Citrosuco Paulista, SA v. US

• Decision Date: 30 December 1988
• Docket Number: Court No. 87-06-00703.
• Parties: CITROSUCO PAULISTA, S.A., Plaintiff, v. UNITED STATES and the United States International Trade Commission, Defendants, and Alcoma Packing Company et al., Defendant-Intervenors.
• Court: U.S. Court of International Trade

704 F. Supp. 1075

CITROSUCO PAULISTA, S.A., Plaintiff, v. UNITED STATES and the United States International Trade Commission, Defendants, and Alcoma Packing Company et al., Defendant-Intervenors.

Court No. 87-06-00703.

United States Court of International Trade.

December 30, 1988.

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McDermott, Will & Emery (Robert G. Kalik, William H. Barrett, Daniel C. Beckhard, Amy E. Hancock, and John H. Walsh), Washington, D.C., for Citrosuco Paulista, S.A.

Richard K. Willard, Asst. Atty. Gen., David M. Cohen, Director, Commercial Litigation Branch, Civil Div., U.S. Dept. of Justice, (Elizabeth C. Seastrum), and Anne W. White, Attorney-Advisor for the International Trade Administration, both for the U.S. Dept. of Commerce; and Lyn M. Schlitt, Gen. Counsel, James A. Toupin, Asst. Gen. Counsel, (Laurie B. Horvitz and Kristian Anderson), for U.S. Intern. Trade Comm'n, Washington, D.C.,

Barnes, Richardson & Colburn (E. Thomas Honey, New York City, James J. Lundquist, Chicago, Ill., and Matthew T. McGrath), Washington, D.C., for defendant-intervenors Alcoma Packing Co., Berry Citrus Products, Inc., B & W Canning Co., Caulkins Indiantown Citrus Co., Citrus World, and Citrus Belle, Inc., and for amicus curiae Florida Citrus Mut.

DiCARLO, Judge:

A Brazilian producer of frozen concentrated orange juice (FCOJ), Citrosuco Paulista, S.A. (Citrosuco), moves pursuant to Rule 56.1 of the Rules of this Court to contest the final determination of the International Trade Administration of the United States Department of Commerce (Commerce) that Citrosuco was dumping FCOJ in the United States, Frozen Concentrated Orange Juice From Brazil: Final Determination of Sales at Less Than Fair Value, 52 Fed.Reg. 8324 (Mar. 17, 1987), and the final determination of the United States International Trade Commission (Commission) that an industry in the United States has been materially injured or threatened with material injury by reason of the less than fair value imports of FCOJ. Frozen Concentrated Orange Juice from Brazil, Inv. No. 731-TA-326 (Final), USITC Pub. 1970 (Apr.1987).

The Court has jurisdiction under 28 U.S. C. § 1581(c) (1982). The Court holds that Florida Citrus Mutual (FCM) does not qualify as a organization which represents producers of a "like product," but that growers of round oranges are includable in the domestic industry which produces frozen concentrated orange juice. The Court finds that since Commerce has statutory discretion to allow amendment of a dumping petition at any time, and since Commerce may self-initiate a dumping petition, any defect in a petition filed by an orange growers' voluntary marketing association was cured when domestic producers of the like product were added as co-petitioners and Commerce was not required to start a new investigation. The Court also finds that the Commission's majority views on like product, material injury, and threat of material injury are according to law and supported by substantial evidence on the record as a whole, but remands to the entire Commission to (1) explain how or whether the Commission considered certain fair value inventories in Brazil, and (2) reconsider the significance of inventories in the United States in light of evidence that those inventories were decreasing rather than remaining stable.

BACKGROUND

FCM is a voluntary cooperative marketing association of "growers of citrus fruit for processing and processors of citrus fruit." R. 28. On May 9, 1986, FCM filed antidumping petitions with Commerce and the Commission "on behalf of the U.S. industry producing FCOJ, including growers and processors." R. 28.

A. Proceedings at Commerce

Ten days after the petition was filed, the Florida Citrus Processors Association, whose members accounted for approximately 85 percent of all FCOJ consumed in the United States, informed Commerce that "FCM does not represent the entire industry" and that FCM's petition had been filed "without the knowledge of the Processors Association." R. 73. This letter did not express opposition to the petition, but only informed Commerce that this particular association had not been consulted before the petition was filed. Nineteen days after the filing, the National Juice Products Association, another juice products association, sent a letter to Commerce expressing opposition to the petition on behalf all but three of its members. R. 77, 79.

Commerce has 20 days to determine whether a petition sets forth the allegations necessary to impose antidumping duties. 19 U.S.C. § 1673a(c) (1982). On the twentieth day, Commerce determined that FCM's petition met the requirements of 19 U.S.C. § 1673a(b)(1) (Supp. IV 1986) to initiate an antidumping investigation of FCOJ from Brazil pursuant to 19 U.S.C. § 1673a(c)(2) (1982). Frozen Concentrated Orange Juice From Brazil: Initiation of Antidumping Duty Investigation, 51 Fed. Reg. 20,321 (June 4, 1986). Commerce identified the imports under investigation as

FCOJ in a highly concentrated form for transport and further processing, sometimes referred to as frozen concentrated orange juice for manufacturing, currently provided for under the Tariff Schedules of the United States (TSUS) item number 165.29.

Id. at 20,321.

After Commerce initiated the investigation, various domestic producers of FCOJ which owned groves that produce oranges for processing into FCOJ requested that they be joined with FCM as a "co-petitioners" because they were producers of a like product. R. 900, 929, 1065, 1068, 1144. Commerce stated in its preliminary determination that because these co-petitioners were "producers of the like product, and thus interested parties, we need not address whether FCM, an association of orange growers, has standing in this case." Frozen Concentrated Orange Juice From Brazil; Preliminary Determination of Sales at Less Than Fair Value, 51 Fed. Reg. 37,618, 37,619 (Oct. 23, 1986). Commerce did not determine whether FCM had standing to initiate the investigation. Frozen Concentrated Orange Juice From Brazil: Final Determination of Sales at Less Than Fair Value, 52 Fed.Reg. 8324, 8324-26 (Mar. 17, 1987).

B. The Commission's Determination

In the Commission's final determination, one commissioner found material injury and two commissioners found a threat of material injury. Two dissenting commissioners found neither an injury nor a threat of injury. Frozen Concentrated Orange Juice from Brazil, Inv. No. 731-TA-326 (Final), USITC Pub.1970 (Apr.1987). The antidumping duty order was issued following the Commission majority's findings of material injury and threat of material injury. Antidumping Duty Order; Frozen Concentrated Orange Juice from Brazil, 52 Fed.Reg. 16,426 (May 5, 1987).

DISCUSSION

The issues presented for decision concern (A) FCM's motion to intervene, (B) Citrosuco's arguments against Commerce, and (C) Citrosuco's arguments against the Commission's determinations of material injury and threatened material injury. The standard of review of determinations of Commerce and the Commission is set forth in Negev Phosphates, Ltd. v. United States, 12 CIT ___, 699 F.Supp. 938, 942 (1988).

A. Motion to Intervene

On February 8, 1988, the Court granted leave to intervene to six domestic producers of FCOJ. The Court reserved ruling on FCM's motion to intervene but allowed FCM to participate in the proceedings as amicus curiae.

The right to intervene in an action before the Court of International Trade is limited to "an interested party who was a party to the proceeding in connection with which the matter arose." 28 U.S.C. § 2631(j)(1)(B) (1982). The statute does not allow for permissive intervention. Special Commodity Group on Non-Rubber Footwear From Brazil v. United States, 9 CIT 481, 482-83, 620 F.Supp. 719, 721 (1985). FCM was a party to the administrative proceedings since it filed the antidumping petition to initiate an antidumping investigation. See RSI India (Pvt.) Ltd. v. United States, 12 CIT ___, 678 F.Supp. 304, 306-07 (1988); RSI India (Pvt.) Ltd. v. United States, 12 CIT ___, 699 F.Supp. 929, 932 (1988) (importers considered parties to the proceeding where they had filed comments one month before Commerce published its administrative review results, and Commerce had stated that it considered all of the comments received).

FCM's motion to intervene presents the issue of whether growers of round oranges used to produce FCOJ may be considered an "interested party." The statutory definitions of the term "interested party" include:

(C) a manufacturer, producer, or wholesaler in the United States of a like product,

(D) a certified trade union or recognized union or group of workers which is representative of an industry engaged in the manufacture, production, or wholesale in the United States of a like product,

(E) a trade or business association a majority of whose members manufacture, produce, or wholesale a like product in the United States, and

(F) an association, a majority of whose members is composed of interested parties described in subparagraph (C), (D), or (E) with respect to a like product.

19 U.S.C. § 1677(9) (1982 & Supp. IV 1986) (emphasis added). It appears that Commerce's regulations have not yet incorporated paragraph (F) of 19 U.S.C. § 1677(9) (Supp. IV 1986). See, e.g., 19 C.F.R. §§ 353.36(a), 353.38, 355.7(c), 355.26(a), 355.27, and 355.31 (1988).

Whether FCM may be considered an "interested party" depends on whether round oranges can be considered a "like product" to frozen concentrated orange juice.

A "like product" is defined as "a product which is like, or in the absence of like, most similar in characteristics and uses with, the article subject to an investigation...." 19 U.S.C. § 1677(10) (1982). See also Asociacion Colombiana de Exportadores de Flores v. United States, 12 CIT ___, 693 F.Supp. 1165 (1988); S.Rep. No. 249, 96th Cong., 1st Sess. 90-91, reprinted in 1979 U.S.Code...