Aussie Steel Exporter Challenges ITC Decision to Cumulate Its Imports With Other Countries
Australian exporter BlueScope Steel is asking the Court of International Trade to overturn the International Trade Commission's decision to cumulate imports from Australia with shipments from other countries in its sunset review of the AD orders on the steel goods from Australia, Japan, the Netherlands, Russia, South Korea, Turkey and the U.K. (BlueScope Steel v. U.S., CIT # 22-00353).
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The ITC had found BlueScope "would likely face the same conditions of competition" as exporters from other subject countries upon revocation of the antidumping duty order on hot-rolled steel from Australia cut against record evidence, the company said in a July 14 motion for judgment. But BlueScope said that "[a]t most" the ITC's discussion of the company's conditions of competition showed only a "possibility that BlueScope would resume dumping in the absence of the order," and failed to clear the "likely" standard imposed by the statute.
"That something might be theoretically possible does not come even close to the explicit statutory standard of 'likely' and so the Commission’s finding to cumulate Australia in this case was wrong and should be remanded," the brief said.
The exporter said the ITC "departed from, without an adequate explanation, 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." This investment changes the exporter's economic incentives regarding its future exports to the U.S., the brief said. BlueScope said there is no dispute regarding Commerce's past practice on this issue. 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, saying six of the seven had no U.S. investment at all. For the one country with U.S. investment, that investment "was undertaken by just one of the three" exporters in that country and the level of the investment was smaller.
Even if the trade court finds the departure from past practice was permissible, it should not sustain the sunset review because ITC's decision to cumulate imports from Australia is not backed by substantial evidence, the brief said. The cumulation decision was based on the idea that upon revocation BlueScope "would face similar conditions of competition as all other subject foreign producers." BlueScope said this ignored many elements of the record, including evidence on capacity limits and contractual obligations that limited the company's ability to supply the U.S. beyond its required supply to its affiliate.
The commission also "adopted a flawed analysis of the importance of BlueScope’s post-AD order investments in its U.S. hot-rolled production factory, North Star, and the effects on BlueScope’s economic incentives," and discounted changes in BlueScope's corporate structure without "rational explanation," the brief said. "None of this speculation stands up to careful scrutiny."