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Commerce Relied on Cost Data Despite Respondents Withholding Information, US Producers Argue

The Commerce Department illegally relied on raw honey acquisition costs as a proxy to calculate costs of production in the antidumping duty investigation into raw honey from India, despite those respondents withholding information and impeding the investigation, the American Honey Producers Association and the Sioux Honey Association argued in a May 23 brief at the Court of International Trade (American Honey Producers Association v. U.S., CIT # 22-00195).

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The brief came in response to motions by the respondents, Allied Natural Products and Ambrosia Natural Products (see 2304250069), and DOJ (see 2303210029), which argued that the respondents acted to the best of their ability in supplying the department with information as it became available.

American Honey and Sioux Honey asked the court to remand the case back to Commerce, claiming that the department incorrectly failed to apply adverse facts despite gaps in the record created by noncooperation of the respondents. Commerce claimed that there were no gaps in the record, despite Allied and Ambrosia allegedly withholding financial statements and auditor's reports before submitting unreliable information to Commerce, the producer groups said. The respondents withheld their financial statements long after they became available and did not submit them until verification, when they could no longer be rebutted, the producer groups said.

The record shows that Commerce instructed the respondents to file complete financial statements five separate times and that the respondents both stated that they would provide the statements as soon as they were available, the brief said. The honey producer associations argue that, instead, both Allied and Ambrosia withheld those statements for weeks until Commerce issued its questionnaire in lieu of verification. Commerce's claim that the associations had opportunities to rebut or correct information in those financial statements is incorrect, the associations said, and instead Commerce "explicitly denied" them the opportunity in a post-verification letter.

Commerce, while allowed to use incomplete information to draw conclusions, did not show that the respondents acted to the best of their ability to provide that information or that the submitted financial data was sufficiently complete and reliable to serve as the basis for reaching the underlying determination, the honey association argued. Given that record evidence showed that the respondents had the reports and did not timely provide them, "The Government's position is perplexing," the honey associations said. The associations also said that they identified missing attachments as well as inconsistencies in the respondents' financial statements that could have confirmed whether the statements were complete and reliable. Commerce's "consistent and long-held practice" is to reject similar financial statements and its decision in this case was contrary to practice and requires remand, the producer groups argued.