ITC Erred in Not Including Herbicide Processors in Domestic Industry in Injury Proceeding, Importer Argues
The International Trade Commission failed to include processors of 2,4-dichlorophenoxyacetic acid (2,4-D) in the U.S. industry in an injury proceeding on imports of the product from China and India, importer Nufarm Americas argued in a July 18 complaint at the Court of International Trade. Nufarm added that the ITC largely ignored the fact that petitioner Corteva Agriscience "withdrew from the U.S. merchant market for 2,4-D acid and esters" to focus on making its patented downstream non-subject 2,4-D end use products" (Nufarm Americas v. United States, CIT # 25-00133).
Sign up for a free preview to unlock the rest of this article
Timely, relevant coverage of court proceedings and agency rulings involving tariffs, classification, valuation, origin and antidumping and countervailing duties. Each day, Trade Law Daily subscribers receive a daily headline email, in-depth PDF edition and access to all relevant documents via our trade law source document library and website.
During the proceeding, Nufarm said it provided data showing that processors of 2,4-D acid, which is an herbicide, "conducted sufficient production-related activities to be considered part of the domestic industry" and that there was "limited head-to-head competition" between subject imports and the domestic like product "such that competition was attenuated." Following the commission's 3-0 vote finding that the subject imports injured the U.S. industry, the importer took to CIT, filing a four-count complaint against the determination.
Nufarm first claimed the ITC erred in failing to include 2,4-D processors in the domestic industry. The company said it's "undisputed" that the domestic like product includes "2,4-D salts and esters and, the precursor to both, 2,4-D acid."
The importer said it provided detailed information and data showing that, with regard to its production of esters, "the level of capital investment needed to undertake esterification," which is the manufacturing process needed to make 2,4-D esters from 2,4-D acid, was "significant." The data also showed that the "esterification process is complex and requires highly skilled workers in order to consistently yield the desired result" and that "the value-added by the esterification process is significant."
The ITC's primary basis for finding that 2,4-D processors didn't have sufficient U.S. production activities to qualify as part of the U.S. industry "was a relative comparison of the production efforts needed to produce 2,4-D acid, esters, and salts, as opposed to the production efforts needed to produce only 2,4-D esters and salts," Nufarm noted. The importer said this comparison wasn't backed by substantial evidence.
Nufarm also challenged the ITC's finding that imports of 2,4-D had significant adverse volume and price effects and had an adverse impact.
Regarding the adverse volume effects and adverse impact findings, the importer said the ITC "ignored clear evidence that provided important context as to why the increase in subject imports from China and India could not be considered significant in any economically meaningful sense." This evidence included the fact that Corteva decided to stop selling 2,4-D acid and esters "to its pre-existing larger volume customers," which was a decision "that had nothing to do with price." Instead, the company decided to sell its "more lucrative 2,4-D end-use products," Nufarm said.
Regarding the adverse price effects finding, Nufarm said the ITC "largely ignored the fact that customers did not purchase 2,4-D on the basis of price," adding that there was "no correlation between underselling and shifts in market share of subject imports." During the part of the investigation period when "more instances of underselling occurred," the volume of subject imports dipped while their market share remained the same, the brief said.
"Counterintuitively, during the part of the [period of review (POI)] when more instances of overselling occurred, the volume and market share of subject imports increased."