Government Misread 'Critical Circumstances' Statutory Timelines, Honey Importer Argues

A critical circumstances determination on imports of raw honey from Vietnam issued by the International Trade Commission should be remanded to the ITC due to a "flawed misreading of the statute," Sweet Harvest Foods and four other consolidated plaintiffs said in a May 16 reply brief at the Court of International Trade. In addition to misinterpreting the statute, Sweet Harvest said that the government's case endorses the ITC's use of outdated inventory data in assessing whether the entries were likely to “undermine seriously” an antidumping duty order to be issued in the future (Sweet Harvest Foods v. United States, CIT # 22-00188).

The ITC had found that the timing and volume of imports showed an intent to evade the provisional antidumping measures and to assure entry of the imports prior to the date on which any retroactive measures would be applied. The ITC said that inventories of raw honey from Vietnam "nearly tripled" in the period immediately after the antidumping petition that were not explained by consumption patterns (see 2303130048).

The government argued that the "critical circumstances period" stretched from April to November 2021 despite the statute's description of the period as 90 days, Sweet Harvest said. DOJ mixed its treatment of the time period examined by Commerce when evaluating critical circumstances with the actual entries that are the subject of the Department’s critical circumstances finding, Sweet Harvest said.

The statute directs the ITC to determine whether the remedial effect of the order "to be issued will" be undermined, "not the efficacy of the provisional measures already in place," Sweet Harvest said. The government and the defendant-intervenors argued for a construction that is "contrary to the plain language of the critical circumstances provision," Sweet Harvest said. The statute "plainly states" that the entries subject to Commerce’s affirmative critical circumstances finding are identical to entries where liquidation was suspended 90 days early.

Sweet Harvest also claimed that the government used outdated inventory data in its assessment. The ITC sought updated data for its investigation on honey from Argentina while it simultaneously argued that deadlines prevented similar information gathering in its investigation on Vietnam, Sweet Harvest said.

The question of whether end-users were supposedly “stockpiling” critical circumstances entries was not raised until the petitioners made the allegation in the pre-hearing brief. After the allegation, while the record was still open, Sweet Harvest said that it showed that a significant portion of the "critical circumstances" were not in a position to seriously undermine the remedial effect of the AD order yet to be issued because they had been consumed. The government can't argue that Sweet Harvest failed to exhaust its remedies when that information was placed on the record on the same issue, Sweet Harvest said.