Maui Pineapple Co., Ltd. v. U.S.

• Decision Date: 16 April 2003
• Docket Number: No. 01-01017.,Slip Op. 03-42.,01-01017.
• Citation: 264 F.Supp.2d 1244
• Parties: MAUI PINEAPPLE COMPANY, LTD., Plaintiff, v. UNITED STATES, Defendant, and Dole Food Company, Inc., Dole Packaged Foods Company, and Dole Thailand, Ltd., Defendant-Intervenors.
• Court: U.S. Court of International Trade

Page 1244

264 F.Supp.2d 1244

MAUI PINEAPPLE COMPANY, LTD., Plaintiff, v. UNITED STATES, Defendant, and Dole Food Company, Inc., Dole Packaged Foods Company, and Dole Thailand, Ltd., Defendant-Intervenors.

Slip Op. 03-42.

No. 01-01017.

United States Court of International Trade.

April 16, 2003.

Collier Shannon Scott, PLLC (Paul C. Rosenthal, David C. Smith, Jr., Jennifer E. McCadney), Washington, D.C., for Plaintiff.

Robert D. McCallum, Jr., Assistant Attorney General; David M. Cohen, Director, Commercial Litigation Branch, Civil Division, United States Department of Justice; Lucius B. Lau, Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice; Brent M. McBurney, Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice; Glenn R Butterton, Senior Attorney, Office of Chief Counsel for Import Administration, United States Department of Commerce, for Defendant, of counsel.

Hale and Dorr LLP (Michael D. Esch, Aimen Mir), Washington, D.C., for Defendant-Intervenors.

OPINION

CARMAN, Chief Judge.

Plaintiff Maui Pineapple Company, Ltd. ("Maui") moves for judgment upon the agency record and challenges the United States Department of Commerce's ("Commerce") results in Notice of Final Results of Antidumping Duty Administrative Review and Recission [sic] of Administrative Review in Part: Canned Pineapple Fruit From Thailand, 66 Fed.Reg. 52,744 (Oct. 17, 2001) ("Final Results") and the accompanying Issues and Decision Memorandum for the Final Results of the Antidumping Duty Administrative Review: Canned Pineapple Fruit from Thailand (Oct. 9, 2001), Pub. Doc. 216, Def.'s Pub. App. Ex. 2 ("Decision Memo"). This Court has jurisdiction to hear the case pursuant to 28 U.S.C. § 1581(c) (2000). The Court holds that Commerce properly accepted information on sales to the United States military by Defendant-Intervenors at verification and properly accepted corrections to Defendan-Intervenors' clerical errors. The Court remands the issues of imputed credit expenses and the alleged clerical error in Commerce's final margin program for further consideration by Commerce. For the reasons that follow, Plaintiffs motion is granted in part, and denied in part.

BACKGROUND

Commerce issued an antidumping duty order covering canned pineapple fruit from Thailand in 1995. Final Determination of Sales at Less Than Fair Value: Canned Pineapple Fruit From Thailand, 60 Fed. Reg. 29,553 (June 5, 1995) ("1995 Final Determination"), as amended Notice of Antidumping Duty Order and Amended Final Determination: Canned Pineapple Fruit From Thailand, 60 Fed.Reg. 36,775 (July 18, 1995) ("1995 Amended Final Determination). Imports by Dole Food Company, Inc., Dole Packaged Foods Company, Inc., and Dole Thailand, Ltd. (collectively "Dole") were covered by the initial order, and Dole was found to have a 1.73% dumping margin. 1995 Amended Final Determination, 60 Fed.Reg. at 36,776.

On July 20, 2000, Commerce published notice of opportunity to request a review of the initial antidumping order for the period of review of July 1, 1999 to June 30, 2000. Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation; Opportunity To Request Administrative Review, 65 Fed.Reg. 45,035, 45,036 (July 20, 2000). The fifth administrative review, in which Dole participated, was initiated on September 6, 2000. Initiation of Antidumping and Countervailing Duty Administrative Reviews and Requests for Revocation in Part, 65 Fed. Reg. 53,980, 53,982 (Sept. 6, 2000).

Commerce sent Dole its initial questionnaire on September 1, 2000. (Letter from U.S. Department of Commerce to Hale & Dorr LLP (on behalf of Dole) (Sept. 1, 2001), Pub. Doc. 19, Pl's Pub.App. Ex. 15, Def.'s Pub.App. Ex. 7, Dole's Pub.App. Ex. 4.) In the questionnaire, Dole was asked to describe the sales process for each of its sales methods or channels of distribution. (Dole's Section A Questionnaire Response (Oct. 10, 2000), at A-25 to A-27, Pub. Doc. 63, Def.'s Pub.App. Ex. 8 at 9-11.) With regard to sales to the United States military, Dole indicated that "sales are made to distributors that handle distribution to military commissaries (i.e., military base retail grocery outlets). Dole sells in large lots to the distributors. Subsequently Dole repurchases and then resells the merchandise in small lots pursuant to a price list applicable to military sales. As determined by [Commerce] in its original investigation [in 1995], Dole's sale to the distributor is the first sale to an unaffiliated purchaser. Accordingly, the sales to the distributor are reported in the U.S. sales listing while Dole's subsequent resales to the military commissaries have been excluded from the U.S. sales listing." (Id. at A-26 to A-27, Def.'s Pub.App. Ex. 8 at 10-11.)¹

Dole submitted its United States sales listings on November 6, 2000. (Dole's Section B, C, and D Questionnaire Response (Nov. 6, 2000), Prop. Doc. 21, Dole's Conf. App. Ex. 8; Dole's Section B, C, and D Questionnaire Response (Nov. 7, 2000), Pub. Doc. 92, Dole's Pub.App. Ex. 8.) The quantity of sales was reported according to the actual number of cases sold. (Dole's Section C Questionnaire Response, at 15, Dole's Pub.App. Ex. 8 at 21.) A full case of 8 oz., 15 oz., or 20 oz. cans contains 24 cans. (Id.; Dole's Section A Questionnaire Response, at A-44, Def.'s Pub.App. Ex. 8 at 19.) Dole sold product code 38900-72475 in 4-packs of 15.25 oz. cans. (Dole's Section A Questionnaire Response, at Ex. A-12(d), Dole's Pub.App. Ex. 7 at 18, 21.) The gross unit price per actual case of product code 38900-72475 was [[ ]]. (Dole's Section A Questionnaire Response (Oct. 6, 2000), at Ex. A-12(d), Prop. Doc. 8, Dole's PropApp. Ex. 7 at 18, 21.)

Dole was also asked to calculate imputed credit expenses. (Dole's Section B Questionnaire Response, at B-30, Dole's PubApp. Ex. 8 at 6.)² Commerce instructed Dole to "[r]eport the unit cost of credit computed at the actual cost of short-term debt borrowed by [Dole] in the foreign market. If [Dole] did not borrow shortterm during the period of review, [it should] use a published commercial shortterm lending rate." (Id.) Commerce defined "foreign market" as "the home market or a third-country market, whichever will be used to determine normal value." (Id. at B-1, Dole's Pub.App. Ex. 8 at 3.) Dole reported that its largest third-country market is Canada but that it did not have short-term borrowing in Canada. (Id. at B-2, B-31, Dole's Pub.App. Ex. 8 at 4, 7.) Dole used the average bank prime lending rate in Canada for the four quarters of the period of review as published in The Economist to calculate the imputed credit expenses. (Id. at B-31 and Ex. B-8, Dole's PubApp. Ex. 8 at 7-13.)

On December 11, 2000, Commerce sent a supplemental questionnaire to Dole in which Commerce noted "that for different products actual cases are not the same size" and asked Dole to "report [its] sales quantity and all adjustments on a consistent basis (e.g., kilograms)." (Commerce's Supplemental Questionnaire (Dec. 11, 2000), at 8, Pub. Doc. 115, PL's Pub.App. Ex. 9 at 10.) In its response, Dole "revised the sales database to convert the quantity and all adjustments to a common basis, a standard case equivalent (i.e., equivalent to 24 cans of 20 oz. product, approximately 30 lbs. net product weight)." (Dole's Supplemental Questionnaire Response (Jan. 16, 2001), at 38, Pub. Doc. 134, Dole's Pub.App. Ex. 11 at 5, Def.'s Pub.App. Ex. 10 at 6.)

Commerce sent Dole a letter on January 25, 2001, in which Commerce stated that it had "found that both [Dole's] U.S. and third-country databases have reported zero as the quantity of standard cases ... for a significant number of observations" and asked Dole to submit corrected databases. (Letter from U.S. Department of Commerce to Hale & Dorr LLP (on behalf of Dole) (Jan. 25, 2001), at 1, Pub. Doc. 144, PL's Pub.App. Ex. 12 at 1.) Dole filed a response addressing Commerce's concerns, but no military or other sales data was submitted. (Letter from Hale and Dorr LLP (on behalf of Dole) to U.S. Department of Commerce (Feb. 14, 2001), Pub. Doc. 152, Pl's Pub.App. Ex. 13 at 2-3.) When Dole submitted its sales reconciliation data, it again indicated that military sales were omitted from the reconciliation data. (Dole's Sales Reconciliation Data (Jan. 26, 2001), at Ex. R-18, Pub. Doc. 145, Dole's Pub.App. Ex. 12 at 8-9.)

Verification outlines were issued to Dole on January 23, 2001 and January 31, 2001. (Letter from U.S. Department of Commerce to Hale & Dorr LLP (on behalf of Dole) (Jan. 23, 2001), Pub. Doc. 141, Def.'s Pub.App. Ex. 11 ("Jan. 23 Verification Agenda"); Letter from U.S. Department of Commerce to Hale & Dorr LLP (on behalf of Dole) (Jan. 31, 2001), Pub. Doc. 146, Def.'s Pub.App. Ex. 13 ("Jan. 31 Verification Agenda").) The letters indicated that "verification is not intended to be an opportunity for submitting new factual information. We will accept new information at verification only when (1) the need for that information was not evident previously, (2) the information makes minor corrections to information already on the record, or (3) the information corroborates, supports, or clarifies information already on the record." (Jan. 23 Verification Agenda, at 2, Def.'s Pub.App. Ex. 11 at 2; Jan. 31 Verification Agenda, at 2, Def.'s Pub.App. Ex. 13 at 2.)

At the beginning of verification, Dole presented Commerce with "minor corrections" to its sales database and submitted data regarding United States military sales. (Dole's Verification Corrections (Feb. 28, 2001), Pub. Doc. 154, PL's Pub. App. Ex. 16; Dole's Verification Corrections (Feb. 27, 2001), Prop. Doc. 60, PL's Prop.App. Ex. 16.) Dole explained that the military sales had been excluded from Dole's earlier submissions based on Commerce's determination in the 1995 order, but its distribution system changed prior to the period of review in the present case...