CIT Says No Disturbing Finality of Underlying Injury Finding in AD Injury Sunset Review

Turkish exporter Erdemir claimed that Commerce's amended AD decision rendered the underlying injury decision "inoperative" and nullified the sunset review's finding that revoking the AD order would likely lead to the recurrence or continuance of harm to the U.S. industry. Judge Gary Katzmann said that this claim, if successful, "would upset the basic principles of finality and certainty that underlie administrative law."

The court said that the underlying injury determination "remains a final and binding agency action." Maintaining the legal effect of final administrative decisions "is particularly important in the trade context, where special complexities heighten the need for beacons of certainty," the opinion said.

U.S. trade remedy laws involve coordinating various federal agencies -- behavior that's "iterated, and not synchronously," Katzmann said. Commerce conducts annual AD/CVD reviews, while the ITC carries out five-year sunset reviews, and all the while judicial review "complicates matters even further," the court said.

It's "administrative finality that this task is merely difficult and not impossible," Katzmann said. When Commerce or the ITC issues a decision, "it must describe the nature and grounds of its decision." Erdemir's approach "would leave navigators of the trade law labyrinth without this crucial navigational thread." Instead, any decision "would be subject to retroactive, undefined revisions and nullification by subsequent non-Commission determinations."

While sophisticated parties can make guesses as to what will happen, there's "simply no way to deduce the totality of downstream legal consequences." Sorting out legal consequences "is the province of litigation, not divination," the judge said. "If a party wants to cut off the legal effect of a past determination that it alleges is irreconcilable with subsequent determinations, it can sue for that remedy."

The ITC made its initial injury finding regarding the AD order in 2016, though it dropped the CVD investigation on the same products since Colakoglu received a de minimis CVD margin. Following a court challenge, Colakoglu then received a zero percent AD margin. Erdemir filed two CIT challenges regarding this development. One suit challenged the ITC's refusal to reconsider the original injury finding, and oral argument was held in this case last week (see 2406190006).

The second was the present suit challenging the ITC's sunset review. As part of its case, Erdemir also challenged the ITC's decision to cumulate imports from Turkey with goods from other countries in the sunset review determination. Katzmann rejected this claim, finding that the ITC didn't consider Colakoglu's data in its cumulation analysis.

None of the factors the commission noted as part of its decision to cumulate the Turkish goods with imports from other nations involved the exporter's U.S. sales of non-subject merchandise. While certain ITC data collected during the underlying injury proceeding referred to Colakoglu's sales, the ITC generally used those references either as background or as a means of establishing an illustrative comparison with data collected during the review underlying the sunset review, the court said.

Katzmann also found that the ITC reasonably said that Turkish imports wouldn't have any "discernible adverse impact" on the domestic industry. Erdemir argued that without the "taint" of Colakoglu's data, the commission couldn't have legally said that Turkish goods wouldn't have a discernible impact since the collective value of non-Colakoglu imports during the period underlying the sunset review was too low to effect a discernible impact.

To this, the court said discernibility "is a low bar" and that the impact of the Turkish goods doesn't need to inflict material injury to be discernible. Since the court can't substitute its judgment for that of the ITC's, Katzmann rejected Erdemir's claim.

The court also ruled against Erdemir's claim that the decision to cumulate Turkish goods is irreconcilable with its decision not to cumulate Brazilian imports. Katzmann said the two decisions were made pursuant to two different standards. The Brazilian imports weren't cumulated since they operated under different conditions of competition, while the Turkish goods were cumulated under the ITC's discernibility analysis. While the ITC's analysis "may rest on overlapping data, it does not follow that data which cuts against a finding of similar conditions of competition must also cut against a finding of discernibility," the court said.

(Eregli Demir ve Celik Fabrikalari v. U.S. International Trade Commission, Slip Op. 24-75, CIT # 22-00351, dated 06/20/24; Judge: Gary Katzmann; Attorneys: David Simon of Law Office of David L. Simon for plaintiff Erdemir; Spencer Toubia for defendant International Trade Commission; Jeffrey Gerrish of Schagrin Associates for defendant-intervenors led by U.S. Steel Corp.; Thomas Beline of Cassidy Levy for defendant-intervenor U.S. Steel Corp.; Alan Price of Wiley Rein for defendant-intervenor Nucor Corp.; and Stephen Vaughn of King & Spalding for defendant-intervenor Cleveland-Cliffs)