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Changed Circumstances Review Is Moot and Outside ITC's Authority, US Steelmakers Argue

A complaint by Turkish exporter Eregli Demir ve Celik Fabrikalari (Erdemir) that challenged the International Trade Commission's decision not to institute a changed circumstances review of the antidumping duty order on hot-rolled steel flat products from Turkey should be dismissed because Erdemir's claim was rendered moot when the ITC conducted a full sunset review, the ITC said in an Aug. 31 brief at the Court of International Trade (Ereğli Demir ve Çelik Fabrikalari v. U.S. International Trade Commission, CIT # 22-00350).

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The ITC argued that Erdemir sought "some sort of extraordinary, retroactive, CCR" by rewriting the record. In its July 28 brief (see 2307310051), Erdemir erroneously asserted that it filed a proper request for a CCR in May 2020, the ITC said.

However, any requests filed prior to the U.S. Court of Appeals for the Federal Circuit’s dismissal of the appeal on June 4, 2021, would have been premature. The Commerce remand wasn't yet final at the time Erdemir submitted the 2020 letters to the commission, but they failed to lay out circumstances “sufficient to warrant the institution of a review investigation by the Commission," the ITC said. In an attempt to convince the court that the ITC acted inconsistently with its regulation, Erdemir tried to re-label its May 2020 letter as an “initial CCR request.”

Only in September 2021 did Erdemir file a CCR request, but by then the ITC had instituted a five-year review of the orders. The timeline doesn't support Erdemir’s suggestion that Congress wanted the ITC to conduct premature CCRs in order to assure that parties could have a CCR before a five-year review was initiated, the ITC argued.

Erdemir also misunderstands the law, the ITC said. In the five-year review, Erdemir actually obtained the same review it would have had if the commission had granted its CCR request. There, it received the benefit of the revised de minimis dumping margin it sought, further undermining its argument.

Alternatively, Erdemir's complaint failed to state a claim for which relief could be granted because the ITC's authority doesn't allow it to conduct a retroactive reexamination of the original AD investigation. Erdemir cites nothing to support its argument that "a backward-looking correction or change" to an original determination is allowable anywhere under the statute, the ITC said.

The brief comes in response to Erdemir's opposition to the dismissal request and in support of two previous motions to dismiss, one from the ITC itself and another from five U.S. steel companies, led by Cleveland-Cliffs (see 2305190068). Those five steelmakers submitted a similar brief, also on Aug. 31, which agreed with and supported the ITC's arguments.