Pea Protein Importers, Exporters Say Critical Circumstances Finding Flawed

Exporters led by Jianyuan International also supported their own motion challenging the use of five-month comparison periods instead of six-month periods.

In defending its finding, the commission has argued that, under the law governing critical circumstances analyses, the Commerce Department is tasked with determining whether there have been “massive imports” of subject merchandise over a period of time -- a surge -- while the ITC, in contrast, is obligated to decide whether the imports analyzed by Commerce will reduce the remedial impact of antidumping and countervailing duty orders (see 2511030014). It denied that its affirmative circumstances finding was based in any way on Commerce’s.

But, if that were the case, Commerce and the ITC would be analyzing different import data, Nura said. Each collects its own information, it said, meaning the ITC can’t “focus specifically on the imports that Commerce has found to be ‘massive.’” The agency has to determine for itself whether a surge occurred, it said.

This was especially true in its pea protein investigation, as Commerce’s finding that imports of subject merchandise surged was based on adverse facts available, Nura said. It also was demonstrated by the fact that the ITC and Commerce looked at different pre-petition and post-petition periods, the importer said; Commerce used a six-month comparison period, while the ITC used a five-month period.

Jianyuan, meanwhile, again said in its brief that the ITC was wrong to use a shorter comparison period -- five months instead of six. The ITC said in its response to Nura's motion for judgment that it did so because Commerce imposed provisional duties partway through December 2023, so using that month’s data would have resulted in distorted results (see 2509290056).

But using five-month periods resulted in even greater distortion, Jianyuan argued. The provisional duties were imposed on Dec. 18, the exporter said. Excluding December meant excluding 17 days of data, something “directly contrary to the ITC’s position in this case.”

It is also contrary to the ITC’s own practice, the exporter said. Citing the injury investigation into polyethylene terephthalate resin from Canada, China, India and Oman, it said the commission will use five-month comparison periods only when Commerce’s preliminary determination is “published either early in the omitted month or, at minimum, in the first part of that month.” In that injury investigation, the ITC refused to use five-month comparison periods when a preliminary determination was published on the 16th of the month, Jianyuan said.

It claimed the ITC and defendant-intervenor Puris Proteins were relying on “a single additional investigation from nearly a decade ago,” an “outlier,” in which the ITC used five-month comparison periods when a preliminary determination was published on the 22nd day of a month.

“This unreasoned practice appears results-oriented in that the shorter period here provides import data more supportive of the Commission’s critical circumstances finding,” it said.

The exporter also said the ITC’s conclusion regarding volume in its critical circumstances finding was lacking. The commission based its finding on an unusually low import volume increase, Jianyuan said. It did so with the justification that the increase occurred “from a very large base,” but that “new standard” wasn’t fair to pea protein exporters from China who had been selling to the United States before the establishment of a domestic industry, it said.