Commerce Misapplied AFA in Spanish Olive CVD Case, Exporters Argue

The Commerce Department incorrectly applied adverse facts available to a Spanish olive producer and incorrectly applied a standard for determining product demand in its third administrative review of the countervailing duty order on ripe olives from Spain, the Asociación de Exportadores e Industriales de Aceitunas de Mesa (ASEMESA), Agro Sevilla and Angel Camacho said in their April 4 complaint to the Court of International Trade (Asociación de Exportadores e Industriales de Aceitunas de Mesa; Agro Sevilla Aceitunas S. Coop. And., Angel Camacho Alimentación, S.L., v. U.S., CIT # 23-00076).

Commerce's determination that demand for the “prior stage products” manzanilla, goral, hojiblanca and carrasqueña was “substantially dependent” on demand for the “latter stage product” table olives misapplied the “substantially dependent” standard, ASEMESA said. Even if Commerce used the correct standard, its determination that demand for the “prior stage products” were substantially dependent on demand for table olives is not supported by substantial evidence, ASEMESA said.

In addition, Commerce misapplied adverse facts available to Camacho, ASEMESA said. As part of its review, Commerce required Agro Sevilla and Camacho to collect subsidy information from non-party growers of raw olives, including those where no control relationship exists and even where no affiliation exists at all.

The non-cooperation of non-party, unaffiliated growers, was not a legal basis to apply AFA since the growers were not interested parties under the statute, ASEMESA argued. Commerce also incorrectly determined that Camacho failed to cooperate to the best of its ability despite the record showing "significant efforts" by Camacho to obtain information from its growers, ASEMESA said.

Commerce correctly applied neutral facts available to non-party growers that failed to provide information during the questionnaire phase, but applied AFA to similar growers that sought to make corrections at verification, ASEMSA said. Commerce's differences in treatment unlawfully punished Camacho when its non-party, unaffiliated growers affirmatively sought to cooperate, ASEMESA said.