ITC Defends Non-Cumulation Decision in Sunset Review on Cold-Rolled Steel

The International Trade Commission was not required in a sunset review to cumulate imports of cold-rolled steel from Brazil with subject imports from five other countries under consideration, it argued in a June 13 brief at the Court of International Trade (Cleveland-Cliffs v. U.S., CIT # 22-00257).

"The statute is explicit that cumulation in five-year reviews is discretionary," the brief said. The Statement of Administrative Action to the Uruguay Round Agreements Act emphasizes that the use of “may” in the statute grants the ITC discretion to engage in a cumulative analysis. Where Congress wished to mandate cumulation, it said so explicitly and used different language, like "shall," the ITC said.

Because neither the statute nor the legislative history provides any guidance on the factors the ITC can consider when deciding whether to cumulate imports, the reviewing courts have given the commission “wide latitude” in identifying the relevant factors for cumulation, said the ITC. Both the U.S. Court of Appeals for the Federal Circuit and CIT have held that the commission "ultimately retains statutory discretion in sunset reviews not U.S. Court of Appeals for the to cumulate subject imports" even if both the threshold requirements met, the commission argued.

The plaintiffs' claim the commission must cumulate subject imports in a five-year review unless it finds no likely overlap of competition or that revocation of an order would not have adverse impact (see 2303230058) would impose a requirement on ITC that does not exist in the statute, the ITC said. The statutory grant of discretion would be meaningless if the commission could decline to cumulate subject imports only when the statute did not permit cumulation under any circumstances, the ITC argued. CIT has rejected similar arguments that would have limited the ITC's discretion in past cases, the agency said.

In arguing its decision was within its discretion, the ITC also defended its analysis. It said it found "several meaningful differences in likely conditions of competition" between subject imports from Brazil and subject imports from China, India, Japan, South Korea and the U.K., making its decision not to cumulate reasonable. Imports from Brazil were subjected to an absolute quota, which the commission said meaningfully distinguished them from other countries. Both the Federal Circuit and CIT have affirmed the ITC in prior sunset reviews where the commission relied on similar factors in decisions not to cumulate, the ITC said.