Importer Brings Challenge Against ITC's 2,4-D Injury Determination to CIT
In a July 24 complaint, Chinese-origin 2,4-Dichlorophenoxyactic acid (2,4-D) importer PBI-Gordon Corp. challenged the International Trade Commission’s affirmative injury determination regarding its products on a number of fronts (PBI-Gordon Corp. v. United States, CIT # 25-00140).
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PBI-Gordon argued that it had demonstrated that it should have been considered a member of the domestic industry because its U.S. production process was “sufficiently complex.” It said it “submitted evidence regarding its investments, employment levels, and the complexity of its production process, among other factors.”
It also said that the ITC should have included the U.S. manufacturer Corteva’s own internal sales of 2,4-D for use in downstream products as part of its calculation of the domestic industry’s performance. The importer claimed it had “demonstrated how the requirements of the Act, to impose this exception to the general rule that the Commission consider the domestic industry ‘as a whole’, were not met.”
And it said the ITC failed “[i]n several instances” to recognize “critical flaws” in Corteva’s data. In places, that data was internally inconsistent or contradicted by other record evidence, it said, but the ITC simply accepted the producer’s “self-serving” numbers without explanation.
Finally, PBI-Gordon claimed that the ITC’s final determination was “fundamentally flawed” because it also dismissed evidence that Corteva had “voluntarily stopped supplying the U.S. market as early as the beginning of 2022,” the commission calling the evidence “ultimately speculative and unsubstantiated by record evidence.” The importer said the ITC instead relied on oral testimony provided by Corteva.
The agency also misunderstood its own arguments during the administrative proceeding, it said. It explained it “offered two plausible explanations for Corteva’s actions, both of which were premised on Corteva’s increasing sales of Elist, a more highly profitable, patent protected downstream formulated product,” but that these arguments were both “misperceived.”