Parties Disagree Over Meaning of Claims, Court Remand Order in Argentinian Honey Case

Each party to a conflict involving a raw Argentinian honey antidumping duty investigation on Dec. 22 accused the opposing side of misunderstanding the case before the court (Nexco v. United States, CIT # 22-00203).

In separate briefs filed after the results of a remand were published, they disagreed particularly about whether a downstream exporter’s costs of acquiring honey from beekeepers should have been considered the exporter’s costs of production or a substitute for the beekeepers’ production costs.

Nexco, a respondent for an AD investigation covering raw honey from Argentina, said Commerce shouldn't have equated Nexco’s costs of production with the prices it paid domestic Argentinian beekeepers for honey.

Commerce made no changes to its investigation after CIT first remanded the case in June (see 2310130049).

DOJ, along with defendant-intervenors American Honey Producers Association and Sioux Honey Association, supported the remand results. They said the issues Nexco raised in its remand comments had already been settled.

Nexco argued in its initial remand comments that Commerce went against standard practice by not limiting its costs of production analysis for raw agricultural goods to those incurred by the goods’ producers, even when the producers were distinct from the respondent itself (see 2311150055). The beekeepers, not Nexco, were the producers of Nexco’s honey, the exporter said. Commerce therefore failed to address the court’s reasons for remand, as the issue “was not whether acquisition costs overstate Nexco’s costs, but rather whether they overstate the costs of the beekeepers,” it said.

Commerce fully complied with the court’s remand order, DOJ said Dec. 22.

“This argument misinterprets the Court’s order because the Court questioned whether using Nexco’s acquisition costs overstates the COP of the honey that Nexco had exported,” it said. “In its consideration of this question, Commerce necessarily considered the purpose of the statute for obtaining the costs from an unaffiliated producer-supplier to the exporter-respondent.”

The defendant-intervenors also said Dec. 22 that Nexco’s arguments weren't “relevant at this stage of the appeal.” CIT already had sustained Commerce’s decision to not collect cost data directly from the Argentinian honey producers. The court didn't challenge the legality or consistency of that decision, they said.

“With these findings in mind, it is evident that Nexco's argument that Commerce is somehow re-visiting its ‘raw goods’ policy on remand are an attempt to re-litigate the Court's prior findings,” they said.

They also claimed Nexco was arguing about what Commerce “should have done,” not whether it acted reasonably. The former was outside the court’s standard of review, they said.

In answer, Nexco said the defendant-intervenors misunderstood Commerce’s investigation methodology and positions. Commerce itself had said it had intended to follow its longstanding practice of only considering raw agricultural goods’ production costs, it said. It used Nexco’s acquisition prices as a proxy for the beekeepers’ costs only, due to the difficulty of collecting that cost data directly.

Commerce still couldn't explain how its methodology wasn't over-inclusive, the exporter said.

“Commerce’s assertion that all it needs to be concerned about is including all the costs is not supported by the provisions of the statute that define the methodology for determining the ‘cost of production,’” it said.