No Requirement for ITC to Find 'Surge' of Imports for Critical Circumstances, Petitioner Says
Agreeing that the International Trade Commission isn’t required to determine that imports “surged” prior to the publication of antidumping or countervailing duty orders to find critical circumstances, a domestic pea protein producer supported Oct. 8 the ITC’s own explanation of the relevant standard (see 2509290056) (NURA USA v. United States, CIT Consol. # 24-00182).
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Importer NURA, joined by Jianyuan International and other Chinese exporters, argued in a May motion for judgment that the ITC was, in fact, specifically required to find that imports of subject merchandise “massively” increased after pea protein antidumping duty and countervailing duty investigations were filed (see 2505290001). The commission failed to do so because it instead relied on the Commerce Department’s own affirmative critical circumstances to fulfill that analytical prong, they claimed.
But the only factors that 19 U.S.C. 1673d(b)(4)(A)(ii) explicitly directs the ITC to examine are the “timing and volume of the imports”; “a rapid increase in inventories of the imports”; and other circumstances that might mean the “remedial effect of [an order] will be seriously undermined,” petitioner Puris Proteins said in its Oct. 8 brief.
In other words, the ITC doesn’t need to determine whether the imports were actually surging, it said. Congress left that responsibility to Commerce alone, creating an “analysis [that] has two distinct steps, one step for each agency,” it said.
“NURA’s reading [of the Uruguay Round Act’s Statement of Administrative Action] would result in the Commission redoing the statutory analysis already performed by Commerce, but with a higher threshold and a requirement that this finding is dispositive,” it said, echoing the ITC’s own opposition brief.
As the ITC did, Puris claimed that NURA’s argument was based on an inadequate “plucked” sentence from the SAA in which the drafters described why they were cleaning up an earlier section’s language.
The drafters explained that certain “deleted language [was] unnecessary and redundant because the Commission is already required to determine whether, by massively increasing imports prior to the effective date of relief, the importers have seriously undermined the remedial effect of the order.” This, however, was simply a “restatement” of the previously established critical circumstances analysis, Puris claimed.
And just the fact that the ITC has used words such as “massive” and “surge” in other critical circumstances findings doesn’t mean the commission has acknowledged “an extra statutory requirement,” it said.
It also said that the ITC was right to use a five-month data comparison period instead of the default six-month period, as Commerce’s preliminary determination was issued partway through the sixth month of the review period. The commission has switched to a five-month period in the past even when a preliminary determination has been published “halfway or later during the sixth month, and as late as the 22nd day” of that last month, it said -- later than the pea protein determinations.
Even if the commission did choose the wrong comparison period length, the error was harmless, it said.