Sweet Harvest Foods v. United States

669 F. Supp. 3d 1346, 2023 CIT 162

• Court: United States Court of International Trade
• Decided: November 17, 2023
• Docket: Consol. 22-00188
• Status: Published

Opinion

Slip Op. 23-162

UNITED STATES COURT OF INTERNATIONAL TRADE

SWEET HARVEST FOODS, Plaintiff,

and

EXPORT PACKERS COMPANY LIMITED, HONEY HOLDING I, LLP DBA HONEY SOLUTIONS, SUNLAND TRADING, INC., NATIONAL HONEY PACKERS & DEALERS ASSOCIATION (NHPDA),

Consolidated Plaintiffs, Before: Leo M. Gordon, Judge

v. Consol. Court No. 22-00188 UNITED STATES,

Defendant, PUBLIC VERSION

AMERICAN HONEY PRODUCERS ASSOCIATION, SIOUX HONEY ASSOCIATION,

Defendant-Intervenors.

OPINION

[Sustaining ITC’s final affirmative critical circumstances determination.] Dated: November 17, 2023

Gregory Husisian, Foley & Lardner, LLP, of New York, N.Y., argued for Plaintiff Sweet Harvest Foods and Consolidated Plaintiffs Export Packers Company Limited, Honey Holding I, LLP DBA Honey Solutions, and Sunland Trading, Inc. With him on the briefs was Jenlain C. Scott.

Michael K. Haldenstein, Attorney Advisor, U.S. International Trade Commission, of Washington, D.C., argued for Defendant United States. With him on the brief were Dominic L. Bianchi, General Counsel, and Andrea C. Casson, Assistant General Counsel. Consol. Court No. 22-00188 PUBLIC VERSION Page 2

Melissa M. Brewer, Kelley Drye & Warren, LLP, of Washington, D.C., argued for Defendant-Intervenors American Honey Producers Association and Sioux Honey Association. With her on the brief were R. Alan Luberda and Kathleen W. Cannon.

Gordon, Judge: This consolidated action involves the final affirmative

determination of critical circumstances by the U.S. International Trade Commission (“ITC”

or “Commission”) resulting from the investigation on raw honey from Vietnam. See Raw

Honey from Argentina, Brazil, India, and Vietnam, 87 Fed. Reg. 33,831 (Int’l Trade

Comm’n June 3, 2022) (“Final Determination”); see also Views of the Commission, USITC

Pub. 5327, Inv. No. 701-TA-1564 (Final) (June 3, 2022), ECF No. 21-1 (“Views”);

Separate Views of Commissioner David S. Johanson (“Dissenting Views”), ECF No. 21-2;

Final Staff Report, ECF No. 21-3 (“Staff Report”); Raw Honey from Argentina, Brazil,

India, and Vietnam, 87 Fed. Reg. 35,501 (Dep’t of Commerce June 10, 2022)

(“AD Orders”).

Before the court is the USCIT Rule 56.2 motion for judgment on the agency record

filed by Plaintiff Sweet Harvest Foods (“Sweet Harvest”) and Consolidated Plaintiffs

Export Packers Company Limited, Honey Holding I, LLP DBA Honey Solutions, Sunland

Trading, Inc., and the National Honey Packers & Dealers Association (“NHPDA”)1

(collectively, Plaintiffs). See Pls.’ Mot. For J. on the Agency R., ECF No. 27 2 (“Pls.’ Br.”);

see also Def.’s Resp. to Pls.’ Mot. For J. on the Agency R., ECF No. 29 (“Def.’s Resp.”);

1 “Although all cases concerning the Vietnamese critical circumstances determination are

consolidated into a single action, the NHPDA is represented by its own counsel, attorney s from White & Case LLP,” of Washington, D.C. Pls.’ Br. at 1. The NHPDA did not file a separate brief, and supports the arguments raised by the other Plaintiffs. Id. Neither did NHPDA appear for oral argument. 2 All citations to parties’ briefs and the agency record are to their confidential versions

unless otherwise noted. Consol. Court No. 22-00188 PUBLIC VERSION Page 3

Def.-Int.’s Resp. to Pls.’ Mot. For J. on the Agency R., ECF No. 34 (“Def.-Int.’s Resp.”);

Pls.’ Joint Reply Brief, ECF No. 37 (“Pls.’ Reply”). The court has jurisdiction pursuant to

Section 516a of the Tariff Act of 1930, as amended, 19 U.S.C. §§ 1516a(a)(2)(A)(i)(I) and

1516a(a)(2)(B)(i). 3 For the reasons set forth below, the court sustains the ITC’s final

affirmative critical circumstances determination.

I. Background

The statutory scheme governing unfair trade investigations requires a

determination by the Commission on whether imported merchandise within the scope of

a particular investigation has materially injured a domestic industry. See 19 U.S.C.

§ 1673. After its investigation, the ITC unanimously found that imports of raw honey from

Vietnam were materially injuring a domestic industry. See Views at 74. Having reached

that determination, the Commission noted that the U.S. Department of Commerce

(“Commerce”) had found in its investigation that “critical circumstances exist with respect

to certain producers/exporters in Argentina and Vietnam.” Id. at 61 (citing Raw Honey

From the Socialist Republic of Vietnam, 87 Fed. Reg. 22,184 (Dep’t of Commerce

Apr. 14, 2022) (final affirm. AD determ. & crit. circum. determ.) 4). The ITC then explained

that, given Commerce’s determination, coupled with the affirmative material injury

3 Further citations to the Tariff Act of 1930, as amended, are to relevant provisions of Title 19 of the U.S. Code, 2018 edition. 4 In its final determination, Commerce noted that “because we continue to find that critical

circumstances exist, Commerce will instruct U.S. Customs and Border Protection (CBP) to continue to suspend liquidation of all appropriate entries of raw honey from Vietnam, … which were entered, or withdrawn from warehouse, for consumption on or after August 25, 2021, which is 90 days prior to the date of publication of the affirmative Preliminary Determination in the Federal Register.” 87 Fed. Reg. at 22,186. Consol. Court No. 22-00188 PUBLIC VERSION Page 4

determination, the statute required the Commission to further determine “whether the

imports subject to the affirmative [Commerce critical circumstances] determination … are

likely to undermine seriously the remedial effect of the antidumping [and/or countervailing

duty] order[s] to be issued.” Id. (citing 19 U.S.C. § 1673d(b)(4)(A)(i)).

In making a critical circumstances determination, the statute directs the

Commission to consider, among other relevant factors, “(I) the timing and the volume of

the imports, (II) a rapid increase in inventories of the imports, and (III) any other

circumstances indicating that the remedial effect of the antidumping order will be seriously

undermined.” 19 U.S.C. § 1673d(b)(4)(A)(ii). As part of its analysis, the Commission is

to identify “the appropriate period for comparison of pre-petition and post-petition levels

of subject imports from … Vietnam.” Views at 66. The ITC explained that, in the past,

it has “relied on a shorter comparison period when Commerce’s preliminary determination

applicable to the subject imports at issue fell within the six-month post-petition period the

Commission typically considers.” Id. Here, however, the ITC noted that the petitions

were filed on April 21, 2021 and that “Commerce’s preliminary determinations were

issued on November 17, 2021, after the last month in the six-month post-petition period

of May 2021 through October 2021.” Id. at 66–67. As a result, the ITC decided to

“compare the volume of subject imports six months prior to the filing of the petitions

(November 2020-April 2021) with the volume of subject imports in the six months after

the filing of the petitions (May 2021-October 2021).” Id. at 67.

Based on the timing and volume of imports, the rapid increase in and size of

inventories, and the continued underselling of the domestic like product by wide margins, Consol. Court No. 22-00188 PUBLIC VERSION Page 5

the Commission reached an affirmative determination of critical circumstances. Id. at 73.

As the ITC highlighted, “[a]n affirmative critical circumstances determination by the

Commission, in conjunction with an affirmative determination of material injury by reason

of subject imports, [results] in the retroactive imposition of duties for those imports subject

to the affirmative Commerce critical circumstances determination for a period 90 days

prior to the suspension of liquidation.” Views at 62. Consequently, duties on entries of

raw honey from Vietnam were made retroactive and payable on entries after August 25,

2021, rather than after the date of publication of Commerce’s preliminary determination

on November 23, 2021. See AD Orders, 87 Fed. Reg. at 35,502. One Commissioner

disagreed, finding that the record lacked evidence that “could resolve the exact size of

any diminished amount of unfairly traded merchandise that might remain.” See

Dissenting Views at 9–10 (noting that record lacked evidence “regarding final inventory

levels of most importers and purchasers, the propensity of end users to hold inventory,

actual consumption, and the rate at which fairly traded imports arrived immediately before

the order to replace unfairly traded ones”).

Plaintiffs then challenged the ITC’s affirmative critical circumstances

determination, maintaining that the ITC focused on the incorrect period to evaluate

whether critical circumstances existed. Plaintiffs raise several legal and factual

arguments that all share a fundamental theme, namely, that the ITC failed to consider or

afford adequate weight to the most recent data on the record, which, in turn demonstrated

that the critical circumstances imports were not “likely to undermine seriously” the

AD Orders. Consol. Court No. 22-00188 PUBLIC VERSION Page 6

Plaintiffs first argue that the ITC’s determination was not in accordance with law

because the agency issued its determination without analyzing contemporaneous

inventory information as required by § 1673d(b)(4)(A). See Pls.’ Br. At 2–3. Plaintiffs

maintain that the Commission failed to correctly interpret § 1673d(b)(4)(A)(i), as well as

§ 1673d(b)(4)(A)(ii)(II). See id. at 8 (highlighting standard for ITC critical circumstances

analysis that Commission must find that subject imports are “likely to undermine seriously

the remedial effect of the antidumping order to be issued”); id. at 12 (emphasizing that

“[i]t is the methodology and determination of the Majority relating to

[§ 1673d(b)(4)(A)(ii)(II)] that is the subject of this appeal. Merely analyzing whether there

is an increase of imports does not complete the analysis; as the statute requires, there

also must be evidence to show that those imports would have a specific effect, which is

to seriously undermine the remedial effect of the order.”); see also Pls.’ Reply at 2–11

(substantially developing argument that ITC erred by failing to properly interpret phrase

“order to be issued” in § 1673d(b)(4)(A)(i)).

Plaintiffs alternatively maintain that, even if the ITC’s determination is in

accordance with law, the ITC incorrectly applied the statute by relying upon unreasonable

assumptions to fill in missing inventory data, ignored contrary evidence on the record,

and ultimately reached an unreasonable determination based on incomplete and

outdated data. See Pls.’ Br. at 2–4, 18–35.

II. Standard of Review

The court sustains the Commission’s “determinations, findings, or conclusions”

unless they are “unsupported by substantial evidence on the record, or otherwise not in Consol. Court No. 22-00188 PUBLIC VERSION Page 7

accordance with law.” 19 U.S.C. § 1516a(b)(1)(B)(i). More specifically, when reviewing

agency determination, findings or conclusions for substantial evidence, the court

assesses whether the agency action is reasonable given the record as a whole. Nippon

Steel Corp. v. United States, 458 F.3d 1345, 1350–51 (Fed. Cir. 2006). Substantial

evidence has been described as “such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.” DuPont Teijin Films USA v. United States,

407 F.3d 1211, 1215 (Fed. Cir. 2005) (quoting Consol. Edison Co. v. NLRB, 305 U.S.

197, 229 (1938)). Substantial evidence has also been described as “something less than

the weight of evidence, and the possibility of drawing two inconsistent conclusions from

the evidence does not prevent an administrative agency’s findings from being supported

by substantial evidence.” Consolo v. Fed. Mar. Comm’n, 383 U.S. 607, 620 (1966).

Fundamentally, though, “substantial evidence” is best understood as a word formula

connoting a reasonableness review. 3 Charles H. Koch, Jr., Administrative Law and

Practice § 9.24[1] (3d ed. 2023). Therefore, when addressing a substantial evidence

issue raised by a party, the court analyzes whether the challenged agency action

“was reasonable given the circumstances presented by the whole record.” 8A West’s

Fed. Forms, National Courts § 3.6 (5th ed. 2023).

Separately, the two-step framework provided in Chevron, U.S.A., Inc. v. Natural

Res. Def. Council, Inc., 467 U.S. 837, 842–845 (1984), governs judicial review of the

Commission’s interpretation of the Tariff Act. See United States v. Eurodif S.A., 555 U.S.

305, 316 (2009) (An agency’s “interpretation governs in the absence of unambiguous Consol. Court No. 22-00188 PUBLIC VERSION Page 8

statutory language to the contrary or unreasonable resolution of language that is

ambiguous.”).

III. Discussion

A. Legal Arguments

As a threshold matter, Plaintiffs challenge the Commission’s interpretation of

19 U.S.C. § 1673d(b)(4)(A)(i), which provides that “[t]he final determination of the

Commission shall include a finding as to whether the imports subject to the affirmative

determination under subsection (a)(3) are likely to undermine seriously the remedial effect

of the antidumping duty order to be issued under section 1673e of this title.” See

19 U.S.C. § 1673d(b)(4)(A)(i). Specifically, Plaintiffs argue that the plain meaning of the

words “order to be issued” in the statute clearly demonstrates congressional intent to

require the ITC to engage in a forward-looking analysis to determine whether any

increased critical circumstances imports at the time of the issuance of the order are in a

position to “undermine seriously” the impact of the final antidumping duty order. See Pls.’

Br. at 14–16, 18 (concluding that “[t]he statute specifically requires that the Commission

evaluate inventory levels as a means of determining whether, at the time of the issuanc e

of the order, there are sufficient levels of the critical circumstances entries in existence to

‘undermine seriously’ the remedial effect of the order. With the record containing no

information regarding the inventory levels of the critical circumstances entries at the time

of the order, or any information regarding the inventories held by end-users, the Dissent

correctly concluded that there was no basis to determine that the statutory standard was

met.”); see also Oral Argument at 00:04:05–00:04:50 (July 18, 2023), ECF No. 50 Consol. Court No. 22-00188 PUBLIC VERSION Page 9

(Plaintiffs’ opening argument, relying on Chevron, is that “this case, at its heart, is a case

about statutory construction…. [which] starts and stops with the plain language of the

statute”); Pls.’ Reply at 2–11 (substantially developing argument that ITC erred by failing

to properly interpret phrase “order to be issued” in § 1673d(b)(4)(A)(i)).

Plaintiffs’ legal arguments are presented in a confusing manner, with Plaintiffs

initially arguing that the meaning of the statute is clear, before conceding shortly thereafter

that the statute is silent as to the specific timing issue challenged here. Compare Pls.’

Br. at 12 (arguing that “where ‘Congress has directly spoken to the precise question

at issue,’ as it has here, the agency is required to follow that directive” (emphasis added)),

with id. at 14 (conceding that “[t]he time period to be used in evaluating inventory levels

is not specified in the statute.”). When asked to square this apparent contradiction,

Plaintiffs maintained that their legal argument consists of two parts, with the first focusing

on the clear “general intent” of the language in § 1673d(b)(4)(A)(i), and in particular, the

remedial effect of the “order to be issued.” See Oral Arg. at 00:06:06–00:07:17

(explaining that argument should be considered under Chevron step 1); see also Pls.’

Reply Br. at 7–11 (arguing “the Statute, the Legislative History, and Recent Precedent of

this Court” with respect to the statutory phrase “Remedial Effect of the Order to Be

Issued”). Plaintiffs’ counsel then explained that its concession as to statutory silenc e

related to a different provision, namely § 1673d(b)(4)(A)(ii) not § 1673d(b)(4)(A)(i). Oral

Arg. at 00:07:17–00:08:04, 00:15:15–00:19:41 (explaining that this more specific

argument should be considered under Chevron step two). Unfortunately, counsel’s

attempt at oral argument in clarifying Plaintiffs’ legal position does not accurately reflect Consol. Court No. 22-00188 PUBLIC VERSION Page 10

the arguments made in their briefs. Regardless, Plaintiffs’ clarification fails to persuade

the court that their statutory interpretation is meritorious.

Beyond reciting the Chevron step one standard that an agency must follow a

statutory directive where “Congress has directly spoken to the precise question at issue,”

Plaintiffs’ arguments do not demonstrate how Congress has spoken directly, nor how the

plain language of § 1673d(b)(4)(A) compels their desired outcome. See Pls.’ Br. at 12

(providing sole citation to Chevron in all of Plaintiffs’ briefing); see also Oral Arg.

at 00:06:10–00:08:02 (describing “general intent” of § 1673d(b)(4)(A)(i) as “clear,” while

acknowledging that § 1673d(b)(4)(A)(ii) is silent as to precisely what inventory data that

ITC should be considering). In developing their argument regarding § 1673d(b)(4)(A)(i),

Plaintiffs characterize the dispute as “whether the Commission should examine the level

of the critical circumstances inventories: (1) at the time that the suspension of liquidation

occurs (i.e., November 25, 2021, which is fairly close to the time period actually

considered by the Commission majority); or (2) based on updated inventory and other

data found in the record for the final phase of the investigation (as urged by Plaintiffs).”

Pls.’ Reply Br. at 7-8. Plaintiffs contend that the ITC is acting unreasonably in determining

that the agency need not examine “any inventory data that is after the suspension of

liquidation (November 25, 2021), because the ‘remedial effect of the order … began upon

collection of duties in November 2021.” Id. at 8 (citing Def.’s Resp. at 3). Plaintiffs

maintain that the ITC ignored the plain language of the statute since the relevant provision

specifies that the agency’s critical circumstances analysis is to focus on whether the Consol. Court No. 22-00188 PUBLIC VERSION Page 11

critical circumstances entries are likely to “undermine seriously the remedial effect of the

antidumping order to be issued.” Id. (quoting § 1673d(b)(4)(A) with added emphasis).

Defendant urges the court to reject Plaintiffs’ view and maintains that the ITC’s

statutory interpretation is correct. Defendant argues that the plain language of

§ 1673d(b)(4)(A), when read in the context of the statute as a whole, demonstrates that

the “remedial effect of the order” refers to final duties that are effective as of suspension

of liquidation. See Def.’s Resp. at 11. Defendant notes that the Commission focuses its

critical circumstances inquiry on the imports that entered after the filing of the petition and

prior to the suspension of liquidation, at which time relief becomes effective. Id.

Defendant emphasizes that “[t]he legislative history explains that the critical

circumstances provision was designed ‘to deter exporters whose merchandise is subjec t

to an investigation from circumventing the intent of the law by increasing their exports to

the United States during the period between initiation of an investigation and a preliminary

determination by [Commerce].’” Id. (quoting ICC Indus., Inc. v. United States, 812 F.2d

694, 700 (Fed. Cir. 1987) (quoting H.R. Rep. No. 317, 96th Cong., 1st Sess. 63 (1979)),

aff’g, 10 CIT 181, 632 F. Supp. 36 (1986)).

Defendant specifically notes that the “Statement of Administrative Action [(“SAA”)]

accompanying the Uruguay Round Agreements Act indicates that the Commission should

analyze the period prior to the effective date of the order as the Commission’s critical

circumstances determination is focused ‘on whether an order’s effectiveness is

undermined by increasing shipments prior to the effective date of the order.’” Id. (citing

H.R. Rep. 103-316, vol. I at 877 (1994)). Based on this material, Defendant concludes Consol. Court No. 22-00188 PUBLIC VERSION Page 12

that the ITC’s analysis of “the likely effects of the surge in imports entering prior to

suspension of liquidation that are normally not subject to antidumping duties” is consistent

with the congressional mandate to analyze whether the imports are likely to seriously

undermine the remedial effect of the order. Id. (highlighting that SAA similarly directs

Commerce to examine “the imports that entered after the filing of the petition and prior to

suspension of liquidation”).

Plaintiffs also cite to the SAA emphasizing that the statutory intent is for the ITC

“to focus ‘on whether an order’s effectiveness is undermined by increasing shipments

prior to the effective date of the order.” Pls.’ Reply at 8 (quoting the SAA, H.R.

Rep. 103-316, Vol. I at 877, with added emphasis). Thus, while Plaintiffs and Defendant

apparently agree that the statute directs the ITC to focus on the time period right before

the “effective date of the order,” the parties diverge on precisely what constitutes the

“effective date” of the order. According to Plaintiffs, Defendant’s determination that the

“effective date of the order to be issued” commences with the suspension of liquidation is

unreasonable in that it wrongfully equates the commencement of provisional measures

(i.e., the suspension of liquidation following the publication of the preliminary

determinations of Commerce and the ITC), with the issuance and publication of the

AD order (as well as the corresponding issuance of final duties) following the final

determinations of Commerce and the ITC. See Pls.’ Reply at 7–11. Plaintiffs’ argument

is undercut, while the Commission’s interpretation is further bolstered, by the language of

the AD Orders that provides that duties are collected on or after suspension of liquidation

on November 23, 2021, except for duties on raw honey from Vietnam, which were made Consol. Court No. 22-00188 PUBLIC VERSION Page 13

retroactive by 90 days from November 23, 2021, to August 25, 2021. See AD Orders,

87 Fed. Reg. at 35,502. Thus, the AD Orders are, by their own terms, applicable to duties

after suspension of liquidation rather than after the date of issuance of the order itself.

Plaintiffs’ focus on the absence of the term “provisional measures,” as well as the

forward-looking nature of the phrase “order to be issued,” is misplaced in light of the full

context of § 1673d(b)(4)(A). See Def.’s Resp. at 27–29. Given the above, Plaintiffs are

unable to persuade the court that the phrase “order to be issued” conveys a clear

congressional intent to require the ITC to consider more contemporaneous data, i.e., data

from after the suspension of liquidation.

Plaintiffs raise a separate argument relating to the interpretation of

§ 1673d(b)(4)(A)(i), contending that “[t]he issue before the Commission is to consider

whether the exact entries of raw honey from Vietnam that entered during the ninety-day

critical circumstances period are in a position to ‘undermine seriously’ the remedial effect

of the order.” Pls.’ Br. at 11. In their reply, Plaintiffs develop this argument more fully,

maintaining that “[t]he Statute Plainly States that the Entries ‘Subject to the Department’s

Affirmative’ Critical Circumstances Finding Are Exactly the Same as the Entries Where

Liquidation Is Suspended Ninety Days Early.” See Pls.’ Reply at 3–7. Plaintiffs make this

argument purportedly in response to Defendant’s contentions that Plaintiffs have

confused “the 90-day retroactive application of duties with the entries subject to

Commerce’s finding of critical circumstances.” Id. at 3 (quoting Def.’s Resp. at 2).

Plaintiffs begin by describing in detail Commerce’s critical circumstances determination,

and conclude that Defendant has apparently “confused the time period analyzed by the Consol. Court No. 22-00188 PUBLIC VERSION Page 14

Department to determine whether subject imports were ‘massive’ (i.e., the period between

April of 2021 and November of 2021) with the actual critical circumstances entries that

are “subject to the affirmative determination” (i.e., the ones that were subjected to

antidumping duties by virtue of the Department’s affirmative critical circumstances

finding).” Id. at 6. Plaintiffs therefore contend that “there is no basis for Defendant to

conclude that the Commission was supposed to analyze [whether] critical circumstances

[existed] based on ‘imports … entering during a longer period {than ninety days},

the period between the filing of petitions and suspension of liquidation.’” Id. at 7.

As Defendant explains, “Commerce makes its finding of critical circumstances

concerning imports in the post-petition period prior to suspension of liquidation.” Def.’s

Resp. at 15 (citing 87 Fed. Reg. 2,127, 2,129–30 (Jan. 13, 2022) (preliminary

determination of critical circumstances for Vietnam), and 87 Fed. Reg. 22,184, 22,185

(Apr. 14, 2022) (final determination of critical circumstances)). Here, the “post-petition

period started in April 2021 with the filing of the petitions and ran until suspension of

liquidation in November 2021.” Id. The SAA directs the ITC “to determine whether the

surge in imports prior to the suspension of liquidation, rather than the failure to provide

retroactive relief, is likely to seriously undermine the remedial effect of the order.” Id.

(quoting SAA at 877). Given this, the court agrees that “the issue for the Commission

was not, as Plaintiffs also incorrectly state, whether the remedial effect of the order would

be seriously undermined without the retroactive application of duties for 90 days. Instead,

the issue for the Commission was, as it properly analyzed, whether the subject imports

entering during the period after the filing of the petition and prior to suspension of Consol. Court No. 22-00188 PUBLIC VERSION Page 15

liquidation were likely to seriously undermine the remedial effect of the antidumping duty

order.” Id. (internal citations omitted). This conclusion is logical given the purpose of the

critical circumstances provision and the overall statutory scheme.

Plaintiffs fail to explain how or why the statute would limit the time period for the

Commission’s critical circumstances analysis to only the 90-day retroactive period rather

than having it mirror the same period reviewed by Commerce in its critical circumstances

analysis. Cf. 19 U.S.C. § 1673d(a)(3). Not only is Plaintiffs’ contention that the

Commission must examine current inventory levels unsupported by the statutory critical

circumstances requirements, it also appears practically unworkable given the statutory

deadlines and time constraints imposed on the Commission. As Defendants point out,

there is a limit on the time period for which the Commission can gather data from

interested parties given the statutory deadline to which it is subject and given the statutory

requirements that information be released to parties and parties be permitted to comment

on all record information. See Def.’s Resp. at 32–33 (explaining that Plaintiffs’ demand

for collecting and reviewing 2022 data “is incompatible with the Commission’s final phase

investigations which utilized a POI ending in September 2021,” and emphasizing

limitations imposed by statutory deadlines); Def.-Int.’s Resp. at 5 n.3. Overall, Plaintiffs’

argument is unpersuasive as the court concludes that the ITC’s statutory interpretation

was not at odds with the plain language of § 1673d(b)(4)(A)(i).

Alternatively, Plaintiffs contend that the ITC misinterpreted 19 U.S.C.

§ 1673d(b)(4)(A)(ii)(II). See Pls.’ Br. at 12. Specifically, Plaintiffs argue that, under this

provision, the ITC is required to evaluate both historical data on import levels and Consol. Court No. 22-00188 PUBLIC VERSION Page 16

contemporaneous data on inventory levels, and that the ITC failed to do the latter. Pls.’

Br. at 14–16. Notably, Plaintiffs do not dispute that there was a substantial increase in

the “timing and volume of the imports” relevant to the ITC’s critical circumstances analysis

under § 1673d(b)(4)(A)(ii)(I). See Pls.’ Br. at 12 (conceding that “Plaintiffs do not

challenge the Commission’s methodology or conclusions [under § 1673d(b)(4)(A)(ii)(I)]

relating to whether imports increased.”); Oral Arg. at 00:23:48-00:23:55 (“We don’t

disagree that there was a big increase in imports.”). Again, the court returns to the

Chevron framework to evaluate Plaintiffs’ legal argument under § 1673d(b)(4)(A)(ii)(II),

and again the court must conclude that Plaintiffs have failed to demonstrate how they can

prevail under this standard.

As previously noted, Plaintiffs correctly recite the first step of Chevron, explaining

that where “where ‘Congress has directly spoken to the precise question at issue,’ … the

agency is required to follow that directive.” Pls.’ Br. at 12 (arguing that Congress has

indeed directly indicated its intent under § 1673d(b)(4)(A)). However, not more than two

pages later in their opening brief, Plaintiffs expressly concede that the “time period to be

used in evaluating inventory levels is not specified in the statute.” Id. at 14. Following

this concession, Plaintiffs appear to abandon their arguments under Chevron and do not

address whether the ITC’s interpretation comports with the statute. Instead, Plaintiffs

maintain in a conclusory manner that “logically” the forward-looking nature of the critical

circumstances inquiry demands that the Commission review contemporaneous

information as to the inventory levels specified in § 1673d(b)(4)(A)(ii)(II). Id. at 14–15.

Plaintiffs fail to support this argument with legislative history or other sources Consol. Court No. 22-00188 PUBLIC VERSION Page 17

demonstrating that their “logical” conclusion as to the statutory interpretation renders the

ITC’s interpretation impermissible.

To the contrary, Defendant provides the court with legislative history that

corroborates the ITC’s interpretation of § 1673d(b)(4)(A)(ii)(II). See Def.’s Resp.

at 28–29. Defendant highlights that the ITC’s focus of its critical circumstances analysis,

“with respect to imports and inventories in the post-petition period prior to suspension of

liquidation,” makes sense given that the statute directs Commerce to focus its critical

circumstances analysis on the same time period. Id. at 28; see also Def.-Int.’s Resp.

at 4–5 (highlighting that § 1673d(b)(4)(A)(ii)(II) directs ITC to consider existence of

“increase” in inventories, not “what the remaining level of inventories are at some point in

time after the imposition of provisional measures leading up to the Commission’s vote”).

Defendant further notes that the “SAA confirms that the effective date of the antidumping

duty order, rather than its issuance date, is the proper time for the Commission’s

analysis.” Def.’s Resp. at 28 (citing SAA at 877). Specifically, the SAA provides that the

ITC is required to determine “whether, by massively increasing imports prior to the

effective date of relief, the importers have seriously undermined the remedial effect of the

order.” Id. at 29 & n.7 (quoting, with emphasis, SAA at 877, and noting that

“[t]he language quoted above from the SAA appears in nearly 100 Commission critical

circumstances determinations (by Westlaw’s count) indicating that it has consistently

been the effective date of relief that is important in the Commission’s analysis”).

Given Plaintiffs’ concession, there is no dispute that the interpretation of

§ 1673d(b)(4)(A)(ii)(II) should be resolved under Chevron step two because the statute is Consol. Court No. 22-00188 PUBLIC VERSION Page 18

silent as to what time period the ITC should use in conducting its critical circumstances

inventory analysis. Additionally, as Plaintiffs have not provided any support for their

argument as to why the ITC’s interpretation is impermissible under Chevron step two, the

court agrees with Defendant that Plaintiffs cannot prevail on this issue. As Defendant

explains:

The statute provides additional guidance to the Commission, directing it to consider whether there has been “a rapid increase in inventories of the imports.” 19 U.S.C. § 1673d(b)(4)(A)(ii)(II). The Commission must therefore evaluate the increase in inventories of the imports subject to Commerce’s determination. The statute does not direct the Commission to evaluate the remaining level of inventories subject to Commerce’s determination several months later when Commerce finally issues the antidumping duty order. The statute’s specific reference to the increase in inventories indicates the Commission should evaluate their increase prior to provisional duties and not the manner in which the inventories are later sold.

Def.’s Resp. at 28.

In sum, Plaintiffs have failed to demonstrate that the ITC’s interpretation of the

plain language of the statute violated express congressional intent. See supra at pp.

8-15. Furthermore, Plaintiffs have not shown that the ITC impermissibly interpreted the

statute by focusing its critical circumstances analysis on the period prior to suspension of

liquidation in evaluating whether subject imports are “likely to undermine seriously the

remedial effect of the antidumping duty order to be issued.” Accordingly, the court

sustains the ITC’s interpretation of § 1673d(b)(4)(A). Consol. Court No. 22-00188 PUBLIC VERSION Page 19

B. Substantial Evidence Arguments

Plaintiffs maintain that, even if the court rejects their legal challenges to the

Commission’s interpretation of § 1673d(b)(4)(A), the court should nevertheless remand

the ITC’s affirmative determination of critical circumstances as unsupported by substantial

evidence. See Pls.’ Br. at 13–35. Specifically, Plaintiffs contend that it was unreasonable

for the ITC to reach its findings without the record containing information about

“the inventory levels of the critical circumstances entries at the time of the [issuance of

the] order, or any information regarding the inventories held by end-users.” Id. at 16–17.

Plaintiffs further insist that given the state of the record, the Commission’s conclusions as

to the inventory levels of critical circumstances entries were “pure guesswork.” Id.

at 18-29.

Plaintiffs also contend that the Commission ignored “two other key pieces of

evidence: (1) information demonstrating that the U.S. industry was experiencing severe

shortages and the inability to supply customers at the end of the period of investigation;

and (2) information demonstrating that the U.S. producers, which do not make raw honey

that directly competes with the Vietnamese imports, would not be losing any sales

opportunities at the bakers who rely on Vietnamese imports.” Id. at 29–35. In making

these arguments, Plaintiffs rely heavily on Commissioner Johanson’s dissent and urge

the court to remand to allow the ITC to reach a negative final determination following the

dissent’s reasoning. See id. at 16–34, 36. Consol. Court No. 22-00188 PUBLIC VERSION Page 20

Before addressing the merits of Plaintiffs’ substantial evidence arguments, the

court will review the findings made by the Commission in reaching its affirmative critical

circumstances determination. The ITC found that:

[R]aw honey imports from Vietnam from all Vietnamese producers/exporters are subject to Commerce’s affirmative critical circumstances determination. These imports increased from 48.0 million pounds in the pre-petition period to 87.9 million pounds in the post-petition period, an increase of 83.2 percent. The 87.9 million pounds of subject imports in the post-petition period are equivalent to 19.1 percent of apparent U.S. consumption in the interim 2021 period. The volume of subject imports from Vietnam in four of the six months of the post-petition period (July, August, September, and October 2021) significantly exceeded the volume of subject imports from Vietnam recorded in any prior month of the POI. In addition, subject imports from Vietnam increased rapidly in each of the first four months of the post-petition period, reversing a downward trend from December 2020 to April 2021.

Views at 69–70 (footnotes omitted). Further, the ITC highlighted that importers’

inventories of imports from Vietnam subject to Commerce’s affirmative determination

increased almost threefold from April 30, 2021 (the last month of the pre-petition period)

to October 31, 2021 (the last month of the post-petition period). Id. at 70–71 (noting that

“[s]everal importers increased their inventories of subject imports from Vietnam from April

2021 to October 2021 before provisional duties came into effect in November 2021”).

The ITC emphasized that it viewed the “timing of subject imports from Vietnam in

the post-petition period as significant and probative.” Id. at 72 (reviewing import data and

explaining its finding that “[t]his timing, together with the associated volume of subjec t

imports in the post-petition period, suggest that the volume of imports was … a deliberate Consol. Court No. 22-00188 PUBLIC VERSION Page 21

effort to enter product into the U.S. market in substantial and increasing volumes while

evading potential exposure to the retroactive application of antidumping duties”).

The Commission further noted that “[w]hile apparent U.S. consumption was higher in

interim 2021 than interim 2020 by 15.2 percent, importers’ U.S. shipments of subjec t

imports from Vietnam were only 2.8 percent higher, a modest increase that does not

explain why importers would sharply increase their imports from Vietnam during the

post-petition period.” Id. It also observed that “notwithstanding higher prices, the

domestic industry continued to report losses even with higher prices in interim 2021.” Id.

at 74. The ITC thus concluded that “[g]iven the volume and timing of imports, including

the sharp increase in the volume of post-petition imports prior to the retroactive liability

period under the critical circumstances provision, the rapid increase in and size of

inventories, and the continued underselling of the domestic like product by wide margins,

we find that the remedial effect of the antidumping duty order with respect to subjec t

imports from Vietnam will likely be seriously undermined.” Id.

The ITC next considered and rejected Plaintiffs’ contentions that importers had

sold off most of their inventory. In fact, the data available on the record did not support

Plaintiffs’ assertions. See Views at 73–74 & n. 306. The ITC was unconvinced by

Plaintiffs’ arguments that critical circumstances cannot exist when importers have

“sold off” their inventories, explaining that “regardless of where the imported honey is in

the supply chain, the volume associated with these inventories is large and increased

substantially in the post-petition period and is likely to place downward pressure on prices

until it is consumed by end users, particularly given the continued underselling by subjec t Consol. Court No. 22-00188 PUBLIC VERSION Page 22

imports from Vietnam at wide margins.” Id. at 73. While Plaintiffs maintain that the ITC’s

conclusion here was based on “assumptions” and guesswork, see Pls.’ Br. at 18–20,

26-29, the ITC emphasized that the record did not support Plaintiffs’ fundamental

contention. See Views at 73 n.306. Specifically, the Commission noted that:

One of the largest importers of subject imports[,] and the supplier of raw honey from Vietnam to [Customer X], [] provided an affidavit stating ‘we are not aware of any real build-up of raw honey from Argentina and Vietnam, whether in the inventories of packers such as our company or in the inventories of our customers.’ However, this statement is not consistent with the inventories it reported. [This large importer] reported inventories of subject imports from Vietnam of [X] million pounds in March 2022-- over twice their April 2021 level and only 7.9 percent lower than their level in October 2021.

Id. (internal citations to Pls.’ administrative post-hearing brief omitted).

The ITC acknowledged that the record lacked information as to “raw honey held

downstream,” since even though downstream “Ingredient Purchasers fully participated

in the final phase of these investigations,” [[

]].” Id.

While Plaintiffs urge the court to conclude that this downstream inventory data was

essential for the ITC’s analysis, the court is not persuaded that the Commission acted

unreasonably in reaching a final affirmative critical circumstances determination on the

record presented. As pointed out by Defendant and Defendant-Intervenors, “Plaintiffs

never requested that the Commission collect the data they now claim is crucial to the

critical circumstances analysis.” See Def.-Int’s. Br. at 10; Def.’s Br. at 19–22 (responding Consol. Court No. 22-00188 PUBLIC VERSION Page 23

to Plaintiffs’ argument that “the Commission should have gathered 2022 inventory

information from U.S. importers and end users concerning their holdings of raw honey

from Vietnam” by noting that “Plaintiffs, however, did not ask the Commission to collect

this information for 2022”). The court agrees that if Plaintiffs believed this information to

be essential to the ITC’s critical circumstances analysis, Plaintiffs’ failure to request the

addition of this data to the record strongly undercuts their argument that the ITC’s

determination was unreasonable. 5

Plaintiffs remaining arguments are without merit. With respect to Plaintiffs’

contention that the ITC unreasonably ignored “information demonstrating that the U.S.

industry was experiencing severe shortages and the inability to supply customers at the

end of the period of investigation,” see Pls.’ Br. at 29–33, the record simply does not

support Plaintiffs’ position. Plaintiffs start by explaining the logic of their argument, noting

that “[t]he entire purpose of the critical circumstances determination is to determine

whether there are sufficiently large inventories of subject merchandise, entering prior to

the imposition of provisional measures (and thus subject to no antidumping duties),

to show that it is ‘likely’ that those exact entries will undermine the remedial effect of the

5 At Oral Argument, the parties addressed this issue and Plaintiffs confirmed that they are

no longer pressing the argument that the record was incomplete and that the ITC should have collected 2022 inventory data. See Oral Arg. at 02:10:27– 02:12:18 (Plaintiffs’ counsel confirming that the collection of data issue is no longer a “live issue,” maintaining that Plaintiffs remaining argument about 2022 inventory data is that ITC failed to consider data that Plaintiffs had placed on the record); cf. Pls.’ Reply at 15 (acknowledging that “importers and packers provided a full set of inventory data relating to inventory levels of the critical circumstances entries,” while also suggesting that “it would have been preferable for the Commission to gather such information as part of its questionnaire process”). Consol. Court No. 22-00188 PUBLIC VERSION Page 24

antidumping duty order.” Id. at 30. Plaintiffs reason that “[i]n light of this goal, it is critical

to examine whether the U.S. industry is awash in unsold product (which would make it

more ‘likely’ that it would lose sales to any remaining critical circumstances entries, and

thus push the Commission towards issuing an affirmative critical circumstances

determination) or, in the alternative, is experiencing shortages (which pushes in the

opposite direction).” Id. Plaintiffs therefore maintain that because the record reflects

evidence of shortages of domestically produced honey, the Commission’s failure to

address and account for the impact of such shortages in its affirmative critical

circumstances determination is unreasonable.

Plaintiffs point to some record evidence as demonstrating support for the

conclusion that the domestic industry was experiencing “severe shortages” that would

indicate that increased levels of critical circumstances entries would not be likely to

undermine seriously the remedial effect of the AD Orders. Id. at 30–31. First, Plaintiffs

cite to the discussion in the Staff Report of U.S. importers’ and producers’ responses to

questions about supply constraints. Id. (“When asked about supply constraints after the

filing of the petition on April 21, 2021, 6 U.S. producers and 14 importers reported that

they refused or declined to supply due to adverse climate conditions and increased

logistics costs and delays. Fifteen of 20 responding purchasers reported being declined

supply after the filing of the petition citing [ {Petitioner} SHA’s ] inability to supply dark

amber honey, COVID-related disruptions such as logistics, labor shortages, and

lockdowns, and uncertainty in the market resulting from the petition. Four purchasers

reported that [ {Petitioner} SHA ] declared a force majeure and was unable to fill orders Consol. Court No. 22-00188 PUBLIC VERSION Page 25

in 2021.” (quoting Pre-Hearing Staff Report, CR 6 744 at II-9 (March 29, 2022))). Second,

Plaintiffs contend that “this information was amply corroborated” by the questionnaire

responses of consumers like [[ ]], “one of the largest bakers and

consumers of raw honey in the United States.” Id. at 31 (quoting [[ ]]

questionnaire response that “[[

]]”). Plaintiffs

further cite to the testimony of another U.S. purchaser confirming a similar experience

with Sioux Honey. Id. Plaintiffs conclude that “the failure of the Majority to take into

account this highly relevant U.S. producer shortage and inventory information provides

further evidence that the Majority’s analysis is unsupported by substantial evidence.” Id.

at 33.

Defendant persuasively explains why Plaintiffs’ arguments about shortages are

without merit. See Def.’s Resp. at 36–39. Critically, “[n]one of th[e] evidence relied upon

by Plaintiffs to show ‘severe shortages’ even pertains to domestically produced honey.”

Id. at 37. Rather, as was detailed in the Staff Report, the claim of force majeure, relied

upon by Plaintiffs as evidence of shortages, was not the result of shortages of

domestically produced honey. Instead, it resulted from the fact that “certain shipments of

imported raw honey that failed quality testing.” Id. (quoting, with added emphasis, Staff

6 “PR” refers to a document in the public administrative record, which is found in ECF No. 22, unless otherwise noted. “CR” refers to a document in the confidential administrative record, which is found in ECF No. 21, unless otherwise noted. Consol. Court No. 22-00188 PUBLIC VERSION Page 26

Report at II-9 n.21). Similarly, Plaintiffs’ reliance on the questionnaire response of [[

]] is misplaced as “[[

]].” Id. (quoting Staff Report

at III-13(b)). Given the full context, the court does not agree with Plaintiffs that the record

reflected evidence of “severe shortages” that the Commission failed to address in its

analysis.

Turning to Plaintiffs’ contention that the ITC failed to consider “information

demonstrating that the U.S. producers, which do not make raw honey that directly

competes with the Vietnamese imports, would not be losing any sales opportunities at the

bakers who rely on Vietnamese imports,” see Pl.’s Br. at 29–30, the court again concludes

that Plaintiffs’ argument is unpersuasive as it does not accurately reflect the record.

Plaintiffs maintain that “The Majority Ignore[d] Uncontradicted Evidence That Any

Remaining Inventories of the Critical Circumstances Entries Could Not ‘Substantially

Undermine’ the Remedial Effect of the Order Because They Do Not Compete with U.S.

Production.” See Pl.’s Br. 33–35; see also Pl.’s Reply at 18–20. Plaintiffs argue that the

Commission erred in finding that U.S. and Vietnamese raw honey were substitutable

(i.e., similar products that compete with each other in the market). Pl.’s Br. at 33

(explaining that “the more substitutable the two types of raw honey are, the more the

Commission is pushed in the direction of an affirmative critical circumstances, because

this would increase the likelihood that any remaining inventories of the critical

circumstances entries would replace U.S. sales.”). Plaintiffs insist that the record

demonstrates that “Vietnamese raw honey has different uses than U.S.-produced raw Consol. Court No. 22-00188 PUBLIC VERSION Page 27

honey, which largely relegate them to different end uses.” Id. Specifically, Plaintiffs point

out that “In 2020, [a very large] percent of Vietnamese imports are light amber or amber

or darker honey.” Id. (citing Pre-Hearing Staff Report, CR No. 744 at E-9 (Table E-6)

(March 29, 2022); NHPDA Pre-Hearing Brief, CR No. 747, at 55, n. 214 (April 5, 2022)).

“In direct contrast, in 2020, only [a very small] percent of U.S. production accounted for

amber and dark amber honey.” Id. at 34 (citing Pre-Hearing Staff Report, CR 744, at E-4

(Table E-1) (March 29, 2022); NHPDA Pre-Hearing Brief CR No. 747, at 47, 54 (April 5,

2022)). Given this information, Plaintiffs conclude that “whatever small remaining

inventories of critical circumstances raw honey existed at the time of the order were not

in a position to displace sales of U.S.-produced raw honey or to push down prices for

U.S.-produced raw honey, which is not even suitable for use in the baking sector that

relies on Vietnamese raw honey.” Id. Plaintiffs urge the court to remand the ITC’s

affirmative critical circumstances determination as unreasonable given “[t]he failure of the

Majority to take into account this highly material information on the record.” Id. at 35.

Defendant, in response, maintains that Plaintiffs’ substitutability argument is

meritless and relies on a misstatement of the record. See Def.’s Resp. at 41–43.

As Defendant explains:

Plaintiffs first manipulate the data by comparing the share of shipments of raw honey from Vietnam that was light amber or darker ([a very large] percent) with the share of shipments of domestically produced honey that was amber or darker [a very small] percent to argue that there was no overlap in shipments of honey types. In fact, the share of domestically produced honey that was light amber or darker was 20.1 percent in 2020. The 20.1 percent figure for light amber or darker shipments of domestically produced honey is Consol. Court No. 22-00188 PUBLIC VERSION Page 28

appropriately compared to the [very large] percent of light amber or darker shipments of raw honey from Vietnam.

Def.’s Resp. at 41–42 (internal citations omitted). Moreover, as Defendant points out

“[t]he Commission also discussed the overlap, observing that large producers’ U.S.

shipments were between 18 and 20 percent light amber from 2018 to 2020.” Id. at 42

(citing Views at 58 n.248); see also Views at 58 n.248 (“Respondents assert that product

from Vietnam is required in the market because of its dark color. However, over half of

the product from Vietnam was of light amber honey during the POI, a product the domestic

industry produces. Most of importers’ shipments of subject imports were light amber or

lighter as were the domestic industry’s shipments. Further, the greatest increase in

subject imports from 2018 to 2020 was in light amber, followed by extra light amber, and

then the darkest honey, amber. Thus, it was not “dark” honey leading the increase in

subject imports. Eighty percent of the increase in subject imports was in light amber and

extra light amber. These two colors accounted for over 40 percent of the domestic

industry’s shipments.” (internal citations omitted)). In light of the above, the court cannot

agree that the ITC unreasonably failed to consider or address Plaintiffs’ substitutability

arguments.

Defendant also points out that its critical circumstances analysis in another action

was recently sustained against a similar challenge. See Def.’s Notice of Supp. Auth.,

ECF No. 32 (Mar. 22, 2023) (citing MTD Products, Inc. v. United States, Court No. 21-264,

Slip Op. 23-34, 2023 WL 2535885 (Mar. 16, 2023) (“MTD Products”), and noting that

“[a]pplying the substantial evidence standard, the Court in MTD Products upheld an Consol. Court No. 22-00188 PUBLIC VERSION Page 29

affirmative critical circumstances determination in which the Commission considered

inventories prior to the imposition of provisional duties.”).

In MTD Products, a domestic importer filed suit challenging the Commission’s

affirmative critical circumstances determination resulting from the AD and CVD

investigations of small vertical shaft engines from China. Plaintiff there argued that the

Commission had relied on faulty data, and further argued that the majority’s review of the

record was unreasonable and that the dissenting view by Commissioner Johanson,

i.e., that the ITC should reach a negative critical circumstances determination, was the

only reasonable outcome on the record. MTD Products, 2023 WL 2535885 at *3, *6.

After reviewing the record and considering Plaintiff’s arguments, the court ultimately

sustained the ITC’s affirmative critical circumstances determination, concluding that the

ITC’s findings were reasonably supported by the record. MTD Products, 2023 WL

2535885 at *7.

Plaintiffs respond that MTD Products actually supports their position because in

that matter “the Commission consider[ed] the potential impact of any increased critical

circumstances entries on U.S. sales that would occur long after the imposition of

provisional measures, [and] the CIT explicitly affirmed the Commission on that basis.”

Pls.’ Reply at 11–12. Specifically, Plaintiffs emphasize that the ITC in MTD Products

made its affirmative critical circumstances determination after considering the impact of

critical circumstances imports on “future sales” (i.e., sales made after imposition of

provisional measures imposed as part of investigation). Id. at 12 (citing ITC’s Consol. Court No. 22-00188 PUBLIC VERSION Page 30

determination in Small Vertical Shaft Engines from China, Inv. Nos. 701-TA-643 and

731-TA-1493 (Final), USITC Pub. 5185 (Apr. 2021) at 50).

While Plaintiffs are correct that the ITC engaged in a forward-looking analysis in

Small Vertical Shaft Engines from China, Plaintiffs have failed to persuade the court that

the ITC failed to engage in a similar analysis here. Cf. Def.’s Resp. at 31 (highlighting

how ITC did in fact evaluate “likely” impact of critical circumstances imports in

forward-looking analysis based off of inference from 2021 import and apparent

consumption level data). Plaintiffs further fail to recognize that the court in MTD Products

considered Commissioner Johanson’s dissent as part of its analysis under the substantial

evidence standard. See MTD Products, 2023 WL 2535885 at *7; cf. Pls.’ Reply at 11

(arguing that “The MTD Products Determination Confirms that Defendant and

Defendant-Intervenor Have Advanced a Flawed Statutory Construction”). Plaintiffs thus

err in concluding that “[b]oth the Commission’s approach (considering the impact of the

increased imports on the next selling season, after the issuance of the order) and the

terms of this Court’s affirmance (endorsing the analysis and emphasizing that the

Commission is statutorily required to analyze future events ‘in advance’[)] demonstrates

how the Commission should have proceeded in this matter.” Pls.’ Reply at 13–14.

As in MTD Products, the Commission here faced a record that demonstrated a

substantial increase in inventories prior to the initiation of suspension of liquidation.

In reviewing the record, Commissioner Johanson found that “the record contains clear

evidence that the increase in unfairly traded subject imports in the six-month period

following the petition was largely if not entirely eliminated in the next six months before Consol. Court No. 22-00188 PUBLIC VERSION Page 31

the order, and the domestic industry’s condition sharply improved.” Dissenting Views

at 9. Further, Commissioner Johanson observed that “[t]he record lacks evidence that

could resolve the exact size of any diminished amount of unfairly traded merchandise that

might remain, such as evidence regarding final inventory levels of most importers and

purchasers, the propensity of end users to hold inventory, actual consumption, and the

rate at which fairly traded imports arrived immediately before the order to replace unfairly

traded ones.” Id. at 9–10. Commissioner Johanson then concluded that although it was

“possible that enough [unfairly traded subject imports] remained [in importers’ inventories]

to have an impact,” his review of the record did not permit him to reach an affirmative

critical circumstances finding as he could not conclude that the imports subject to the

Department of Commerce’s critical circumstances determination were “likely” to

“undermine seriously” the order’s remedial effect. Id. at 10.

Given the record and the majority’s analysis in both matters, the court determines

that the reasoning and conclusion in MTD Products apply equally here:

The Commission amply explained the reasons for its conclusion that a surge in subject imports threatened to seriously undermine the duty orders’ remedial effects. And although [Plaintiffs] dispute[] the evidentiary sufficiency of those findings, and urge[] the court to adopt the dissenting views of Commissioner Johanson, substantial evidence review does not permit the court to re-weigh the evidence as [Plaintiffs] propose[]. “The possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence.” Siemens Energy, Inc. v. United States, 806 F.3d 1367, 1372 (Fed. Cir. 2015) (cleaned up) (quoting Consolo v. Fed. Mar. Comm’n, 383 U.S. 607, 620 (1966)). Although the court agrees with [Plaintiffs] that the conclusion drawn by Commissioner Johanson is supported by the record, Consol. Court No. 22-00188 PUBLIC VERSION Page 32

the conclusion drawn by the Commission majority— considering the record as a whole and the evidence that detracts from that conclusion—is also supported by the record. Under the substantial evidence standard, ties go to the agency.

MTD Products, 2023 WL 2535885 at *7. While Plaintiffs urge the court to adopt the

conclusions of Commissioner Johanson’s dissent as the only reasonable outcome based

on the record, the court is not persuaded that the majority’s determination here was

unreasonable. Overall, the four corners of the record do not support Plaintiffs’ arguments

that the ITC’s affirmative critical circumstances determination was unreasonable.

IV. Conclusion

Based on the foregoing, the court sustains the ITC’s affirmative critical

circumstances finding as to raw honey from Vietnam in the Final Determination.

Judgment will enter accordingly.

/s/ Leo M. Gordon Judge Leo M. Gordon

Dated: November 17, 2023 New York, New York