Turkish Steel Exporter Defends Positions in Appeals on Litigation's Effect on Injury Determinations
Turkish exporter Eregli Demir ve Celik Fabrikalari (Erdemir) filed three reply briefs in a trio of related cases at the U.S. Court of Appeals for the Federal Circuit, all of which are looking to get the International Trade Commission to account for litigation excluding respondent Colakoglu from the antidumping duty order on hot-rolled steel from Turkey in its assessment of whether the U.S. industry was injured (Eregli Demir ve Celik Fabrikalari v. U.S. International Trade Commission, Fed. Cir. #s 24-2242, -2243, -2249).
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Erdemir's three cases contest the ITC's five-year sunset review of the order, its decision not to reconsider the negligibility determination in the original investigation and refusal to conduct a changed circumstances review (see 2411210029). The Court of International Trade said Colakoglu's exclusion from the order, which occurred after separate CIT litigation, doesn't invalidate the sunset review (see 2406200045).
Replying to claims in all three cases from U.S. steel makers and the ITC itself, Erdemir argued that all the cases concern whether the commission can "turn a blind-eye to facts that, if properly considered, would lead to a finding that subject imports of hot-rolled steel from Turkey had never caused, and otherwise will not lead to continuation or recurrence of, material injury."
In its case on the sunset review itself, Erdemir argued that the ITC failed to consider all the material facts before it during the review. The exporter said the U.S. steel companies' claims to the contrary misinterpret the law and mischaracterize the exporter's arguments "against the Commission's failure to properly conduct its sunset review." Erdemir said that the commission was "well aware" during the sunset review that, had it considered the Commerce Department's remand results at the trade court finding Colakoglu's exports to be negligible, the AD order would have been revoked in the original injury proceeding.
"These facts were before the Commission during the sunset review, and Erdemir demonstrated their legal effect," the brief said. "Yet, the Commission failed to consider this when determining if revocation of the AD order on imports from Turkey would [be] likely to lead to the continuation or recurrence of material injury." The ITC errantly suggested that it can't consider "current, corrected facts," the exporter said.
Contrary to the U.S. steel companies' claim, Erdemir said it isn't trying to get the ITC to reconsider the original injury finding. "Here, reconsideration of the original injury determination is not required to determine that, pre-order, imports from Turkey were negligible and did not cause material injury," the brief said. Taking into account the fact that the AD order would be revoked if reassessed as part of the sunset review is not the same as revoking the original determination, the brief said.
In its case on the CCR, Erdemir argued that the U.S. steel companies are trying to "impede consideration of the changed circumstances" and bar the exporter from "exercising its legal rights." The steel companies rely on the trade court's "incorrect findings" that sunset reviews are "duplicative" of CCRs, rendering Erdemir's claims moot, since the ITC conducted a sunset review.
The U.S. steel companies based their claim on the fact that "both reviews require the Commission to determine whether revocation of an order is likely to lead to continuance or recurrence of material injury." Erdemir said this position is "meritless because it fails to account for distinctions between CCRs and sunset reviews, and how, when applying the revocation standard to the facts in accordance with these distinctions, the results between each review may differ."
Erdemir also argued that the trade court had jurisdiction under Section 1581(i) in its case seeking reconsideration of the original injury determination. The exporter said CIT "erroneously held that Erdemir could have sought appeal of the Commission's original negligibility determination even though there was no basis to challenge the original determination at the time when the deadline for appeal of that determination expired."
The U.S. steel companies ignore the fact that an appeal of the original determination "would have been contingent on complex third-party litigation, and therefore, would have been too speculative to constitute a cognizable claim." The trade court's decision bars Erdemir from "challenging the ongoing effect of the Commission's decision and shuts Erdemir out from legal resource."