Importers Say US Bucks Plain Statutory Language in Critical Circumstances Defense

Importers led by Sweet Harvest Foods argued on Aug. 23 that the government's claims in defense of its affirmative critical circumstances determination on the importers' Vietnamese honey imports "contravene the plain language and logic of the statute." Filing a reply brief at the U.S. Court of Appeals for the Federal Circuit, Sweet Harvest said the statute plainly tells the International Trade Commission to conduct an "inherently forward-looking analysis" in assessing whether imports from the 90-day critical circumstances period will likely undermine the remedial effect of the antidumping duty order and that any arguments to the contrary undercut this clear message (Sweet Harvest Foods v. United States, Fed. Cir. # 24-1370).

AD petitioners sought the critical circumstances investigation alleging a sudden increase in raw honey imports from Vietnam prior to an anticipated AD order would undercut the order itself. The ITC conducted a prospective analysis and determined that the increase would undermine the order’s effect, imposing duties on the shipments for the 90 days leading up to Commerce's preliminary determination.

Sweet Harvest sued, alleging that the ITC improperly considered all entries starting with the filing of the petition and running until the suspension of liquidation of affected entries instead of looking purely at the "90 days of entries that" are potentially subject to critical circumstances duties. In response, the U.S. pointed to statutory language that says that the ITC shall include a finding as to whether the goods subject to the affirmative determination are likely to undermine the "remedial effect of the antidumping duty order to be issued."

In response, Sweet Harvest said this statute includes "no directive regarding the time period Commerce should analyze, other than to state that Commerce should consider whether there have been 'massive imports of the subject merchandise over a relatively short period.'" The government fails to account for the statutory language telling the ITC to reach a finding "as to whether the imports subject to the affirmative determination" are likely to undermine the AD order.

"That is, the period that Commerce analyzes to make its critical circumstances finding" is "unrelated to the period that the Commission must evaluate," which is the 90-day period before the suspension of liquidation, the brief said.

The government claimed that Sweet Harvest offered a "mistaken premise" that the AD order isn't in effect until it was issued, since provisional measures are collected when the preliminary determination comes out. Sweet Harvest said this claim bucks the "plain language of the statute," which says critical circumstances findings can only be issued if the imports would seriously undermine the "antidumping duty order to be issued." If Congress meant for this period to relate to the provisional measures, it would have said as much, the brief argued.

Sweet Harvest added that the government ignores the language of the Statement of Administrative Action, which likewise appreciates the difference between the "effective date of relief" and the "effective date of the order." As the statute relates only to the effective date of the order, and not the date of relief, Commerce erred in considering the period beyond the 90 days leading up to the preliminary determination, the brief said.

The importer also dubbed a handful of the government's claims "illogical." For instance, the U.S. said the statutory language referring to a "rapid increase in inventories" means the effect of the imports at issue must be evaluated "only during a time frame during which it is logically possible for imports to increase." Sweet Harvest said this ignores the fact that inventory levels require analyses of additions to and sales out of inventories.

There's "no logical reason why the time period during which the Commission evaluates critical circumstances must coincide with the time period when such imports might be increasing," the brief said.

Sweet Harvest also responded to the government's defense of the evidentiary basis for its critical circumstances determination. The importer said the U.S. response mischaracterizes the record, controlling precedent and the parties' ability to respond to the allegation before the commission.