NURA USA, LLC v. United States

Slip Op. 26-85
UNITED STATES COURT OF INTERNATIONAL TRADE
NURA USA, LLC,
Plaintiff,
and
JIANYUAN INTERNATIONAL CO., LTD.,
et al.,
Consolidated Plaintiffs,
v.
UNITED STATES,
Defendant,
and
PURIS PROTEINS, LLC,
Defendant-Intervenor.
Before: Lisa W. Wang, Judge
Consol. Court No. 24-00182
PUBLIC VERSION
OPINION AND ORDER
[Denying Plaintiff’s and Consolidated Plaintiffs’ motions for judgment on the agency
record and sustaining the United States International Trade Commission’s final
affirmative critical circumstances determination.]
Dated:
Stephanie E. Hartmann, Wilmer Cutler Pickering Hale and Dorr LLP, of Washington,
D.C., argued for Plaintiff Nura USA, LLC. With her on the brief was David J. Ross.
Ned H. Marshak, Grunfeld, Desiderio, Lebowitz, Silverman and Klestadt LLP, of New
York, NY argued for Consolidated Plaintiffs Jianyuan International Co., Ltd., et al. With
him on the brief were Jordan C. Kahn and Ruting Chen.
Spencer Toubia, Attorney-Advisor, Office of the General Counsel, U.S. International
Trade Commission, of Washington D.C., argued for Defendant United States. With him
August 5, 2026
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on the brief were Margaret D. Macdonald, General Counsel, and Karl von Schriltz,
Assistant General Counsel.
Adam H. Gordon, the Bristol Group PLLC, of Washington, D.C., argued for Defendant-
Intervenor Puris Proteins, LLC. With him on the brief were Benjamin J. Bay and Scott D.
McBride.
Wang, Judge: This action stems from the final affirmative critical circumstances
determination by the United States International Trade Commission (“Commission”) in
its investigations of high protein content (“HPC”) pea protein from the People’s Republic
of China (“PRC”). Certain Pea Protein from China, 89 Fed. Reg. 67,671 (ITC Aug. 21,
2024), PR 126; Certain Pea Protein from China, Inv. Nos. 701-TA-692 and 731-TA-
1628 (Final), USITC Pub. 5529 (Aug. 2024) (“Public Views”) at 3, PR 123. Nura USA,
LLC (“Plaintiff”), a domestic importer of the subject merchandise, moves for judgment
on the agency record pursuant to CIT Rule 56.2. Pl.’s Mot. for J. on Agency R. (“Pl.’s
Mot.”) at 1, ECF No. 66. Jianyuan International Co., Ltd., Shandong Yuwang Ecological
Food Industry Co., Ltd., Linyi Yuwang Vegetable Protein Co., Ltd., Yantai Oriental
Protein Tech Co., Ltd., and Jiujiang Tiantai Food Co., Ltd. (collectively, “Consolidated
Plaintiffs”), PRC producers of the subject merchandise, move separately for judgment
on the agency record pursuant to CIT Rule 56.2. Consol. Pls.’ Mot. for J. on Agency R.
(“Consol. Pls.’ Mot.”) at 7, ECF No. 44; see also Jianyuan International Co., Ltd. et al. v.
United States, Court No. 24-00184, Consol. Pls.’ Compl., ECF No. 11.
The court granted Plaintiff’s and Consolidated Plaintiffs’ joint motion to
consolidate both actions into one case on December 20, 2024. Order Granting Consent
Mot. to Consolidate Cases, ECF No. 30 (consolidating Court No. 24-00184 with this
case).
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PUBLIC VERSION
Plaintiff and Consolidated Plaintiffs challenge the Commission’s final affirmative
critical circumstances determination as to subject imports of certain pea protein from the
PRC. Pl.’s Mot. at 2; Consol. Pls.’ Mot. at 1.
For the following reasons, Plaintiff’s and Consolidated Plaintiffs’ motions for
judgment on the agency record are denied.
BACKGROUND
On July 12, 2023, Puris Proteins, LLC (“Puris”), a domestic producer of the
subject merchandise, filed petitions for the imposition of antidumping duties (“AD”) and
countervailing duties (“CVD”) on HPC pea protein from the PRC. Pl.’s Compl. ¶ 5;
Public Views at 3. The Commission subsequently commenced its preliminary
investigations of the subject merchandise. Certain Pea Protein From China; Institution
of Antidumping and Countervailing Duty Investigations and Scheduling of Preliminary
Phase Investigations, 88 Fed. Reg. 45,924 (ITC July 18, 2023), PR 11. On September
1, 2023, the Commission found “a reasonable indication that an industry in the United
States is materially injured by reason of imports of certain pea protein from China” in the
AD and CVD investigations. Certain Pea Protein From China, 88 Fed. Reg. 60,495 (ITC
Sept. 1, 2023), PR 54.
On November 9, 2023, Puris alleged that critical circumstances existed regarding
the importation of HPC pea protein from the PRC. Def.’s Mem. in Opp. to Pl.’s Mot. for
J.on Agency R. (“Def.’s Mem.”), ECF No. 52 at 9–10. Critical circumstances involve
provisions of the statute that allow for an earlier suspension and/or applicability date to
address the potential for importers’ harming of domestic suppliers through a surge of
imports during the period of the investigation before the United States Department of
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Commerce’s (“Commerce”) publication of its preliminary determination. An affirmative
finding of critical circumstances allows for the retroactive imposition of duties 90 days
prior to the date that provisional duties are first imposed. 19 U.S.C. §§ 1673b(e)(2),
1673d(c)(4), 1671b(e)(2), 1671d(c)(4).
On December 18, 2023, Commerce published its preliminary affirmative
determination for the CVD investigation and “preliminarily [found] that critical
circumstances exist[ed] with respect to imports of subject merchandise ….” Certain Pea
Protein From the People’s Republic of China: Preliminary Affirmative Countervailing
Duty Determination, Preliminary Affirmative Critical Circumstances Determination, and
Alignment of Final Determination with Final Antidumping Duty Determination, 88 Fed.
Reg. 87,403, 87,404 (Dep’t Commerce Dec. 18, 2023). On February 13, 2024,
Commerce issued its preliminary affirmative determination for the AD investigation and
also found that critical circumstances existed with respect to the subject merchandise.
Certain Pea Protein From the People’s Republic of China: Preliminary Affirmative
Determination of Sales at Less Than Fair Value, Preliminary Affirmative Determination
of Critical Circumstances, Postponement of Final Determination, and Extension of
Provisional Measures, 89 Fed. Reg. 10,038 (Dep’t Commerce Feb. 13, 2024).
On March 5, 2024, the Commission began the final phase of its investigations.
Certain Pea Protein From China; Scheduling of the Final Phase of Countervailing Duty
and Antidumping Duty Investigations, 89 Fed. Reg. 15,895 (ITC Mar. 5, 2024), PR 77.
Plaintiff and Consolidated Plaintiffs participated in the proceedings. Public Views at 3.
On July 5, 2024, Commerce issued its final determination in the CVD
investigation, concluding that it “continues to find that critical circumstances exist” with
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respect to subject imports. Certain Pea Protein From the People’s Republic of China:
Final Affirmative Countervailing Duty Determination and Final Affirmative Critical
Circumstances Determination, 89 Fed. Reg. 55,557 (Dep’t Commerce July 5, 2024).
Commerce made a final affirmative determination in the AD investigation and also
concluded that critical circumstances existed for subject imports. Certain Pea Protein
From the People’s Republic of China: Final Affirmative Determination of Sales at Less
Than Fair Value and Final Affirmative Critical Circumstances Determination, 89 Fed.
Reg. 55,559 (Dep’t Commerce July 5, 2024).
On August 21, 2024, the Commission issued its final determination. Public Views
at 3. The Commission determined that the domestic industry was “materially injured by
reason of imports of certain HPC pea protein found by [Commerce] to be sold in the
United States at less than fair value and subsidized by the government of China.” Id. In
addition, the Commission concluded that “critical circumstances exist with respect to
imports of HPC pea protein from China that are subject to Commerce’s final affirmative
critical circumstances determinations.” 1 Id.
Following the Commission’s final affirmative determination, Commerce issued
the relevant AD and CVD orders. Certain Pea Protein From the People’s Republic of
1 Commissioner Rhonda K. Schmidtlein made a negative determination with respect to
critical circumstances and issued dissenting views. Public Views at 3, n.4.
Commissioner David S. Johanson found that the domestic industry was threatened with
material injury by reason of subject imports from the PRC, and as such, did not reach
the issue of critical circumstances. Id. at 3, ns.3–4. That is because a “threat of material
injury” determination provides only for prospective relief, and an affirmative critical
circumstances determination would provide retroactive relief. See Suramerica De
Aleaciones Laminadas, C.A. v. United States, 44 F.3d 978, 984 (Fed. Cir. 1994).
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China: Antidumping and Countervailing Duty Orders, 89 Fed. Reg. 68,390 (Dep’t
Commerce Aug. 26, 2024).
Plaintiff appealed the Commission’s final affirmative critical circumstances
determination on September 25, 2024. Pl.’s Am. Summons, ECF No. 17. Consolidated
Plaintiffs also appealed the determination on September 25, 2024. Jianyuan
International Co., Ltd. et al. v. United States, Court No. 24-00184, Consol. Pls.’
Summons, ECF No. 1. The court consolidated the cases on December 30, 2024. Order
Granting Consent Mot. to Consolidate Cases.
On May 27, 2025, Plaintiff and Consolidated Plaintiffs filed their respective
motions for judgment on the agency record. Pl.’s Mot.; Consol. Pls.’ Mot. On September
24, 2025, the Commission filed its response. Def.’s Mem. On October 8, 2025,
Defendant-Intervenor filed its response. Def. Int.’s Resp. Br. (“Def. Int.’s Resp.”), ECF
No. 56. On December 3, 2025, Plaintiff and Consolidated Plaintiffs filed their respective
replies. Pl.’s Reply in Supp. of Mot. for J. on Agency R. (“Pl.’s Reply”), ECF No. 61;
Consol. Pls.’ Reply in Supp. of Mot. for J. on Agency R. (“Consol. Pls.’ Reply”), ECF No.
59.Oral arguments were held on March 2, 2026. ECF No. 74.
JURISDICTION & STANDARD OF REVIEW
The court has jurisdiction over this action. 28 U.S.C. § 1581(c) (“The Court of
International Trade shall have exclusive jurisdiction of any civil action commenced
under section 516A or 517 of the Tariff Act of 1930.”). This action is commenced under
19 U.S.C. §§ 1516a(a)(2)(A)(i)(II) and (a)(2)(B)(i).
The court will uphold the Commission’s final critical circumstances
determinations unless they are “unsupported by substantial evidence on the record, or
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otherwise not in accordance with law.” 19 U.S.C. § 1516a(b)(1)(B)(i); Sweet Harvest
Foods v. United States, 155 F.4th 1355, 1362 (Fed. Cir. 2025).
The Supreme Court has specified that “substantial evidence is more than a mere
scintilla. It means such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Universal Camera Corp. v. NLRB, 340 U.S. 474, 477
(1951) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). When
determining whether an agency action is supported by substantial evidence, the court
“asks whether a reasonable fact finder could have arrived at the agency's decision ….”
In re Gartside, 203 F.3d 1305, 1312 (Fed. Cir. 2000).
In reviewing the Commission’s critical circumstances determination, the court
“may not reweigh the evidence or substitute its own judgment for that of the agency.”
Usinor v. United States, 342 F. Supp. 2d 1267, 1272 (CIT 2004); see also Matsushita
Elec. Indus. Co. v. United States, 750 F.2d 927, 936 (Fed. Cir. 1984); Hynix
Semiconductor, Inc. v. United States, 431 F. Supp. 2d 1302, 1306 (CIT 2006). The
Commission “must examine the relevant data and articulate a satisfactory explanation
for its action including a rational connection between the facts found and the choice
made.” Timken United States Corp. v. United States, 421 F.3d 1350, 1355 (Fed. Cir.
2005) (quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S.
29, 43 (1983)). Thus, “even if it is possible to draw two inconsistent conclusions from
evidence in the record, such a possibility does not prevent [the Commission's]
determination from being supported by substantial evidence.” Nippon Steel Corp. v.
United States, 458 F.3d 1345, 1352 (Fed. Cir. 2006) (quoting Am. Silicon Techs. v.
United States, 261 F.3d 1371, 1376 (Fed. Cir. 2001)).
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The court “must consider the record as a whole, including that which fairly
detracts from its weight.” Id. at 1351. However, “when the totality of the evidence does
not illuminate a black-and-white answer to a disputed issue, it is the role of the expert
factfinder — here the majority of the Presidentially-appointed, Senate-approved
Commissioners — to decide which side’s evidence to believe.” Id. at 1359. Ultimately,
the court will “affirm a Commission determination if it is reasonable and supported by
the record as a whole, even if some evidence detracts from the Commission’s
conclusion.” Altx, Inc. v. United States, 370 F.3d 1108, 1121 (Fed. Cir. 2004) (quoting
Atlantic Sugar, Ltd. v. United States, 744 F.2d 1556, 1562–64 (Fed. Cir. 1984)).
DISCUSSION
Plaintiff and Consolidated Plaintiffs challenge the following elements of the
Commission’s critical circumstances determination as unsupported by substantial
evidence or otherwise not in accordance with law: (1) the Commission’s treatment of
import volumes; (2) the Commission’s choice of an appropriate period of comparison;
(3) the Commission’s consideration of inventory data; and (4) the Commission’s finding
of critical circumstances based on “any other circumstances” indicating that the
remedial effect of the AD and CVD orders were likely to be seriously undermined.
Defendant and Defendant-Intervenor maintain that all challenged elements of the
Commission’s determination are supported by substantial evidence and otherwise in
accordance with law. Each challenge is addressed in turn.
I. 	The Commission’s Treatment of Import Volumes in its Critical
Circumstances Determination Was Lawful
Plaintiff and Consolidated Plaintiffs challenge three elements of the
Commission’s treatment of import volumes. Plaintiff first claims that the relevant
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statutory provisions require the Commission to make an independent finding as to
whether subject imports massively increased or surged in the post-petition period. Pl.’s
Mot. at 14–15. Plaintiff further argues that the Commission departed from its established
practice by failing to make an independent finding as to whether subject imports
massively increased or surged. Id. at 21. Finally, Plaintiff and Consolidated Plaintiffs
make arguments that rely on the proposition that the Commission improperly
considered the timing and volume of subject imports. Id. at 3, 22; Consol. Pl.’s Mot. at
30–32.
A. 	Statutory Requirements
The first issue before the court is whether the Commission, as part of its critical
circumstances determination, is statutorily required to make a finding independent from
Commerce that there have been massive imports of subject merchandise over a
relatively short period.
Plaintiff argues that the Commission’s critical circumstances determination is not
in accordance with law because “the Commission failed to make the requisite statutory
finding that subject imports from China massively increased in the post-petition period.”
Pl.’s Mot. at 13. Plaintiff claims that because “the statute is silent as to what findings
regarding timing and volume of imports should lead the Commission to determine that
critical circumstances exist[,] … when considering ‘the timing and volume’ of the
imports, the Commission must make a determination as to whether imports have
‘massively increased’ or ‘surged’ prior to the suspension of liquidation for subject
imports ….” Id. at 14–15 (citing to the Statement of Administrative Action to the Uruguay
Round Trade Agreements Act, H. Rep. No. 103-316, vol. I (1994) (“SAA”)).
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Defendant argues that “[t]he statute imposes no requirement that the
Commission use the terms ‘massively increased’ or ‘surged’ in considering the ‘timing
and volume of the imports,’ and the Commission has never recognized such a
requirement ….” Def.’s Mem. at 38. 2
The consideration of the timing and volume of subject imports is a fact-specific
inquiry, and as such, the court evaluates the Commission’s findings under the
substantial evidence standard. See 19 U.S.C. § 1516a(b)(1)(B)(i). In evaluating the
relevant statutory language, the court is required “to exercise [its] independent judgment
in deciding whether an agency has acted within its statutory authority ….” Loper Bright
Enters. v. Raimondo, 603 U.S. 369 (2024). The court must use the “relevant interpretive
tools” to reach “the best reading of the statute and resolve … ambiguity.” Id. at 373.
Those interpretive tools include the canons of statutory construction and legislative
history. Timex V.I. v. United States, 157 F.3d 879, 882 (Fed. Cir. 1998) (“Beyond the
statute’s text, those ‘tools’ [of statutory construction] include the statute’s structure,
canons of statutory construction, and legislative history.”); Metro. Area EMS Auth. v.
Sec’y of Veterans Affs., 122 F.4th 1339, 1345 (Fed. Cir. 2024).
For critical circumstances determinations, the responsibilities of the Commission
and Commerce are bifurcated between two distinct sections of the relevant statute.
Specifically, 19 U.S.C. § 1673d(b)(4)(A)(i) governs the Commission’s standard for
consideration of the “retroactive application” of duties (i.e., critical circumstances) in AD
investigations:
2 For this and other issues, Defendant-Intervenor largely echoes Defendant’s
arguments. See Def. Int.’s Resp.
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If the finding of the administering authority under subsection (a)(3) is
affirmative, then the final determination of the Commission shall include a
finding as to whether the imports subject to the affirmative determination
under subsection (a)(3) are likely to undermine seriously the remedial effect
of the antidumping duty order to be issued under [section 1673e].
19 U.S.C. § 1671d(b)(4)(A)(i) contains the same operative language regarding
the Commission’s duty to consider whether imports subject to a CVD investigation are
“likely to undermine seriously the remedial effect of the countervailing duty order to be
issued under section 1671e of this title.”
The relevant statute further instructs that, in making such determinations, the
Commission shall consider, “among other factors it considers relevant”:
(I) the timing and the volume of the imports,
(II) a rapid increase in inventories of the imports, and
(III) any other circumstances indicating that the remedial effect of the
[AD]/[CVD] order will be seriously undermined.
19 U.S.C. § 1673d(b)(4)(A)(ii); see 19 U.S.C. § 1671d(b)(4)(A)(ii).
Separately, 19 U.S.C. § 1673d(a)(3) governs Commerce’s responsibility for
critical circumstances determinations in AD investigations and provides that:
If the final [antidumping] determination of the administering authority is
affirmative, then that determination, in any investigation in which the
presence 	of 	critical 	circumstances 	has 	been 	alleged 	under 	[section
1673b(e)], shall also contain a finding of whether—
(A)
(i) there is a history of dumping and material injury by reason of
dumped imports in the United States or elsewhere of the subject
merchandise, or
(ii) the person by whom, or for whose account, the merchandise was
imported knew or should have known that the exporter was selling
the subject merchandise at less than its fair value and that there
would be material injury by reason of such sales, and
(B) there have been massive imports of the subject merchandise over a
relatively short period.
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The relevant statutory provision for CVD investigations similarly requires Commerce, in
its critical circumstances analyses, to determine whether “there have been massive
imports of the subject merchandise over a relatively short period.” 19 U.S.C.
§ 1671d(a)(2)(B).
The statutory structure is clear. 19 U.S.C. §§ 1673d(a)(3)(B) and 1671d(a)(2)(B)
identify the responsibilities of the “administrating authority” (i.e., Commerce) in making
critical circumstances determinations. In separate subparts, 19 U.S.C. §§ 1673d(b)(4)
and 1671d(b)(4) identify the independent responsibilities of the Commission in
determining the appropriateness of the retroactive application of duties. In other words,
subsection (a) of sections 1673d and 1671d relates only to Commerce’s responsibilities
while subsection (b) of sections 1673d and 1671d relates only to the Commission’s
responsibilities. See SAA at 876 (“If Commerce determines that critical circumstances
exist, then the Commission determines whether retroactive duties are necessary to
prevent recurrence of material injury.”); see also Antonin Scalia & Bryan A. Garner,
Reading Law: The Interpretation of Legal Texts 156 (2012) (“Material within an indented
subpart relates only to that subpart ….”).
The United States Court of Appeals for the Federal Circuit (“Federal Circuit”) has
explained the distinct responsibilities of the Commission and Commerce in these
instances:
The pertinent statutory provision, 19 U.S.C. § 1673d(b)(4)(A)(i), kicks in [for
the Commission] if Commerce has made an affirmative determination of
critical circumstances under subsection (a)(3) of section 1673d … finding in
particular that “there have been massive imports of the subject merchandise
over a relatively short period,” id. § 1673d(a)(3)(B). If Commerce has made
that determination, then the Commission is to determine whether “the
imports subject to the affirmative determination under subsection (a)(3)
are
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likely to undermine seriously the remedial effect of the antidumping duty
order to be issued under section 1673e.” Id. § 1673d(b)(4)(A)(i).
Sweet Harvest, 155 F.4th at 1363 (emphasis added). 3
Plaintiff’s argument that the Federal Circuit never “properly evaluated” the issue
of the Commission’s statutory responsibilities in Sweet Harvest falls flat. Pl.’s Reply at 9.
Similarly, Consolidated Plaintiffs’ argument that Sweet Harvest “confirms the need for
the ITC to find post-petition surges” also fails. Consol. Pls.’ Reply at 11 (citing Sweet
Harvest, 155 F.4th at 1363). These arguments ignore the Federal Circuit’s directive that
it is the responsibility of Commerce, not the Commission, to determine whether “there
have been massive imports of the subject merchandise over a relatively short period.”
Sweet Harvest, 155 F.4th at 1359. Sweet Harvest directly speaks to the bifurcated
responsibilities of Commerce and the Commission. Id. at 1363.
Plaintiff conflates the statutory language governing Commerce’s responsibilities
under subsection (a) of sections 1673d and 1671d with the responsibility of the
Commission to consider “the timing and volume” of imports, but the statute does not
require the Commission to duplicate Commerce’s analysis. 4 See Pl.’s Mot. at 18–22.
3 Given the identical language of 19 U.S.C. §§ 1671d and 1673d as it relates to
“massive imports,” the rationale of the Federal Circuit is equally applicable to CVD
investigations.
4 Plaintiff cites to the SAA in support of its reading that the “the timing and volume” of
imports requires a finding of a massive surge, Pl.’s Mot. at 14–15, but the SAA
reinforces the statute’s directive that it is Commerce’s responsibility to determine if
“there have been massive imports of the subject merchandise over a relatively short
period of time (i.e., a surge of imports) prior to the suspension of liquidation ….” SAA at
876.Only “[i]f Commerce determines that critical circumstances exist, then the
Commission determines whether retroactive duties are necessary to prevent recurrence
of material injury.” Id.
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Rather, the Federal Circuit has made clear that the Commission’s responsibility only
“kicks in” once Commerce has already found that there have been massive imports of
the subject merchandise over a relatively short period. Id. at 1363. Only if Commerce
has made that determination does the Commission need to “consider … the timing and
volume of the imports[.]” Id.; see 19 U.S.C. §§ 1673d(b)(4)(A)(ii)(I), 1671d(b)(4)(A)(ii)(I).
As part of its consideration of timing and volume, the Commission is not required
to make an independent finding regarding a surge of massive imports. There is no
duplicative language of “massive imports” in the statutory sections governing the
Commission’s responsibilities when considering the timing and volume of subject
imports. The Commission thus acted within its statutory authority in refraining from
making an independent determination as to whether there have been massive imports
of subject merchandise over a relatively short period. See Loper Bright Enters., 603
U.S. at 369.
B. 	The Commission’s Previous Critical Circumstances Determinations
The second issue before the court is whether, irrespective of statutory
requirements, the Commission has an established practice of making an independent
finding as to whether there have been massive imports of subject merchandise over a
relatively short period. Only if the Commission has such an established practice would
the court need to determine if the Commission departed from its practice in this
instance.
Plaintiff argues that “[e]ven if the statute permitted the Commission to rely on
Commerce’s finding of ‘massive imports,’ the Majority’s abrupt departure from its
established practice of determining whether subject imports have ‘surge[d]’ or
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‘massively increase[ed]’ required a ‘reasoned explanation’ ….” Pl.’s Mot. at 21 (quoting
Jiaxing Brother Fastener Co. v. Unites States, 380 F. Supp. 3d 1343, 1365 (CIT 2019)).
Defendant counters that “the Commission has never recognized such a
requirement[.]” Def.’s Mem. at 38. Defendant maintains that “[i]n the cases cited by
[Plaintiff], the Commission only discussed increasing imports to determine whether they
seriously undermined the remedial effect of the orders and not in applying any
‘massively increased’ test.” Id. at 37.
The court previously described the criteria that a party must satisfy to show a
departure from an established agency practice:
First, [a party] must demonstrate that an established practice exists. See
Ranchers-Cattlemen Action Legal Found. v. United States, 74 F. Supp. 2d
1353, 1373 (CIT 1999), dismissed per stipulation, 232 F.3d 909 (Fed. Cir.
2000). Second, it must demonstrate a departure from the practice. See DAK
Americas LLC v. United States, 456 F. Supp. 3d 1340, 1356 (CIT 2020).
And third, the party must demonstrate that the departure is insufficiently
explained. See Allegheny Ludlum Corp. v. United States, 346 F.3d 1368,
1373 (Fed. Cir. 2003).
Bluescope Steel, Ltd. v. United States, 719 F. Supp. 3d 1357, 1367 (CIT 2024).
Here, Plaintiff has not demonstrated that the Commission, in its critical
circumstances determinations, has an established practice of making an independent
finding of whether there have been massive imports of subject merchandise over a
relatively short period. The previous critical circumstances determinations cited by
Plaintiff do not amount to an established practice requiring the Commission to engage in
such analysis. In the cases cited by Plaintiff, the Commission’s acknowledgement of a
“massive surge” was not an independent quantitative determination. See Pl.’s Mot. at
15–16. All Plaintiff has shown is that the Commission has, at times, acknowledged
Commerce’s finding of a massive surge, not made its own findings with respect to such
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determinations. See e.g., Coumarin from China, Inv. No. 731-TA-677 (Final), USITC
Pub. 2852 (Feb. 1995) at I-17 (noting that a “large surge” in post-petition imports,
among other factors, showed that retroactive duties were necessary to prevent the
“recurrence of material injury[.]”); see also Cleo Inc. v. United States, 501 F.3d 1291,
1299 (Fed. Cir. 2007) (“[E]ach injury investigation by the Commission is sui generis ….”)
(internal quotations omitted).
Plaintiff has failed to show that the Commission has an established practice of
making an independent finding of massive imports of subject merchandise over a
relatively short period. Bluescope, 719 F. Supp. 3d at 1367 (“[T]here can be no
departure from a practice that does not exist (let alone an unexplained departure)[.]”).
As such, the Commission’s decision not to make an independent finding regarding
massive imports is supported by substantial evidence and otherwise in accordance with
law.
C. 	The Commission’s Consideration of the Timing and Volume of
Subject Imports
The court next turns to whether the Commission’s consideration of the timing and
volume of subject imports is supported by substantial evidence and otherwise in
accordance with law.
Consolidated Plaintiffs argue that the Commission improperly considered the
“timing and volume” of subject imports for a number of reasons. See Consol. Pls.’ Mot.
at 30–32. Namely, Consolidated Plaintiffs claim that: (1) the Commission failed to
consider “the timing and volume of the imports” as a single criterion; (2) the Commission
abused its discretion by developing a new critical circumstances standard that
disadvantages exporters who served the U.S. market before the existence of the
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domestic industry; and (3) the Commission’s finding of critical circumstances based on
a [[ 	]] post-petition volume increase is unsupported by substantial
evidence and improperly deviated from past practice. See Conf. Consol. Pls.’ Mot. for J.
on Agency R. (“Conf. Consol. Pls.’ Mot.”) at 30–32, ECF No. 43; Consol. Pls.’ Mot. at
30–32.
Plaintiff relatedly argues that the Commission’s findings are unsupported by
substantial evidence. Pl.’s Mot. 22–23. Plaintiff maintains that the increase in post-
petition subject import volumes in this case was smaller than the increases in prior
investigations where the Commission found critical circumstances and thus could not
seriously undermine the remedial effect of the orders. Id.
Defendant argues that its analysis was reasonable and supported by substantial
evidence because “while acknowledging the relatively smaller percent increase in post-
petition subject import volume compared to other recent investigations, the Commission
reasonably explained that [the increase] was significant relative to the size of the U.S.
market and sufficient to seriously undermine the remedial effect of the orders.” Def.’s
Mem. at 27–28. Defendant maintains that “the Commission also explained why the
larger percent increases in post-petition subject import volume in other cases did not
mean that those increases were any more substantial.” Id. at 28.
Consolidated Plaintiffs misinterpret the relevant statutory provisions on which
they rely. The statutory language provides that, in critical circumstances determinations,
the Commission “shall consider, among other factors it considers relevant … the timing
and the volume of the imports ….” 19 U.S.C. §§ 1673d(b)(4)(A)(ii)(I),
1671d(b)(4)(A)(ii)(I). The statute does not direct the Commission to structure its analysis
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of the statutory factors in any particular way, nor does it define the phrase “timing and
volume of the imports.” 19 U.S.C. §§ 1673d(b)(4), 1671d(b)(4).
The court previously described the Commission’s broad discretion in considering
the timing and volume of subject imports, noting:
Nothing in 	the 	[Tariff Act 	of 	1930] 	restricts 	the Commission’s broad
discretion to consider data reasonably relevant to determining the “timing
and volume of imports.” Reinforcing this discretion, the Act directs the
agency to consider –“among other factors it considers relevant” – “any other
circumstances indicating that the remedial effect of the [orders] will be
seriously undermined.”
MTD Prods. Inc. v. United States, Slip Op. 2023-34, LEXIS 37, at *4 (CIT Mar. 16,
2023).
Additionally, while “a reviewing court must take into account contradictory
evidence or any evidence in the record that undermines the agency’s finding, the
substantial evidence test does not require that there be an absence of evidence
detracting from the agency’s conclusion, nor is there an absence of substantial
evidence simply because the reviewing court would have reached a different conclusion
based on the same record.” Cleo, 501 F.3d at 1296; see also Qingdao Sea-Line Trading
Co. v. United States, 766 F.3d 1378, 1385 (Fed. Cir. 2014) (“An agency finding may still
be supported by substantial evidence even if two inconsistent conclusions can be drawn
from the evidence.”).
1. 	Consideration of the Timing and Volume of Subject Imports as a
Single Criterion
Here, the Commission analyzed the increase in the volume of subject imports
during the post-petition period. Public Views at 44–46. The Commission explained that
“[s]ubject imports decreased in every month of the five-month pre-petition period and
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were higher in three months of the post-petition period (August, September, and
November) than in any month of the pre-petition period.” Public Views at 46.
Specifically, the Commission pointed to the fact that “[s]ubject import volume was higher
in September 2023, at [[ 	]] pounds, than in any other month in 2023, and
[[ 	]] percent higher than in the peak month of the pre-petition period.” Conf. Views
at 64–65; Public Views at 46.
Further, the Commission expressly explained:
[T]he Commission is to consider both the timing and the volume of imports.
19 U.S.C. §§ 1671d(b)(4)(A)(ii), 1673d(b)(4)(A)(ii). We have considered
both the timing and the volume of imports subject to Commerce’s affirmative
critical circumstances determination, both in absolute terms and relative to
apparent U.S. consumption. As reviewed above, the timing and volume of
imports 	subject 	to 	Commerce’s 	affirmative 	critical 	circumstances
determination, together with the rise in inventories and other circumstances,
indicate 	that 	the 	imports 	subject 	to 	Commerce’s 	affirmative 	injury
determination are likely to seriously undermine the remedial effects of the
order
Public Views at 45, n.260 (emphasis in original). Based on this explanation, the
Commission considered both the timing and the volume of subject imports.
The Commission also addressed arguments that would have detracted from its
findings. Specifically, the Commission explained that “the percentage increase in post-
petition imports is less than in some other recent investigations,” but found that the
“increase was from a very large base – a share of more than [[ 	]] of the entire
market.” Conf. Views at 62–63; Public Views at 44–45. It noted that:
While the post-petition increase in the post-petition period was [[ 	]] than
the post-petition increase in the recent affirmative critical circumstances
determination in Mattresses with respect to imports from Burma (101.6
percent), within the context of the overall U.S. market, the post-petition
increase 	in 	the 	volume 	of 	imports 	in 	this 	case 	was 	[[
]] than in Mattresses, which involved a post-petition increase in
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imports equivalent to only 2.3 percent of apparent U.S. consumption in the
final year of the POI [period of investigation].
Conf. Views at 62, n.257 (citing Mattresses from Bosnia and Herzegovina, Bulgaria,
Burma, Italy, Philippines, Poland, Slovenia, and Taiwan, Inv. Nos. 731-TA-1629-
1631, 1633, 1636-1638, and 1640 (Final), USITC Pub. 5520 (June 2024)
(“Mattresses”)); Public Views at 44, n.257.
In light of these explanations, the Commission’s findings are supported by
“evidence as a reasonable mind might accept as adequate to support a conclusion.”
Universal Camera, 340 U.S. at 477.
2. 	U.S. Market Share Considerations
The Commission also addressed the “already-dominant position of subject
imports” and explained that “[t]he increase in the volume of subject imports in the post-
petition period was significant, particularly given how large the volume of subject
imports was even before the post-petition increase in that volume, within the context of
the overall U.S. market.” Public Views at 44. Contrary to Consolidated Plaintiffs’
arguments, such an explanation does not impose a new standard or criteria but
addresses the specific circumstances of the market. See Cleo, 501 F.3d at 1299.
Plaintiff further argues that the Commission “unreasonably ignored evidence of
pricing patterns for subject imports that indicated imports in the post-petition period
were unlikely to undermine seriously the remedial effects of the [orders] ....” Pl.’s Mot. at
3. Plaintiff claims that the Commission failed to “meaningfully address Plaintiff’s
arguments that increased consumer demand explained the timing increase for the
increase in subject imports.” Id.
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There is a difference between ignoring record evidence, as Plaintiff argues, and
disagreeing with the Commission’s determination of the probative value and relevance
of that evidence. See Seah Steel VINA Corp. v. United States, 950 F.3d 833, 842–43
(Fed. Cir. 2020). This situation falls into the latter category.
Here, the Commission explained that, while U.S. demand decreased, subject
imports were significantly higher during the relevant comparison period. Conf. Views at
23–24; Public Views at 17–18. Specifically, the Commission found that:
[R]esponding domestic producers and a majority of purchasers reported
that the HPC pea protein market was subject to seasonality, with contracting
occurring in the third and fourth quarters of the harvest year. In light of this,
we find it instructive that the volume of reported subject import sales of
pricing products was [[ 	]] percent higher in the second half of 2023 than
in the second half of 2022, even though apparent U.S. consumption was
lower in 2023 than in 2022.
Conf. Views at 64, n.265; Public Views at 46, n.265.
The Commission further supported its finding, explaining that “[g]iven importers’
reported 45- and 67-day lead times for sales made from foreign inventories and
produced to order, respectively, subject imports arriving in September would have been
ordered immediately following the filing of the petitions in July … the effect of the post-
petition increase in subject imports was to create a stockpile of imports prior to the
imposition of provisional duties, as reflected by the [[ 	]] percent increase in end-of-
period inventories of subject merchandise between the pre- and post-petition periods.”
Conf. Views at 65; Public Views at 46.
Based on this explanation, the Commission’s consideration of the U.S. market
share and pricing patterns of subject imports is supported by substantial evidence and
otherwise in accordance with law.
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3. 	Post-Petition Volume Considerations
Lastly, Consolidated Plaintiffs claim that the post-petition volume increase in this
case “does not [[ 	]] approaching the increases in import volumes in cases
where the Commission found critical circumstances.” 5 Conf. Consol. Pls.’ Mot. at 24.
Plaintiff similarly argues that the Commission’s critical circumstances determination is
unsupported by substantial evidence “because the record evidence does not show a
massive increase in subject imports that would meet the high standard of imports
capable of seriously undermining the remedial effect of the [o]rders.” Pl.’s Mot. at 22.
The Commission’s consideration of volume increases in the post-petition period
satisfies the requirements of the substantial evidence standard. Conf. Views at 30–31;
Public Views at 23. Here, the Commission found that subject import volume increased
[[ 	]] percent between the pre- and post-petition periods despite the [[ 	]] percent
decline in apparent U.S. consumption between 2022 and 2023. Conf. Views at 64–65;
Public Views at 46; see Conf. Views at 41, n.163 (noting that U.S. demand for HPC pea
protein is “moderately inelastic”); Public Views at 30, n.163. The Commission further
explained that the increase in this case was “significant, particularly given how large the
volume of subject imports was even before the post-petition increase in that volume,
within the context of the overall U.S. market.” Public Views at 44.
Given these statements, the parties’ arguments that the Commission’s
conclusion is unsupported by record evidence fall flat. Consolidated Plaintiffs and
5 Consolidated Plaintiffs couch this argument as a practice issue but have failed to
demonstrate that the Commission has an established practice of using a quantitative
minimum of post-petition increases in subject import volume to justify affirmative critical
circumstances determinations. See Bluescope, 719 F. Supp. 3d at 1367.
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Plaintiff may be dissatisfied as to the weight assigned to certain evidence, but such a
responsibility “falls exclusively within the authority of the Commission.” Nippon Steel
Corp., 458 F.3d at 1358. The court will not disturb such calls. See United States Steel
Group – a Unit of USX Corp. v. United States, 96 F.3d 1352, 1362 (Fed. Cir. 1996). As
such, the Commission’s findings regarding the timing and volume of subject imports are
supported by substantial evidence and otherwise in accordance with law.
II. 	The Remaining Challenged Elements of the Commission’s Critical
Circumstances Determination Are Lawful
Plaintiff and Consolidated Plaintiffs challenge three additional elements of the
Commission’s critical circumstances determination. Consolidated Plaintiffs claim that
the Commission improperly deviated from its established practice by employing a five-
month comparison period. Consol. Pls.’ Mot. at 20. Further, both parties argue that the
Commission erred in its consideration of inventory data. See Pl.’s Mot. at 25, 28;
Consol. Pls.’ Mot. at 35–36. Finally, both parties raise claims that the Commission
improperly considered “any other circumstances” indicating that the remedial effect of
the orders were likely to be undermined. See Pl.’s Mot at 28, 32; Consol. Pls.’ Mot. at
15.
A. 	The Commission’s Choice of an Appropriate Period of Comparison
The next issue before the court is whether the Commission has an established
practice of employing six-month comparison periods for its critical circumstances
analyses when a preliminary determination issued by Commerce falls within this six-
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month period. 6 Only if the Commission has such an established practice would the court
need to determine if the Commission departed from its practice in this instance.
Bluescope, 719 F. Supp. 3d at 1367.
Consolidated Plaintiffs argue that “[t]he Commission’s affirmative critical
circumstances analysis improperly deviated from practice by employing a five-month
comparison period ….’” Consol. Pls.’ Mot. at 20. Consolidated Plaintiffs assert that
“[t]here was no basis to shorten the full six-month comparison period that the
Commission ordinarily uses in its critical circumstances analysis because the
preliminary CVD publication published on the 18th day of the month.” Id. at 13.
Consolidated Plaintiffs further claim that “[i]n the Commission’s recent cases where a
shorter than six-month comparison period was used, the reasons were clear – petitions
were filed at the end of the very end of a month and Commerce’s preliminary
determinations were issued at the beginning of a month within the six-month period.” Id.
at 21.
Defendant argues that “[t]he Commission’s selection of five-month comparison
periods here was consistent with its approach in past cases … the Commission has
relied on comparison periods shorter than six months ‘when Commerce’s preliminary
6 The issue of whether the Commission has an established practice of employing six-
month comparison periods for its critical circumstances analyses, as a general matter, is
not before the court.
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determination applicable to the country at issue fell within the six-month post-petition
period.’” Def.’s Mem. at 21–22.
The threshold requirement for showing a departure from an established agency
practice is first that “an established practice exists.” Bluescope, 719 F. Supp. 3d at
1367. Here, Consolidated Plaintiffs have failed to show that the Commission has an
established practice of using six-month comparison periods for its critical circumstances
analyses when preliminary determinations issued by Commerce fall within that six-
month period.
Contrary to Consolidated Plaintiffs’ assertions, the Commission has previously
employed less than six-month comparison periods when Commerce’s preliminary
determinations were issued during the sixth month of the post-petition period,
regardless of whether the preliminary determination was published in the latter half of
that month. 7 See Carbon and Alloy Steel Cut-to-Length Plate from Brazil, South Africa,
and Turkey, Inv. Nos. 731-TA-1319, 1326, and 1328 (Final), USITC Pub. 4664 (Jan.
2017) at 48 (employing a five-month comparison period when Commerce’s preliminary
determination fell on the 22nd day of the sixth month of the post-petition period); Certain
Hot-Rolled Steel Flat Products from Australia, Brazil, Japan, Korea, the Netherlands,
Turkey, and the United Kingdom, Inv. Nos. 701-TA-545-547 and 731-TA-1291-1297
(Final), USITC Pub. 4638 (Sep. 2016) at 49 (employing a five-month comparison period
when Commerce’s preliminary determination fell on the 15th day of the sixth month).
7 Consolidated Plaintiffs themselves acknowledge that “[t]he Commission has used a
shorter comparison period in instances where Commerce’s preliminary determination
fell within the six-month comparison period.” Consol. Pls.’ Mot. at 21.
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Having failed to demonstrate an established practice, the court evaluates the
Commission’s chosen comparison period for reasonableness. See Coal. of Gulf Shrimp.
Indus. v. United States, 71 F. Supp. 3d 1356, 1365 (CIT 2015) (“When evaluating
challenges to the [Commission’s] methodology, the court will affirm the chosen
methodology as long as it is reasonable.”); see also United States Steel Group, 96 F.3d
at 1357.
Here, the Commission sufficiently explained why it chose a comparison period
shorter than six months. Specifically, it noted that although it “frequently relies on six-
month comparison periods, [the Commission] has relied on shorter periods when
Commerce’s preliminary determination applicable to the country at issue fell within the
six-month post-petition period.” Public Views at 43. The Commission further explained,
“[t]hat situation arises here as Commerce’s preliminary critical circumstance
determination with respect to the countervailing duty investigation was rendered on
December 18, 2023.” Id.
Such an explanation is reasonable, supported by substantial evidence and
otherwise in accordance with law. As such, the court will not disturb the Commission’s
choice of a five-month comparison period. See Nucor Corp. v. United States, 414 F.3d
1331, 1337 (Fed. Cir. 2005) (“[T]he Commission has broad discretion to choose the
most appropriate period of time for its investigation ….”).
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B. 	The Commission’s Consideration of Import Inventories
The next issue before the court is whether the Commission’s consideration of
subject import inventories is supported by substantial evidence and otherwise in
accordance with law. See 19 U.S.C. §§ 1673d(b)(4)(A)(ii)(II), 1671d(b)(4)(A)(ii)(II).
Consolidated Plaintiffs argue that the Commission “improperly found critical
circumstances based on inventory data …” for several reasons. Consol. Pls.’ Mot. at 35.
Namely, Consolidated Plaintiffs claim that: (1) “the Commission’s finding that the effect
of the post-petition increase in subject imports was to create a stockpile of imports prior
to the imposition of provisional duties is unsupported by substantial evidence on the
record”; (2) “the Commission ignored the fact that importers’ U.S. inventory levels at the
end of 2023 were lower than each of the prior years of the POI”; and (3) the
Commission ignored the statutory requirement that “the increase must be ‘rapid’ to
support an affirmative determination.” 8 Id. at 35–36 (internal quotations omitted).
Relatedly, Plaintiff argues that the Commission’s determination is unsupported by
substantial evidence and otherwise not in accordance with law because the
8 Consolidated Plaintiffs refurbish a previous argument, claiming that “the Commission
impermissibly deviated from its established practice by using a relatively modest post-
petition increase to justify finding critical circumstances.” Conf. Consol. Pls.’ Mot. at 32;
Consol. Pls.’ Mot. at 32. Consolidated Plaintiffs have failed to show that the Commission
sets a minimum amount of post-petition increases in subject import inventory levels
when making a critical circumstances determination. See Bluescope, 719 F. Supp. 3d at
1367. Here, the Commission recognized that the increase was less than in other
investigations and explained its findings. Specifically, the Commission stated that the
increase in post-petition inventory levels was significant within the context of the overall
U.S. market. Conf. Views at 62, n.257; Public Views at 44, n.257. Such an explanation
is reasonable and supported by substantial evidence.
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Commission “did not make the statutorily required finding that inventories of subject
imports rapidly increased during the post-petition period ….” Pl.’s Mot. at 25. Plaintiff
points to “the absence of record evidence demonstrating rapidly increasing inventories,”
asserting that the Commission “was required to consider this evidence and to explain
how it nevertheless determined that subject imports were likely to seriously undermine
the remedial effect of the [o]rders.” Id. at 28.
Defendant argues that “Plaintiffs incorrectly treat the statutory factor ‘any rapid
increase in inventories’ as a precondition for the existence of critical circumstances.”
Def.’s Mem. at 7. Defendant maintains that “the Commission has regularly made
affirmative critical circumstances determinations without finding that inventories rapidly
increased.” Id. Defendant further asserts that “[i]n considering ‘any rapid increase in
inventories of the imports,’ the Commission found that the post-petition increase in
subject imports did not replace existing inventories but rather created a stockpile of
imports ….’” Id. at 39.
The relevant statutory provisions provide that in critical circumstances analyses,
the Commission “shall consider, among other factors it considers relevant,” in AD
investigations, “a rapid increase in inventories of the imports,” 19 U.S.C. §
1673d(b)(4)(A)(ii)(II), and in CVD investigations, “any rapid increase in inventories of the
imports,” 19 U.S.C § 1671d(b)(4)(A)(ii)(II).
Contrary to Consolidated Plaintiffs’ and Plaintiff’s assertions, the statute does not
require the Commission to affirmatively find a rapid increase in inventories of the
imports to make an affirmative critical circumstances determination. As the Federal
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Circuit has explained, the Commission’s “consideration” of a statutory factor does not
amount to a requirement to reach any conclusion regarding that factor:
Here, the Commission fully complied with its statutory duty by at least
consider[ing] … the magnitude of the margin of dumping. We decline to ask
more of the Commission than required by the statute.
Altx, 370 F.3d at 1123 (emphasis in original) (internal quotations and citations omitted).
In this case, the Commission complied with its statutory directive to “consider” a
or any “rapid increase in inventories of the imports.” 19 U.S.C. §§ 1673d(b)(4)(A)(ii)(II),
1671d(b)(4)(A)(ii)(II). It explained that the increase in post-petition subject imports did
not merely replace decreasing inventories during the post-petition period but rather
created a “stockpile” of subject import inventories, which increased between the pre-
and post-petition periods. Conf. Views at 65–66; Public Views at 46. Specifically, the
Commission found “end-of-period U.S. inventories of the relevant subject imports from
China were [[ 	]] pounds at the end of the pre-petition period and [[
]] pounds at the end of the post-petition period, an increase of [[ 	]] percent.”
Conf. Views at 63; Public Views at 45. The Commission explained that:
[T]he effect of the post-petition increase in subject imports was to create a
stockpile of imports prior to the imposition of provisional duties, as reflected
by the [[ 	]] percent increase in end-of-period inventories of subject
merchandise between the pre- and post-petition periods.
Conf. Views at 65; Public Views at 46.
The Commission also addressed arguments and evidence that would have
detracted from its findings. For example, the Commission explained:
We are unpersuaded by respondents’ contention that the [[ 	]] percent
increase in post-petition import volume and the increase in end-of-period
inventories are far less than the increases found in prior cases in which the
Commission found critical circumstances …. [W]ithin the context of the
overall U.S. market, the post-petition increase in the volume of imports in
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this case was [[ 	]][,] … equivalent to [[ 	]] percent
of apparent U.S. consumption in the final year of the POI.
Conf. Views at 62, n.257 (emphasis added); Public Views at 44, n.257.
Such explanation is a reasonable consideration of the statutory factors, and the
court declines to ask more of the Commission than is required by the statute. Altx, 370
F.3d at 1123. Further, the Commission reasonably explained its consideration of import
inventories, which included addressing arguments and information that detracted from
its conclusion. See United States Steel Group, 96 F.3d at 1357.
C. 	The Commission’s Consideration of “Any Other Circumstances”
Lastly, the court turns to whether the Commission’s consideration of “any other
circumstances indicating that the remedial effect of the [AD] / [CVD] order will be
seriously undermined” is supported by substantial evidence and otherwise in
accordance with law. 19 U.S.C. §§ 1673d(b)(4)(A)(ii)(III), 1671d(b)(4)(A)(ii)(III).
Consolidated Plaintiffs argue that “[n]o other circumstances constitute substantial
evidence that the remedial effect of the order will be seriously undermined.” Consol.
Pls.’ Mot. at 15. Consolidated Plaintiffs assert that the Commission “improperly found
critical circumstances based on post-petition data ‘without taking into account
contradictory evidence or evidence from which conflicting inferences could be drawn.’”
Consol. Pls.’ Reply at 20 (citing Gerald Metals, Inc. v. United States, 132 F.3d 716, 720
(Fed. Cir. 1997)). Consolidated Plaintiffs further claim that “the post-petition pricing data
do not support finding critical circumstances” and that “the Commission improperly
bleeds its considerations for ordinary injury … into the distinct critical circumstances
analysis.” Id.; Consol. Pls.’ Mot. at 15.
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Relatedly, Plaintiff argues that the Commission “ignored pricing patterns that
contradict its finding that subject imports were likely to seriously undermine the remedial
effect of the orders” and “erred in concluding that the timing of the subject imports
indicated that they were likely to seriously undermine the remedial effect of the [o]rders.”
Pl.’s Mot. at 28, 32.
Defendant argues that the Commission’s consideration of other circumstances
was proper, stating specifically that “the Commission considered the pricing of subject
imports in the post-petition period” and “observed that although these prices did not
markedly decrease, subject imports undersold the domestic like product at large
margins, averaging 38.6 percent, throughout the POI.” Def.’s Mem. at 42. Defendant
rebuts the contentions of Consolidated Plaintiffs and Plaintiff, asserting that “rather than
ignoring pricing trends, the Commission meticulously examined price and underselling
trends throughout the POI ….” Id. at 43–44. Lastly, Defendant refutes Consolidated
Plaintiffs’ claim that it inappropriately bled its normal injury analysis into the critical
circumstances analysis, maintaining that “the Commission did not repeat its normal
injury analysis[,]” and that “[g]iven the subject imports’ dominant market share and
universal underselling at large margins throughout the POI, it was reasonable for the
Commission to find that the significant increase in post-petition subject import volume
would adversely impact the domestic industry in the same way that subject imports
adversely impacted the industry during the POI[.]” Id. at 47 (internal quotations omitted).
The relevant statutory provisions provide that the Commission “shall consider,
among other factors it considers relevant … any other circumstances indicating that the
remedial effect of the [AD] / [CVD] order will be seriously undermined.” 19 U.S.C. §§
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1673d(b)(4)(A)(ii)(III), 1671d(b)(4)(A)(ii)(III). It is well established that the Commission
has “broad discretion” to consider data that it finds relevant in its critical circumstances
analyses. See MTD Prods., Slip Op. 2023-34, at 4; see also Am. Bearing Mfrs. Ass’n v.
United States, 350 F. Supp. 2d 1100, 1123 (CIT 2004); United States Steel Group, 96
F.3d at 1357.
Here, the Commission explained the other circumstances that it found relevant
for its critical circumstances analysis:
[W]e find the adverse impact of the subject imports from China subject to
Commerce’s 	affirmative 	critical 	circumstances 	determinations 	on 	the
domestic industry is likely to undermine seriously the effect of the [orders].
Subject imports, which maintained a dominant and increasing share of the
U.S. market throughout the POI while universally underselling domestic
product at large margins of underselling, increased by [[ 	]] percent in
the post-petition period, where this increase in volume of subject imports
was equivalent to [[ 	]] percent of the domestic industry’s production in
2023 and occurred in the context of increasing U.S. inventories of subject
imports.
Conf. Views at 65; Public Views at 46–47. The Commission further explained that
continued underselling by subject imports by wide margins in the post-petition period
was such that importers did not have to intensify their underselling to enable them to
significantly increase subject import volume in the post-petition period. Public Views at
37.
The Commission also addressed arguments that may have detracted from its
findings. Specifically, it examined pricing data highlighted by Consolidated Plaintiffs and
Plaintiff and found that “although prices of subject imports did not markedly decrease in
the post-petition period … subject imports undersold the domestic like product at large
margins of underselling throughout the POI, averaging 38.6 percent.” Public Views at
45. Further, the Commission explained that “the domestic industry as a whole and on a
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PUBLIC VERSION
Confidential Information Omitted
company-specific basis [[ 	]] throughout the POI as it lost
sales and sustained downward pricing pressure on account of universal underselling by
subject imports at large margins of underselling.” Conf. Views at 65–66; Public Views at
47.
Having provided a rational connection between the evidence on the record and
its findings, a reasonable mind could conclude that the Commission sufficiently
considered the statutory factors of 19 U.S.C. §§ 1673d(b)(4)(A)(ii)(III) and
1671d(b)(4)(A)(ii)(III). As such, the court will not disturb the Commission’s findings. See
Universal Camera Corp., 340 U.S. at 477.
CONCLUSION
For the foregoing reasons, the Commission’s final affirmative critical
circumstances determination is sustained. Judgment shall be entered accordingly.
/s/ 	Lisa W. Wang
Lisa W. Wang, Judge
Dated:
New York, New York
August 5, 2026
Case 1:24-cv-00182-LWW Document 87 Filed 08/31/26 Page 33 of 33