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DOJ Lawyer Clears Up Remark on Substantial Dependence Analysis in CVD Case at CAFC

DOJ attorney Tara Hogan submitted a letter to the U.S. Court of Appeals for the Federal Circuit correcting a statement she made during March 7 oral argument in a countervailing duty case on ripe olives from Spain (Asociacion de Exportadores e Industriales v. U.S., Fed. Cir. # 23-1162).

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During the oral argument, Hogan said the volume of the cacerena varietal of olives was "wholly excluded from the numerator and denominator" of the substantial dependence calculation. She corrected the remark by noting that the "volume of cacerena varietal grown for mill but used for table olives is excluded from the numerator, and the volume of cacerena varietal grown for mill is excluded from the denominator."

In the CVD investigation, Commerce attributed a subsidy given to raw olive growers to the downstream ripe olive exporters based on the notion that demand for certain raw olive varietals is substantially dependent on table olives. After this finding was remanded by the Court of International Trade, Commerce divided the market into olive varietals grown for table olives, varietals grown as mill olives for olive oil and "dual-use" varietals used for either purpose.

Using this construct, Commerce said that the demand for raw olive varietals mainly used for table olives is "substantially dependent on the demand for processed table olives." After another remand, the agency calculated a consumption ratio of 55.28%, which it said represented the percentage of raw olives turned into table olives. The numerator of the ratio was made of the "total tonnage of table olives processed from biologically distinct table and dual-use raw olive varietals," while the denominator was made up of the "total tonnage of biologically distinct table and dual-use raw olive varietals."

The CAFC judges questioned the construction of this ratio, leading to Hogan's mix-up (see 2403070070). The DOJ attorney's letter noted that the three judges also asked about how the 45,420 tons of cacerena olives grown for table olives are accounted for in the ratio. Hogan said statistics from the Spanish government show that 492,244 metric tons of raw olives are grown for table olives -- a number that includes the 45,420 tons of cacerena olives and the 29,870 tons of other varietals grown for table olives.

Hogan said that since the 45,420 MT of cacerena olives and 29,870 MT of other olives grown for table "are included in both the numerator and denominator, Commerce made an apples-to-apples comparison."