CIT Refuses to Reverse Steel Producers' Intervention in Case on ITC Decision

The Court of International Trade ruled that exporter Eregli Demir ve Celik Fabrikalari (Erdemir) failed to show that the court should revisit its past order allowing four U.S. steel companies to intervene in a case on the International Trade Commission's injury determination related to imports of hot-rolled steel from Turkey. Judge Timothy Reif said the four companies champion claims that share a common question of law or fact with the case's main action, would be adversely affected if the court were to rule in Erdemir's favor and would not unduly delay the adjudication of the original parties' rights.

However, Reif continued to deny U.S. Steel Corp.'s right to intervene, finding the company did not explain how the decision would adversely affect it. The judge added that U.S. Steel failed to demonstrate that the ITC and the other steel companies will not adequately defend their position without U.S. Steel's input.

Reif found U.S. Steel put forth only a conclusory defense of its right to intervene. The company said "it makes logical sense to allow U.S. Steel to intervene," given that issues related to jurisdiction affect the companion cases where the company has a right to intervene, the judge said. "These reasons do not provide a basis to conclude that [U.S. Steel] would be 'adversely affected or aggrieved' if it were not granted permissive intervention and the court examines [U.S. Steel's] position as presented in the action before it."

The four steel companies granted intervention by the court -- Cleveland-Cliffs, Nucor, Steel Dynamics and SSAB Enterprises -- had said they fully participated in the ITC proceedings and have a significant interest in the case.

Reif first looked to whether the firms shared a claim or defense with the main action. Erdemir's suit contests ITC's decision not to reconsider its underlying injury finding. In the countervailing duty investigation following the injury finding, the commission said imports from Turkey were negligible after it excluded Colakoglu, the country's largest exporter, because it was subsidy-free. However, in the antidumping duty case, the Commerce Department said Colakoglu dumped its exports in the U.S. market, so the company's merchandise was included in the injury proceeding. Colakoglu successfully challenged its dumping margin, dropping it to zero and excluding the company from the order. Erdemir says that as a result, the ITC would have made a negative final determination as to Colakoglu, just as was done in the CVD case (see 2212270053).

While the steel companies did not file comments on Erdemir's reconsideration request, Reif said the companies didn't have a chance to present their views because the ITC denied the request without starting the proceeding. Regardless, Reif said the main claim in the case "was addressed by all parties" in the changed circumstances review. The judge said Erdemir's "proffered distinction between the factual and legal issues covered by the [changed circumstances review], the sunset review and the requested reconsideration by the Commission is not persuasive."

Reif said the companies would be adversely affected if the court were to side with the exporter because "the instant matter involves an unusually far-reaching issue of potential consequence for all private parties -- i.e., the revocation of an AD order if the court remands to the Commission to reconsider the 2016 injury determination that underlies the AD order in this case."

Erdemir also argued that it did not have a chance to oppose the steel companies' motion for leave to file a reply regarding its intervention and that the motions to intervene were granted without the court addressing the company's arguments. Reif agreed this was an error but ruled it was not one that affected the exporter's "substantial rights" with respect to the main action. "The preemptive grant of leave for [defendant-intervenors] to file a reply would not disturb the court’s decision to grant the permissive intervention of defendant-intervenors," the judge said.

(Eregli Demir ve Celik Fabrikalari v. ITC, Slip Op. 23-73, CIT # 22-00349, dated 05/15/23; Judge: Timothy Reif; Attorneys: David Simon of Law Offices of David L. Simon for plaintiff Erdemir; Michael Haldenstein for defendant U.S. government agency International Trade Commission; Roger Schagrin of Schagrin Associates for defendant-intervenors led by Steel Dynamics; Stephen Vaugh of King & Spalding for defendant-intervenor Cleveland-Cliffs; Alan Price of Wiley Rein for defendant-intervenor Nucor Corp.; and Thomas Beline of Cassidy Levy for defendant-intervenor U.S. Steel Corp.)