US Steel Makers Challenge ITC's Decision Not to Cumulate Imports in 5-Year Sunset Review

The International Trade Commission's decision not to cumulate imports of cold-rolled steel from Brazil with the other countries under consideration in the five-year reviews of the antidumping and countervailing duty orders on cold-rolled steel flat products "was clearly inconsistent" with the Court of International Trade's past rulings on cumulation in sunset reviews, a group of U.S. companies argued (Cleveland-Cliffs v. United States, CIT # 22-00257).

The ITC also "ignored critical facts" on the issue and disregarded its own rulings on the "impact of Section 232 trade measures on the likely volumes of subject imports," the steel companies, led by Cleveland-Cliffs, claimed.

In the review, the ITC chose not to cumulate Brazil's imports with the goods from China, India, Japan, South Korea and the U.K., saying Brazil's goods would compete under different conditions of competition. The commission based its decision on Brazil being subject to a quota of 57,251 short tons under a deal to avoid Section 232 steel tariffs. The ITC said imports from the other countries were able to compete for much larger sales volumes since Brazilian producers had to share the quota limits.

Cleveland-Cliffs told the trade court that the ITC failed to show how its findings for Brazil were consistent with CIT's 2001 opinion in Neenah Foundry Co. v. U.S., in which CIT found that "differences in import volumes alone are insufficient to justify a decision not to cumulate imports from one of the subject countries."

Cleveland-Cliffs said that the ITC used a comparison of the likely volumes of Brazilian imports and imports from China, Japan, India and the UK "as the sole distinguishing factor" between the imports. "By doing so, the Commission majority engaged in the very 'circular analysis' that the Court has declared to be impermissible under the statute," the brief said.

The steel companies added that the ITC's conditions of competition analysis was not consistent with its own past decisions on the impact of Section 232 tariffs on the volume and pricing of imports. "Significantly, until the Commission’s decision for cold-rolled steel from Brazil, the Commission had consistently found that the existence of Section 232 relief would not prevent unfairly traded imports from entering the U.S. market in a manner that would impact the domestic industry," the brief said.

Cleveland-Cliffs pointed to a 2018 sunset review on clad steel plate from Japan, where the ITC said that the U.S. market is "sufficiently attractive" to encourage foreign manufacturers to ship significant amounts of clad steel plate in the absence of the AD order even with the Section 232 tariffs. "This Court has stated that the Commission will be found to have acted unlawfully if it treats similar cases differently without an adequate explanation," the brief said.