No Need for ITC to Rule on Underselling in Injury Investigations, CIT Says

The International Trade Commission isn't required to rule specifically on underselling in injury investigations -- it only needs to consider it, the Court of International Trade said last week. CIT also said overselling of a product by importers does not necessarily mean domestic producers’ prices haven't been impacted.

In an opinion published confidentially Dec. 18 and made public Dec. 22, Judge M. Miller Baker remanded a final determination in an injury investigation on methionine imports, saying the ITC had failed to address a lost sales pricing methodology offered by an importer. However, he upheld its other conclusions about the imported products’ impacts on domestic pricing and sales.

Adisseo Espana S.A., a Spanish methionine exporter, and its U.S. importer, Adisseo USA Inc., in November 2021 challenged an ITC affirmative final determination that the domestic methionine industry was injured by imports from France, Japan and Spain. Adisseo asked the determination be remanded so the ITC could specifically rule on whether the importers had been underselling, as was statutorily required but had not been done, the company said (see 2208150017). It also said the ITC’s finding had miscalculated certain aspects of the imports’ pricing, volume and impact on domestic producers.

Adisseo was right that the ITC should have addressed the fact that, when calculated using Addisseo’s methodology, methionine imports caused far fewer lost sales than the ITC identified, the court said.

“Because the Commission had a duty to address the company’s proffer ... the court must remand,” it said.

But the court disagreed that the ITC was required to rule on underselling, saying that the commission simply discovered the exporters were not underselling, and actually had been overselling, indicating the ITC had properly considered the issue and found it insignificant. That was sufficient, the court ruled.

It said Adisseo was overvaluing the importance of the importers’ overselling their product. In its final determination, the ITC had found that imported methionine was generally priced higher than domestic methionine, but it said that enough sales were offered to substantially affect domestic sellers. Overselling still could indirectly impact domestic prices, the court said.

The court also rejected all of Adisseo’s other claims. It said the ITC’s consideration of pricing as “an important factor” was not the agency saying it was “the most important factor,” as Adisseo alleged. Pricing was, in fact, an important factor for domestic purchasers, it said. It also said lost sales allegations by domestic producers were enough to allow the ITC to conclude import-driven price suppression had occurred.

It also disagreed with Adisseo’s argument that the domestic producers weren't actually impacted because they had already been operating at high capacity -- they couldn’t sell any more methionine than they already were selling. It agreed with the ITC, which had said the argument lacked evidence and couldn't explain revenue lost by domestic producers.

(Adisseo Espana S.A. and Adisseo USA Inc. v. United States, Slip Op. 23-178, CIT # 21-00562, dated 12/18/2023; Judge: M. Miller Baker; Attorneys: Eric Emerson of Steptoe & Johnson for plaintiffs Adisseo Espana and Adisseo USA; Noah Meyer for defendant U.S. government; Benjamin Bay of Schagrin Associates for defendant-intervenor Novus International Inc.)