Tariff Act of 1930, and because [Dong-A] is 'an interested party who was a party to the proceeding[s],' [Dong-A] is entitled to intervene as of right by operation of 28 U.S.C. § 2631(j)(1)(B) and USCIT Rule 24(a)(1)," the judge said.

(HiSteel Co. v. United States, Slip Op. 22-113, CIT #22-00142, dated 09/22/22, Judge Gary Katzmann. Attorneys: Jeffrey Winton of Winton & Chapman for plaintiff HiSteel and plaintiff-intervenor Dong-A; Kara Westercamp for defendant U.S. government; Robert DeFrancesco of Wiley Rein for defendant-intervenor Nucor Tubular Products)