CIT Judge Questions Both ITC and Domestic Steel Producers Before Oral Arguments

Court of International Trade Judge Gary Katzmann questioned U.S. steelmakers and the International Trade Commission about whether the commission's previous instances in cumulating imports during sunset reviews constituted an "agency practice," as part of a series of questions before upcoming oral arguments. The case concerns the ITC's decision not to cumulate imports of cold-rolled steel from Brazil with those of China, India, Japan and the U.K., in sunset reviews (Cleveland-Cliffs v. U.S., CIT # 22-00257).

Cleveland-Cliffs said in a July 31 reply brief that the decision conflicted with CIT precedent (see 2308010062). The steelmaker also argued that the commission had previously and "consistently" found, in other sunset reviews, that the Section 232 measures wouldn't have prevented merchandise from entering the U.S. market after revocation of antidumping orders.

Katzmann also inquired into the concern that requiring the ITC to justify deviations from previous judgments might "ossify" the Commission's ability to judge in other cases.

In his questions to Cleveland-Cliffs, Katzmann expressed interest in whether the dissenting votes at the Commission adhered to the "prior practice" argument as articulated by Cleveland-Cliffs, and asked the company to clarify what it thought the ITC's particular obligation was concerning counter arguments. Katzmann asked whether the commission was obligated to address the dissent or whether the court should simply look at the dissent as an example of a legally sound analysis. He also probed Cleveland-Cliffs on its argument that the dissent showed that the full commission had made a "legal error." Katzmann suggested that the dissents could have been mere "difference of opinion on what is relevant for a conditions-of-competition analysis."

Katzmann also asked Cleveland-Cliffs how Brazil would have incentive and ability to increase exports to the U.S. considering the low-volume quota currently in place. In June, the ITC argued that the governing statute was "explicit" that the ITC has discretion over cumulation decisions in its reviews (see 2306140068). Two Brazilian steel producers, Companhia Siderurgica Nacional and Usinas Siderurgicas de Minas Gerais, agreed with the ITC in a joint brief, saying that the Commission has “wide discretion” over which factors to consider in reaching that cumulation determination (see 2306290020).

The judge questioned the ITC on whether it had an established prior practice and whether its previous determinations constituted a "general finding," which the court had already ruled required explanation to depart from. The judge also questioned the commission about the limited evidence cited in its conditions-of-competition analysis and whether its assertion of deference and discretion fit with the Commission's requirement to “examine the relevant data and articulate a satisfactory explanation for its action[s]."