ITC Can't Use Export Data in Critical Circumstances Review, Shaft Engine Importer Tells Trade Court

The International Trade Commission can't use export data when making a critical circumstances determination to find whether a surge in imports undermines the remedial effect of the antidumping duty and countervailing duty orders in question, plaintiff MTD Products said in a Feb. 11 reply brief (MTD Products Inc. v. United States, CIT #21-00264).

MTD challenges the ITC's imposition of retroactive AD/CVD on small vertical shaft engines from China. The plaintiff said that COVID-19 manufacturing complications distorted both the timing and the volume of imports over the post-petition period, undermining the reasoning behind the critical circumstances finding (see 2106010058). The Department of Justice and Briggs & Stratton countered that certain export data was the best information available for the shaft engines and works as a substitute basis for the critical circumstances finding.

By law, the ITC can't use data outside of the "statutory parameters of analysis," MTD said. "Indeed, rendering a critical circumstances determination -- which focuses specifically on the 'timing and volume of imports' -- based on clearly distorted export data reflecting imports outside of the pertinent post-Petition period is akin to Commerce calculating a dumping margin on entries that demonstrably fall outside of the relevant POI," the brief said. "An explanation from Commerce that such entries simply constituted the 'best available information' from which to derive such margins would never pass muster before this Court."

The plaintiff argued that the remedial effects of the AD/CVD orders were not "seriously undermined" by the imports during the post-petition period, as the defendants suggest. The law requires a record of circumstances showing that the remedial effects of the orders will be undermined before retroactively imposing the duties. MTD says there are none, and not that it is not trying to replace a more favorable reading of the facts with the ITC's.