ITC Says Pea Protein Importer Misunderstood Critical Circumstances Standard
The International Trade Commission disagreed Sept. 24 that it was basing its finding of critical circumstances for pea protein from China on the Commerce Department’s own independent critical circumstances determination (NURA USA v. United States, CIT Consol. # 24-00182).
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Rather, importer NURA’s motion for judgment (see 2505290001) mixed up the ITC’s legal standard for finding critical circumstances with Commerce’s, it said. Commerce is required to find that an increase in imports after an investigation petition was “massive,” but the ITC looks to whether the “timing and volume” of imports will “undermine the remedial effects of the … order,” it said.
NURA’s misinterpretation was merely based on “a misreading of an ancillary passage” of the Uruguay Round Agreements Act Statement of Administrative Action, it said. That passage explained that Congress found the phrase “injury which is difficult to repair,” appearing in the provision instructing the ITC to consider whether relevant imports will undermine an order’s effectiveness, was redundant and so removed it.
“NURA attaches great significance to the sentence ‘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 an order,’ but this statement is simply a restatement of the corresponding statutory provision,” it said.
That corresponding provision, it said, states that the ITC must make its finding in regard to imports Commerce has found “massively increased.” Therefore, “the clause ‘by massively increasing imports prior to the effective date of relief’ is a reference to the determination that Commerce must make,” not a directive to the ITC to consider “the timing and volume of the imports”, it said.
The commission followed the proper standard, it said. The ITC found that pea protein imports decreased every month in the five months before the investigation petitions were filed, then rose to higher than “in any month of the pre-petition period” in the three months following, it said. They reached their 2023 high water mark in September, when arriving goods would have to have been ordered immediately after the petitions were filed in July, it claimed.
The total volume of the increased imports was less than increases the ITC considered in other affirmative critical circumstances findings, but that volume made up a greater share of the U.S. market in the case of pea protein than it did in those other determinations, it noted.
And it disagreed that U.S. pea protein demand increased in 2023. The mandatory respondents even “insisted in their own hearing testimony that demand decreased over the” inquiry period, it said.
The ITC also said it properly considered whether there was a “rapid increase in the inventories of the imports,” despite NURA’s claim otherwise, because the statute also means to combat “clever importers” who might stockpile their product prior to an order taking effect instead of just quickly purchasing and selling them.
It further defended its use of five-month instead of six-month data comparison periods. Using six-month periods would have distorted the data, as Commerce imposed provisional duties part-way through December 2023. Fewer products would have been imported in that final month, it said. It argued that it has done the same thing in other cases “when Commerce’s preliminary determination applicable to the country at issue fell within the six-month post-petition period.”