Honey Importers Appeal to CAFC to Overturn ITC Critical Circumstances Finding

Several importers appealed for relief April 22 to the U.S. Court of Appeals for the Federal Circuit, saying in their opening brief that the International Trade Commission wrongly reached an affirmative critical circumstances determination regarding their Vietnamese honey imports and the Court of International Trade erroneously upheld it (Sweet Harvest Foods v. U.S., Fed. Cir. # 24-1370).

Petitioners, domestic producers American Honey Producers Association and Sioux Honey Association, sought the critical circumstances investigation alleging a sudden increase in raw honey imports from Vietnam prior to an anticipated antidumping duty order. The ITC conducted a prospective analysis and determined that the increase would undermine the order’s effect.

But the ITC’s analysis was flawed, importers led by Sweet Harvest Foods said in their brief. They said the commission only gathered importer and packer inventory data through October 2021, which was eight months before the order was issued, and that it didn’t use any evidence regarding end-user inventories.

Without that data, the ITC’s conclusion that the alleged overflow of honey imports were “in the supply chain,” about to cause damage, was speculative, they said. And, they claimed, the commission relied on petitioners’ conclusory and unsupported assertions that were sometimes even contradicted by record evidence, especially regarding a claim of honey “stockpiling.”

In fact, nearly all the critical circumstances had already been sold off to end users by the start date of the orders, they said.

"The Commission's sole reliance on the outdated inventory data violates its statutory obligation to conduct a forward-looking analysis of the critical circumstances inventories," they said.

They contested CIT’s decision to defer to the ITC’s conclusion on the basis of Chevron U.S.A. v. Natural Resources Defense Council, which held that courts should defer to a federal agency’s interpretation of a statute if the statute is ambiguous and the agency’s interpretation reasonable.

CIT was wrong that the regulation in question, 19 USC 1673d(b)(4)(A), was ambiguous, Sweet Harvest said.

Its plain language clearly requires “that the extraordinary imposition of cash deposits 90 days before the publication Commerce’s preliminary determination can occur only if the record demonstrates that the specific entries from that 90-day period are ‘likely to undermine seriously’ the antidumping duty order,” it said. The commission, therefore, can’t examine “historic” inventory levels to reach a critical circumstances finding, it said.

That clarity meant that CIT shouldn’t have moved to the next step of Chevron, considering whether the ITC’s determination was reasonable, it said. Instead, it said, the trade court should have held that the ITC failed to conduct a proper prospective analysis under the statute.

It asked CAFC to remand the case to the ITC so that the commission can reverse its determination.