ITC Illicitly Relied on Commerce's Critical Circumstances Finding, Importer Argues

Nura said the ITC failed to independently find that subject imports of Chinese pea protein massively increased or surged during the post-petition period. Instead, the commission seemingly adopted a "new interpretation of the statute that it is not required to separately consider whether the imports with respect to which Commerce has made an affirmative critical circumstances determination have 'massively increas{ed}' or 'surge{d},'" the brief said.

The statute makes clear that the ITC and Commerce have distinct roles in critical circumstances determinations, Nura argued. The commission is charged with finding whether there have been massive imports of the subject goods over a relatively short period, while Commerce then looks to whether the imports subject to the affirmative critical circumstances finding are likely to seriously undermine the remedial effect of the antidumping or countervailing duty order.

Nura said that Commerce and the ITC have "completely different statutory standard[s]." Commerce must only find there have been "massive imports" of the subject goods "over a relatively short period," while the ITC is tasked with identifying "massively increasing imports." Finding that there were "massive imports" is "plainly not the same as finding that there were 'massively increasing imports' that could seriously undermine the remedial effect of an order," the brief said.

In addition, Commerce and the ITC review different time periods for their critical circumstances determinations, with Commerce generally considering a "three-month post-petition period" and the ITC evaluating a five- or six-month post-petition period.

Even if the statute let the ITC rely on Commerce's findings, any such reliance would stand as a marked departure from the commission's past practice and thus would require notice-and-comment, which wasn't present here, Nura argued. The majority "offered no explanation for why" it adopted the position that it didn't need to "adhere to its statutory mandate," despite its "longstanding practice" of making factual findings regarding the existence of critical circumstances, the brief said.

Nura also said the record evidence doesn't show a massive increase in subject imports in the post-petition period. For this part of the argument, the importer relied heavily on the dissenting opinion of Commissioner Rhonda Schmidtlein, who noted that the "post-petition increase in subject imports in this case is distinguishable" from larger increases calculated in various other cases in which the ITC reached affirmative critical circumstances determinations.

Schmidtlein "specifically noted the emphasis that the statute and legislative history place on the magnitude of the increase in imports, and concluded that" the record here doesn't satisfy the "statutory requirement of 'massively increasing imports.'"

The ITC majority offered two explanations for its conclusion, the first of which is that the effect of the post-petition volume increase was "exacerbated by the already-dominant position of subject imports in the U.S. market." Nura said this explanation "contradicts the statute," and, as Schmidtlein noted, "if subject imports start from a large base, there does not necessarily need to be an increase in import volume in the post-petition period at all, let alone a ... ‘massive’ increase as contemplated by the statute and legislative history.”

The commission also said the "much lower increase in imports in this case compared to other recent cases in which it made an affirmative critical circumstances determination was irrelevant." However, Nura said the majority "misses the point," which is that the "statute and legislative history plainly require evidence of a 'surge' or 'massiv{e} increas{e}' of imports so as to undermine the remedial effect of the orders."