Judge Challenges 'Prior Practice' Departure Argument in Honey AD Case

The Commerce Department unlawfully broke with past practice by relying on raw honey acquisition costs as a proxy to calculate costs of production in the antidumping duty investigation on raw honey from India, a lawyer for the American Honey Producers Association and the Sioux Honey Association argued during oral arguments at the Court of International Trade on Aug. 16 (American Honey Producers Association v. U.S., CIT # 22-00195).

Counsel for the honey associations, Joshua Morey, compared the case to a similar investigation on honey from Argentina (see 2208090054). In that investigation, remanded in June by Judge Claire Kelly (see 2306070028), Commerce broke with prior practice because the only available costs of production information on the record other than the beekeepers' were the respondents' acquisition costs, Morey said. In this investigation, there were several alternate sources the government could have used but chose not to, he said.

Chief Judge Mark Barnett pressed Morey on the issue, saying that while Commerce had a past practice, the agency "explained why they were doing something different from their practice. ... It certainly seems like a fairly robust explanation here as to why their past practice doesn't really meet the needs that they have in this investigation," Barnett said.

The judge went on to say that the challenge in the Argentina case was brought by the respondent and that the concern was the possibility that the beekeepers' costs were overly inclusive. The honey assocations' argument "has to be that there are some missing costs somewhere along the line," Barnett said. He asked Morey how those missing costs were demonstrated by any of the facts on the record. He noted that Commerce focused on the largest suppliers with the greatest ability to provide records and then on the subgroup with the highest costs in order to ensure that the acquisition costs exceeded those costs, Barnett said, and that there were not any costs actually being mixed.

The real issue in the case is that the petitioners had a preferred source of information, Kara Westercamp said, representing the government. The associations wanted Commerce to have used information from the National Honey Information Board to fill in gaps in the record. However, Westercamp said, because all the beekeepers responded, Commerce wasn't "filling gaps." Instead, it merely used selected responses to test whether the acquisitions costs were reliable. Though the NHIB information was available, Commerce was under no obligation to use that data since the selected middlemen and beekeeper costs were found to be reliable, Westercamp said.