ITC, Domestic Industry, Defend Cumulation of Australian Steel Decision

The International Trade Commission has discretion on when to cumulate imports in injury determinations, the commission said in its Oct. 19 opposition memo at the Court of International Trade. That discretion extended to the commission's decision to cumulate imports from Australia with other shipments in its sunset review of the antidumpingm duty orders on steel goods from Australia, Japan, the Netherlands, Russia, South Korea, Turkey and the U.K., it said (BlueScope Steel v. U.S., CIT # 22-00353).

The memo came in response to Australian exporter BlueScope Steel's July motion for judgment, which argued that the ITC departed from its "consistent past practice" of not cumulating an exporter that "has undertaken significant investments in U.S. production of the very product at issue after the AD order" because such investment changes the exporter's economic incentives regarding its future exports to the U.S.. BlueScope's $2.5 billion investment in the U.S. steel market "was much larger than had occurred in past cases where the Commission had consistently" found cumulation was not appropriate, the exporter said. BlueScope added that it is indisputable the company's investment "sharply distinguished" it from all other foreign country suppliers, noting that six of the other seven had no U.S. investment at all (see 2307170070).

The ITC said that it reasonably found that, upon revocation of the order, BlueScope was likely to sell to unaffiliated customers in the U.S. despite its investments in its Ohio affiliate North Star and other downstream users of hot-rolled steel. Congress created the cumulation provision to prevent domestic industry from injury by the “hammering effect” of unfairly traded imports from multiple countries upon revocation of orders. Such an effect could be obscured if subject imports were analyzed on a country-by-country basis, the ITC said. The commission argued that it was within its discretion under the statute to cumulate because of the possible combined injury effects of all imports.

The ITC argued it had no established practice of declining to cumulate imports from a specific country when a native producer has invested in U.S. production. The ITC said that it has "more often than not" rejected the argument that investment in domestic production makes cumulation inappropriate. In only two of the five reviews cited by BlueScope did the ITC decline to cumulate subject imports based on foreign investment, it said. Further, the ITC argued that sunset reviews are not precedential and that the CIT has upheld that view held by the Commission.

In its own response brief, U.S. Steel largely agreed with the ITC, adding that even if BlueScope could show a past practice, the ITC still adequately explained its cumulation decision. BlueScope also failed to prove that it wouldn't export volumes to the U.S. beyond its commitments to its affiliated purchaser, Steelscape.