No Intervention in AD/CVD Matters Without Active Participation, Trade Court Rules

The Court of International Trade in an April 14 opinion denied steel company SSAB Enterprises the right to intervene in a challenge to a countervailing duty review. Although the company requested the Commerce Department open the review, it "sat on the sidelines" during the proceeding, Judge M. Miller Baker said in the opinion. "Commerce's regulations ... require that a would-be litigant do more than just show up."

The case concerns the 2019 CVD review of CTL plate from South Korea. Plaintiff Dongkuk Steel Mill is challenging Commerce's finding that the provision of carbon emission permits to mandatory respondent Hyundai Steel constituted a countervailable subsidy. SSAB sought to join the case as a defendant-intervenor, meeting resistance from Dongkuk. The plaintiff successfully argued that because the company didn't participate in the review, it shouldn't be granted the right to intervene (see 2204060045).

According to Commerce's regulations, a "party to the proceeding" is one that "actively participates, through written submissions of factual information or written argument" in a segment of the proceeding. Since SSAB did neither, it fails to satisfy this definition, the judge ruled. "As SSAB submitted neither 'written argument' nor 'factual information' in support of its 'allegation,' it did not 'actively participate' in Commerce’s review for purposes of 19 C.F.R. § 351.102(b)(36)," the opinion said. "Thus, the company was not a 'party to the proceeding' for purposes of intervention as of right under" the corresponding regulation.

(Dongkuk Steel Mill v. U.S., Slip Op. 22-34, CIT #22-00032, dated 04/14/22, Judge M. Miller Baker. Attorneys: Roger Schagrin of Schagrin Associates for proposed defendant-intervenor SSAB Enterprises; Jeffrey Winton of Winton & Chapman for plaintiff Dongkuk Steel)