US Says Recent CAFC Decision Helps Resolve Case on Critical Circumstances Finding
The U.S. filed a notice of supplemental authority at the Court of International Trade in a case on an antidumping and countervailing duty injury proceeding in light of the U.S. Court of Appeals for the Federal Circuit's decision in Sweet Harvest Foods v. U.S. (NURA USA v. United States, CIT Consol. # 24-00182).
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In Sweet Harvest, CAFC affirmed the International Trade Commission's affirmative critical circumstances finding "under the same legal framework that applies to this case," the government said. In the decision, the court said the statute requires the Commerce Department and the ITC to make two separate findings before retroactive duties can be enforced (see 2510150032).
Commerce must first find whether there have been "massive imports" of the goods over a "relatively short period," then the ITC must find whether the imports made in the critical circumstances period are "likely to undermine seriously the remedial effect" of the AD/CVD orders. There's no requirement that the ITC also make a "massive imports" finding, the U.S. said.
The Federal Circuit in Sweet Harvest also said that "regardless of whether a significant increase in subject import volume during the post-petition period was 'stockpiled' by importers as inventory or sold to purchasers, it can still seriously undermine the remedial effect of the order." This finding is in line with the commission's position in this case that whether the goods are held in inventory or immediately shipped to purchasers, "a significant post-petition increase in subject import volume can ‘seriously undermine the remedial effect of the order.’”
Lastly, the CAFC said the ITC based its critical circumstances finding in part on continued underselling by "wide margins" during the post-petition period "rather than any increase in underselling margins." The U.S. said this holding is "consistent with the Commission’s position in this case that it is not required to find that underselling intensified during the post-petition period and that it reasonably concluded that the continuation of significant underselling at wide margins was sufficient to drive the post-petition increase in subject import volume."
In the suit at issue, importer NURA and various Chinese exporters contested the ITC's affirmative critical circumstances finding in investigations on Chinese-origin pea protein, arguing that the commission was specifically required to find that subject imports "massively" increased after the petitions were filed (see 2505290001).