In 2 Opinions, Judge Reif Dismisses 2 of a Turkish Steel Exporter’s 3 Cases

Colakoglu, Turkey’s largest exporter, was excluded from the order’s original parallel countervailing duty investigation, resulting in a finding of negligibility for all Turkish subsidized imports (see 2212270053). However, an error saw Colakoglu included in the antidumping review. The exporter took its AD rate to court and had it reversed. Soon after, the International Trade Commission began its sunset review. Erdemir then filed its own suit seeking a changed circumstances review, pointing out that if Colakoglu had been excluded from the original antidumping investigation, as it should have been, Turkish imports would have been found to be negligible there, too.

Erdemir actually filed three cases. The first argued that the ITC failed to “reconsider and correct errors in the AD negligibility determination in the original investigation.” The second claimed that the ITC’s refusal to conduct a changed circumstances review was illegal; the third challenges the ITC’s finding in its sunset review that dumping would continue as a result of removal of the order.

Reif dismissed two: the case involving the ITC’s failure to reconsider its initial negligibility decision and the case contesting the ITC’s refusal to conduct a changed circumstances review. The former, he said, was made moot by the ITC’s sunset review; the latter was brought under the wrong jurisdiction, as Erdemir could have brought its case under Section 1581(c), and requested a stay of the original investigation, rather than under Section 1581(i).

First, Reif held that, based on the previous CIT case Eveready Battery, a changed circumstances review was made unnecessary by the recent sunset review.

Erdemir claimed that changed circumstances reviews, unlike sunset reviews, can provide retrospective relief, and it pushed back against the recent sunset review’s cumulation of its goods with those of other subject countries, Reif said. It also argued that the ITC violated its own regulations and that the exporter “did not receive full consideration of its arguments in the sunset review,” he said.

Sunset reviews and changed circumstances reviews are the same, Reif said. In Eveready Battery, he said, CIT found that “[t]he purpose of both reviews is to determine whether revocation of an antidumping order is likely to lead to a continuation or recurrence of material injury.” Both use the same criteria, he said: likely volume of imports, price effects, and impact on the domestic industry.

Erdemir argued that the Uruguay Round's Statement of Administrative Action allows changed circumstances reviews to grant retrospective relief, but its text clearly indicates that changed circumstances reviews are prospective, Reif said.

The exporter also said that its imports wouldn’t have been cumulated with those of other countries in a changed circumstances review, but that wasn’t true, either, Reif explained. Both types of review allow cumulation -- unless, in both cases, the ITC “determines that such imports are likely to have no discernible adverse impact on the domestic industry,” he said.

Nor did ITC violate its own regulations, Reif said. He said that “Plaintiff asserts that its letter of May 18, 2020, was a properly filed CCR request requiring the Commission to promptly publish notice and request comments,” but neither that letter nor another one sent in July were actually such requests. Neither one “provided the standard for” changed circumstances reviews, and neither laid out why the recalculation of Colakoglu's dumping margin was enough of a changed circumstance to justify a review, he said. Erdemir’s September request, on the other hand, did both things, but it came after the ITC initiated its own sunset review, he said.

He acknowledged that the ITC still didn’t respond to that September request, saying that failure and its decision to then “waive perfunctorily the period for response specified in its regulations” were “suboptimal.”

“Transparency and responsiveness are cornerstones of administrative process under U.S. law,” he said. “Agencies are entrusted with these responsibilities by Congress and should treat them at all times as of utmost priority, regardless of the circumstances. In this case, however, none of the Commission’s actions impaired plaintiff’s opportunity to be heard.”

And the exporter did receive “full consideration” of the issues it raised during its sunset review, Reif said, rounding out his reasons for dismissing one of the cases.

He explained that he was turning away the other case because “an adequate remedy was available to plaintiff to challenge the final determination of the” ITC under Section 1581(c), but Erdemir failed to take it.

The “true nature” of Erdemir’s case was a challenge to the negligibility analysis made in the ITC’s original investigation, not the ITC’s refusal to reconsider that analysis later, Reif said. This was an agency determination that should have been litigated under Section 1581(c), as the scope of Section 1581(i) is “strictly limited” to issues that can’t be brought otherwise, he said.

The exporter argued that jurisdiction under Section 1581(c) would have required it to make a “speculative” claim against the ITC, “as it would have depended by necessity on the success of plaintiff’s then pending challenge to the final dumping margin of Commerce,” but this wasn’t enough to exempt it from the requirements of 1581(i) jurisdiction, Reif said. The “speculative” claim could have been stayed until the conclusion of its other challenge, he explained. Further, “according to defendant-intervenors,” multiple past CIT cases have been successfully litigated from the same position, he said.

“That the Commission’s decision to include Colakoglu’s imports in the Commission’s cumulated import volume became erroneous only after Commerce’s retroactive exclusion of Colakoglu’s imports from Commerce’s AD order -- as opposed to an exclusion ab initio under a negligibility analysis -- does not negate the fact that plaintiff had available to it a remedy under § 1581(c) that would have preserved plaintiff’s right,” he said.

(Eregli Demir ve Celik Fabrikalari v. ITC, Slip Op. 24-81, CIT # 22-00349, dated 07/22/24; Judge: Timothy Reif; Attorneys: David Simon of Law Offices of David L. Simon for plaintiff Erdemir; Frank Morgan for defendant U.S. government agency International Trade Commission; and Jeffrey Gerrish of Schagrin Associates for defendant-intervenors led by Steel Dynamics)

(Eregli Demir ve Celik Fabrikalari v. ITC, Slip Op. 24-82, CIT # 22-00350, dated 07/22/24; Judge: Timothy Reif; Attorneys: David Simon of Law Offices of David L. Simon for plaintiff Erdemir; Frank Morgan for defendant U.S. government agency International Trade Commission; and Jeffrey Gerrish of Schagrin Associates for defendant-intervenors led by U.S. Steel Corp.)