Turkish Exporter Says Suit for Reconsideration of Injury Decision Valid Under 1581(i)
U.S. steel companies "confuse" a case from Turkish exporter Eregli Demir ve Celik Fabrikalari (Erdemir) seeking reconsideration of an International Trade Commission negligibility decision due to new facts with an "attack on the original negligibility decision," Erdemir said. Filing a reply brief to the steel companies' motion to dismiss for lack of jurisdiction under Section 1581(i), the Court of International Trade's "residual jurisdiction," Erdemir said the true nature of its action challenges the ITC's "refusal to initiate a reconsideration proceeding to reconsider the neglibitily determination" of hot-rolled steel from Turkey "in light of the successful appeal of Colakoglu" (Eregli Demir ve Celik Fabrikalari v. U.S. International Trade Commission, CIT # 22-00349).
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Relevant to the suit, the Commerce Department said Colakoglu, Turkey's largest exporter of subject goods, dumped its exports in the U.S. market. However, Colakoglu successfully appealed its margin, which was dropped to zero, excluding the company from the antidumping duty order. Erdemir said that as a result, the ITC would have made a negative final determination as to Colakoglu and revoked the order (see 2212270053). The company filed for reconsideration of the injury decision, which the commission denied, leading Erdemir to take its case to CIT.
In response, four steel companies, Cleveland-Cliffs, Nucor Corp., Steel Dynamics and SSAB Enterprises, said that Section 1581(i) was not proper jurisdiction for the case since relief could be sought under Section 1581(c) (see 2308010048). To this, Erdemir said that it is well established that vying for reconsideration is the proper challenge when an agency denies a petition that looks to reopen a case on the basis of changed circumstances. "A Commission decision not to initiate a reconsideration is not listed anywhere in 19 U.S.C. § 1516a, and thus cannot be brought under 28 U.S.C. § 1581(c)," the brief said.
Erdemir argued it had "no claim against the Commission's original negligibility decision in the AD investigation." While the steel companies said the exporter could have received the relief it wants by timely appealing the ITC's original injury investigation, this scenario "was not possible," the company said. The steel companies would have had Erdemir stay the case pending the outcome of Erdemir and Colakoglu's appeal of the final dumping margins.
The Turkish company said its appeal "would have been moot from the start since it only had a case five years after the injury investigation, when Colakoglu's case found success. Also, a stay in this case would not have been issued since the Supreme Court held that a stay until an appellate court rules exceeds "the limits of a fair discretion." Even if this five-year stay was possible, the facts forbid it, since the court only looks to whether the stay "promotes judicial economy" or relies on speculative issues.