CIT OKs AD Rate Slash for Brazilian Honey Exporter
The Court of International Trade sustained the Commerce Department's decision on remand to drop the use of total adverse facts available against exporter Apiario Diamante Comercial Exportadora, with Apiario Diamante Producao e Comercial de Mel known as Supermel, in the antidumping duty investigation on raw honey from Brazil. The result saw Supermel's AD rate drop from 83.72% to 10.52%.
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Previously, Judge Timothy Stanceu rejected the use of total AFA on Supermel, finding that minor discrepancies between data submitted from two, small unaffiliated beekeepers and Supermel can't stand as a reason to reject the use of the exporter's acquisition costs as a proxy for the costs of production (see 2405310043). The judge also said Supermel's response to five questionnaire inquiries weren't deficient, as Commerce had found.
On remand, Commerce said it reanalyzed Supermel's honey acquisition costs and said the complete reconciliation of the company's data to its suppliers' reported data is immaterial to the analysis based on other reliable and verifiable evidence on the record. In response, petitioners American Honey Producers Association and the Sioux Honey Association raised a host of claims against the decision.
The first two alleged that the court applied the incorrect standard when reviewing Commerce's decision to use total AFA and that the agency's use of total AFA in the final results was supported by substantial evidence. Stanceu rejected these two claims as being attempts to relitigate issues already settled by the court in its first decision. Instead, the petitioners should have filed a motion for reconsideration, the judge held.
The petitioners said the use of total AFA is compelled by deficiencies in Supermel's questionnaire, laying out various alleged additional shortcomings in the company's submissions. Rejecting this claim, Stanceu leaned on the fact that Commerce made its remand decision not under protest, reaching its own conclusion "independently of any directive of the court." The court didn't compel any certain factual findings but merely rejected the prior findings as being unsupported by substantial evidence, the judge added.
Stanceu also said that Commerce responded to all the alleged deficiencies raised by the petitioners "by explaining that 'Supermel's data is otherwise reliable and verifiable on the basis of other information available on the record.'" The court said the petitioners failed to "perfect their claim by demonstrating that Commerce exceeded its discretion." The U.S. companies "make no attempt to show, in particular, how their claimed deficiencies affected the Department’s margin calculation," the decision said.
Instead, the petitioners' objections "amount to little more than a general, unsupported contention that Commerce should have conducted additional verification and, had it done so, would have been compelled to conclude that there were inadequate 'reconciliations,' 'supporting documentation,' and corroborations," Stanceu held.
And while the petitioners said Commerce didn't respond to all of their claims, the judge said the agency didn't need to. Commerce addressed "some" of the petitioners' "lengthy arguments only generally rather than address every argument with particularity" -- this is "not a basis on which the court may reject" the remand, the decision said.
Lastly, the petitioners said Supermel failed to support its offset for a tax credit. The exporter received a tax credit under Brazilian law that was equal to the amount of the nation's Program of Social Integration and Contribution for the Financing of Social Security taxes paid on raw materials based on a percentage of the invoice value. The agency rejected on remand the petitioners' claim that Supermel's claimed offset value should be denied since the company didn't tie it to its accounting records.
Commerce said the amount of the taxes paid "may not be separately identified on the invoices received in connection with domestic input purchases” and "the taxes are embedded in the actual amount paid." The petitioners allege that it's the respondent's burden to show that the offset is warranted. The court said the agency adequately "reviewed the record in response to defendant-intervenors’ allegation and concluded, based on substantial record evidence, that Supermel qualified for the offset."
(Apiario Diamante Comercial Exportadora v. United States, Slip Op. 25-10, CIT # 22-00185, dated 01/24/25; Judge: Timothy Stanceu; Attorneys: Pierce Lee of Crowell & Moring for plaintiff Apiario Diamante Comercial Exportadora and Apiario Diamante Producao e Comercial de Mel (jointly dba Supermel); Kara Westercamp for defendant U.S. government; Alan Luberda of Kelley Drye for defendant-intervenors American Honey Producers Association and the Sioux Honey Association)