Pea Protein Importer, Exporters Take Aim at Critical Circumstances Finding in Pea Protein Injury Investigation
Pea protein exporters and an importer said May 27 the International Trade Commission is wrongly attempting to create a new legal standard for determining the existence of critical circumstances (NURA USA v. United States, CIT Consol. # 24-00182).
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Importer NURA filed a motion for judgment opposing the International Trade Commission’s affirmative critical circumstances finding in investigations on Chinese-origin pea protein. It was joined by Chinese exporters, led by Jianyuan International, which submitted their own motion as consolidated plaintiffs.
The ITC was required, and failed, to find that imports of pea protein “massively” increased after the investigations’ petitions were filed, the parties said, referring to the Statement of Administrative Action to the Uruguay Round Agreements Act.
In this investigation, however, the ITC failed to make that separate determination, NURA said. The commission did say that imports increased “significant[ly] ... within the context of the U.S. market.”
NURA said the commission apparently adopted a new interpretation of the statute in its determination: that it can rely on Commerce’s own affirmative critical circumstances finding.
But Commerce’s critical circumstances finding is different than the ITC’s, the parties said. Commerce is only tasked with finding “massive imports of the subject merchandise over a relatively short period,” it said -- the department doesn’t have to find increasing imports.
Further, the two agencies have historically looked to different things when conducting their analyses, NURA argued. For example, it said, Commerce limits its critical circumstances inquiries to a three-month window, whereas the ITC has in the past considered five- or six-month periods.
These differences have resulted in Commerce and the ITC reaching differing conclusions in the past, it noted.
Jianyuan also specifically raised procedural issues with the determination. It said the ITC shortened its usual six-month critical circumstances inquiry period to five months simply “because the preliminary CVD publication published on the 18th day of the month,” even though a full six months was “warranted.” This went against its past practice, the exporter said.
The ITC’s “newfangled” argument “prejudices those exporters who served the U.S. market long before the domestic industry came into existence,” it said.
The parties also argued that there hadn’t been enough of an increase in imports to justify a critical circumstances determination. NURA claimed the ITC usually establishes a “very high standard” for finding critical circumstances, it argued, with the result that the commission has found no critical circumstances “in the vast majority of cases.”
But the ITC even acknowledged in this case that the increased share of imports was lower than that “in some other recent investigations” in which it found critical circumstances, NURA said. It tried to justify reaching the same conclusion for pea protein by saying the product’s impact on the U.S. market was “exacerbated by the already-dominant position of subject imports,” but this doesn’t let it disregard the statute, the importer said.
NURA also claimed the two-commissioner majority failed to properly consider pricing patterns that indicated the imports wouldn’t “seriously undermine” the antidumping and countervailing duty orders. Imports did increase in the last half of 2023, it said, but that was due to “temporary fluctuations in supply and demand.”