Turkish Exporter Makes Opening Arguments in Trio of Appeals Involving AD Sunset Review

Erdemir's three cases, which CAFC refused to consolidate (see 2410230012), contest the sunset review itself, the ITC's alleged failure to reconsider the negligibility determination in the original injury investigation and the ITC's refusal to conduct a changed circumstances review. 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).

In its case challenging the sunset review, the exporter argued that the ITC erred in "refusing to revise the investigation findings to be consistent with subsequent litigation for purposes of assessing the likelihood or recurrence of material injury." Erdemir added that the commission shouldn't have assessed the "over-inclusive investigation import volumes while expressly stating it was not" (Eregli Demir ve Celik Fabrikalari v. United States, Fed. Cir. 24-2249).

The commission was required by law to exclude the Turkish imports "found not dumped," the brief said. Once these volumes are removed, the Turkish imports would have been found to be negligible, revoking the AD order. Since Colakoglu was "retroactively excluded" from the AD order after its successful challenge to its AD rate in the original investigation, the company's volume became "non-subject ab initio insofar as any consideration of injury is concerned," the brief said.

While CIT focused on the lack of revocation of the original injury determination, there's "no legal authority to support the Commission avoiding the non-subject nature of these imports" in the later sunset review, Erdemir argued. The exporter relied on the Statement of Administrative Action accompanying the Uruguay Round Agreements Act as the statutory basis for its claim, claiming that, under this law, if any country is found to have negligible imports, the ITC must terminate the investigation and avoid cumulating the negligible imports with imports from other countries.

The sunset review was a "proper vehicle for the Commission to account for what should have been a prior no material injury decision," Erdemir argued. The ITC "lacked the authority to act as though these facts did not exist."

In its case challenging the ITC's decision to reject its request to open reconsideration proceedings of the original injury investigation, Erdemir defended its assertion of jurisdictional CIT under Section 1581(i), the court's "residual" jurisdiction. Erdemir said the suit can't be brought under any other provision of Section 1581, adding that even if Section 1581(c) was available, the company's relief "would have been reliant upon third-party actions and the court's grant of a stay pending the third-party actions." This reality can't be adequate "by any measure because it would be futile," the brief said (Eregli Demir ve Celik Fabrikalari v. United States, Fed. Cir. 24-2243).

In its third case on the commission's rejection of the request to open a changed circumstances review, Erdemir defended its assertion of jurisdiction under Section 1581(c) (Eregli Demir ve Celik Fabrikalari v. United States, Fed. Cir. 24-2242).

The company said jurisdiction is proper since its claim "presents a redressable and live controversy." Erdemir is subject to an AD order based on information that has "since been revised pursuant to judicial review," the brief said. A changed circumstances review would let the ITC reconsider its original decision to account for these changes, leading to the request for the review, the exporter argued.

The ITC can reconsider its past decisions based on later events under the SAA, the brief said. "Moreover, the analysis undertaken in a CCR as compared to a sunset review is distinct," Erdemir argued. "In a CCR, the Commission must consider changes to past circumstances. By contrast, in a sunset review the Commission must consider current circumstances."