No Need for ITC Consideration of AD/CVD Suspension Agreement's Effect on Importers, CIT Says
The International Trade Commission does not necessarily need to consider the interests of importers when it decides whether to approve settlements between U.S. domestic producers and foreign exporters in antidumping and countervailing duty investigations, the Court of International Trade said in a recently released public version of the Oct. 5 ruling (here) that upheld recent suspension agreements on sugar from Mexico. The agency only needs to find that suspension agreements eliminate injury caused to domestic industry by dumping and illegal subsidization, and does not need to account for any negative effects caused by the suspension agreement itself, CIT said.
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Imperial Sugar Company brought the court challenge of the Mexican sugar suspension agreements, which ended AD and CV duty investigations on sugar from Mexico in return for limits on price and quantity of Mexican sugar exports (see 1412240020). As a “destination refiner” that relies on imported sugar instead of growing it, the suspension agreements would drive up prices on its inputs and cut into its profits, putting Imperial Sugar Company and other destination refiners on a “starvation diet,” it said (see 1501210022).
One legal requirement for suspension agreements is that they “eliminate completely the injurious effect” of dumped and illegally subsidized sugar imports. Imperial Sugar said the Mexico sugar agreements did not completely eliminate injury because destination refiners are still injured.
However, the “injury” that suspension agreements must eliminate is the injury the ITC considers during the normal course of its AD/CVD investigations -- that is, the injury caused by dumped and illegally subsidized imports to domestic industry, CIT said. The ITC does not consider whether injury would be caused by the suspension agreement itself, nor does it have to engage in a sector-by-sector analysis of the domestic industry, it said. “[Imperial Sugar’s] loss of its commercial advantage of large volumes of low priced subject imports as a result of the Agreements is neither a harm that the statute contemplates nor a harm shared by all of the destination refining segment,” the court said. “For the industry as a whole, there is no discernible injurious effect caused by suspending the AD and CVD investigations pursuant to these Agreements that would limit imports and impose minimum reference prices.”
(Imperial Sugar Co. v. U.S., Slip Op. 16-91, CIT # 15-00118, dated 10/05/16, public version 10/12/16, Judge Barnett)