Trade Court Upholds ITC's Critical Circumstances Analysis on Vietnamese Raw Honey

One of the companies' legal arguments took issue with the ITC's interpretation of the words "order to be issued" in the statute's standard that ITC find that imports are "likely to undermine seriously the remedial effect of the antidumping duty order to be issued." The plaintiffs said that the plain meaning of these words clearly shows congressional intent to require ITC to engage in a "forward-looking analysis to determine whether any increased critical circumstances imports at the time of the issuance of the order are in a position to 'undermine seriously' the impact of the" final AD order.

Gordon first noted that the arguments were presented in a "confusing manner" since they say the statute's meaning is clear before saying that it is silent as to the specific timing issue challenged in the case. The judge held that regardless of this seeming inconsistency, focus on the phrase "order to be issued" is misplaced due to the law's full context. The plaintiffs argued that the ITC's determination that the effective date of the order starts with the suspension of liquidation is unreasonable since it wrongfully equates the start of provisional measures with the issuance of the AD order.

The court said that this claim is "undercut" by the language of the orders, which says that duties are collected "on or after suspension of liquidation." As a result, the plaintiffs failed to show that the phrase "order to be issued" conveys a clear congressional intent to require the ITC to consider data from after the suspension of liquidation, CIT said.

Sweet Harvest also argued that the commission had no basis to analyze whether critical circumstances existed based on imports during a longer period than 90 days between the filing of the petition and the suspension of liquidation. Gordon found that the issue is whether the imports entered during the period after the petition was filed and before the suspension of liquidation were likely to undermine the AD order's remedial effects.

"This conclusion is logical given the purpose of the critical circumstances provision," the judge held, adding that the plaintiffs failed to explain how or why the statute would limit the time period for the ITC's analysis to only the 90-day retroactive period instead of having it mirror the same period reviewed by the Commerce Department in its analysis. Additionally, the plaintiffs' position is "practically unworkable" given the statutory deadlines set on the ITC, the judge said.

Gordon similarly dispatched with the plaintiffs' evidentiary arguments. The companies said that the ITC made an unreasonable finding without information on the inventory levels of the critical circumstances entries at the time of the order or any information on the inventories held by end-users. The judge found it damning that the companies never requested this information during the administrative proceeding, undercutting their claim that that information is needed now.

The court also ruled against the plaintiffs' claim that the ITC ignored information showing the U.S. industry was experiencing severe shortages and information showing that the U.S. producers wouldn't be losing any sales opportunities at the bakers who rely on Vietnamese imports. The record "simply does not support" the position that the ITC unreasonably ignored information showing the U.S. industry was experiencing severe shortages and the inability to supply customers, the opinion said.

While the plaintiffs said that Vietnamese raw honey has different uses than U.S.-made raw honey, which relegates them to different end uses, the court found this claim to be belied by the record. The plaintiffs said the Vietnamese good was needed in the market due to its dark color, though over half of imports from Vietnam were light amber honey. As a result of this evidence, along with other facts, the court said that it wasn't dark honey leading to the increase in imports.

(Sweet Harvest Foods v. United States, Slip Op. 23-162, CIT Consol. # 22-00188, dated 11/17/23; Judge: Leo Gordon; Attorneys: Gregory Husisian of Foley & Lardner for plaintiff Sweet Harvest Foods; Michael Haldenstein for defendant U.S. International Trade Commission; Melissa Brewer of Kelley Drye for defendant-intervenors American Honey Producers Association and Sioux Honey Association)