SeAH Says US Identified Wrong Intervention Standard in Opposing Its Intervention Bid in AD Case

The U.S. identified an incorrect standard for intervention in opposing exporter SeAH Steel Corp.'s motion to intervene in an antidumping proceeding at the Court of International Trade, SeAH argued in a July 29 brief. The exporter argued that it clearly has a right to intervene in the action since a CIT rule says that a party can intervene if it is given an unconditional right to intervene by a federal statute. Given that a federal statute does just that since SeAH was a party to the underlying review in question, SeAH said it can intervene in the case (Hyundai Steel Co. v. United States, CIT #22-00138).

The matter concerns the 2019-2020 administrative review of the antidumping duty order on oil country tubular goods from South Korea in which Hyundai Steel and SeAH were tapped as mandatory respondents. In the review, Commerce said that since there was no viable comparison market for Hyundai Steel, it could use "any reasonable method" to find the respondent's constructed value profit, selling expenses and constructed export price profit. The agency ended up using SeAH's third-country sales to Kuwait to do this.

CIT recently consolidated four cases each challenging this review, brought by lead plaintiffs Hyundai, AJU Besteel Co., Nexteel Co. and Husteel Co. (see 2206280075). In these cases, the plaintiffs argue that Commerce could not use these sales to calculate CV profit and selling expenses since Hyundai Steel itself has no means to review the underlying data to check out the accuracy of these sales since it can't access SeAH's business proprietary information. Further, the respondent said that Commerce failed to apply the mandated CV "profit cap" as required by the law -- an especially important point since SeAH's third-country profit ratio greatly outpaced other record sources -- and that SeAH's third-country sales were not representative for calculating CV profit and selling expenses for Hyundai Steel.

The U.S. opposed SeAH's motion to intervene in the case, telling the trade court that since the company received its own individual dumping margin for its exports, its rate would be unaffected by any decision in the present case. DOJ further argued that SeAH failed to claim a "legally protectable" interest in the transaction at issue, has no direct relationship to the litigation and failed to show that this interest is not adequately addressed (see 2206300047). The U.S. took issue with SeAH's stance, which said that it may be adversely affected by the issues not in the present case but in other cases.

In response, SeAH said the U.S. "is mistaken and has identified an incorrect standard for intervention." For starters, the exporter claimed it has "piggyback standing" to join the suit since it is litigating the same issue -- Commerce's alleged failure to apply a constructed value profit cap. The court has previously recognized that for establishing piggyback standing, a party need only defend the same issue, the brief said.

SeAH then vied for the right to intervene under court rule 24(a)(1), which says that a party can interevene if it was given an unconditional right to by a federal statute. Seeing as 28 U.S.C. Section 2631(j)(1)(B) permits a company that was party to the proceeding underlying a lawsuit to intervene as a matter of right in a civil action under section 516A of the Tariff Act of 1930, and seeing as the AD review is under section 516A, SeAH can intervene in the case, the brief said. "Defendant’s opposition to SeAH’s intervention has no support in the law, the Court’s rules, or the Court’s previous decisions," SeAH said.