946 F.Supp. 11 (CIT. 1996), 95-08-01064, Thai Pineapple Public Co., Ltd. v. United States

Docket Nº:Consol. Court No. 95-08-01064.
Citation:946 F.Supp. 11
Party Name:The THAI PINEAPPLE PUBLIC CO., LTD., et al., Plaintiffs, and Dole Food Company, Inc., et al., Plaintiff-Intervenors, v. The UNITED STATES, et al., Defendants, and Maui Pineapple Co., Ltd., Defendant-Intervenor. Slip Op. 96-182.
Case Date:November 08, 1996
Court:Court of International Trade
 
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946 F.Supp. 11 (CIT. 1996)

The THAI PINEAPPLE PUBLIC CO., LTD., et al., Plaintiffs, and

Dole Food Company, Inc., et al., Plaintiff-Intervenors,

v.

The UNITED STATES, et al., Defendants, and

Maui Pineapple Co., Ltd., Defendant-Intervenor.

Slip Op. 96-182.

Consol. Court No. 95-08-01064.

United States Court of International Trade.

Nov. 8, 1996

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[Copyrighted Material Omitted]

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Willkie, Farr & Gallagher (Kenneth J. Pierce, Washington, D.C., William B. Lindsey, Chevy Chase, and Robert L. La Frankie, Washington, D.C.), for plaintiffs.

Patton Boggs, L.L.P. (Michael D. Esch and John F. Cobau, Washington, D.C.), for plaintiff-intervenors.

Frank W. Hunger, Assistant Attorney General, David M. Cohen, Director, Commercial Litigation Branch, Civil Division, United States Department of Justice (Matthew Bode, Washington, D.C.), Stacy J. Ettinger, Attorney-Advisor, Office of the Chief Counsel for Import Administration, United States Department of Commerce, of counsel, for defendants.

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Collier, Shannon, Rill & Scott (Paul C. Rosenthal, Lynn E. Duffy and Laura A. Svat, Washington, D.C.), for defendant-intervenor.

OPINION [*]

RESTANI, Judge:

This matter is before the court on a motion for judgment on the agency record by plaintiffs, The Thai Pineapple Public Co., Ltd. ("TIPCO"), Malee Sampran Factory Public Co., Ltd. ("Malee"), and Siam Agro Industry Pineapple and Others Public Co., Ltd. ("SAICO"), (collectively the "Thai plaintiffs"), and Siam Food Products Public Co., Ltd. ("Siam Food"); by plaintiff-intervenors, Dole Food Company, Inc., Dole Packaged Foods Co., and Dole Thailand, Ltd., (collectively "Dole"); and by defendant-intervenor, Maui Pineapple Co., Ltd. ("Maui") pursuant to USCIT Rule 56.2. The administrative determination under review is the final antidumping duty determination of the United States Department of Commerce ("Commerce") entitled Canned Pineapple Fruit ["CPF"] From Thailand, 60 Fed.Reg. 29,553 (Dep't Comm.1995) (final determ. of LTFV sales) [hereinafter " Final Det."], as amended, 60 Fed.Reg. 36,775 (Dep't Comm.1995).

The Thai plaintiffs contend that Commerce erred in using their normal accounting systems for allocation of raw material fruit costs for purposes of calculating cost of production ("COP") and constructed value ("CV") and in rejecting their weight-based allocation methodologies. Dole also claims that Commerce unlawfully rejected Dole's weight-based fruit cost allocation and, in addition, improperly substituted best information available ("BIA"), used arbitrary weighting factors in calculating the weight averaged dumping margins, improperly calculated Dole's indirect expenses, and failed to fully adjust for all expense differences. Maui argues that Commerce's decision to treat Dole's sale to Germany as outside the ordinary course of trade is contrary to law and unsupported by substantial evidence.

In response, Commerce argues that all of its contested determinations were reasonable, supported by substantial evidence, and otherwise in accordance with law. Commerce does, however, request that the court remand this matter to Commerce so that it may use the same time period for weighting the dumping margin for all Dole products and for Commerce to instruct the United States Customs Service ("Customs") to assess antidumping duties only upon Dole CPF from Thailand that was entered, or withdrawn from warehouse for consumption on or after February 22, 1995, the date of publication of the amended preliminary less than fair value ("LTFV") determination relating to CPF from Thailand. Commerce's latter request for a remand is not opposed and is granted.

BACKGROUND

On June 8, 1994, Maui and others petitioned Commerce and the United States International Trade Commission ("ITC"), alleging that the CPF from Thailand was being sold at LTFV. Based upon the petition, Commerce initiated an antidumping investigation. Canned Pineapple Fruit From Thailand, 59 Fed.Reg. 34,408 (Dep't Comm.1994) (initiation of investigation).

On January 11, 1995, Commerce found preliminary dumping margins for Malee, TIPCO, and SAICO ranging from 1.12 to 9.55 percent. Canned Pineapple Fruit From Thailand, 60 Fed.Reg. 2734, 2738 (Dep't Comm.1995) (prelim. determ.) [hereinafter " Prelim. Det."]. Commerce found a de minimis dumping margin for Dole of .30 percent. Id. On February 22, 1995, Commerce revised the preliminary dumping margin for Dole from .30 to .78 percent because Commerce found a significant ministerial error in its preliminary calculation. Canned Pineapple Fruit From Thailand, 60 Fed.Reg. 9820 (Dep't Comm.1995) (amended prelim. determ.).

In February and March 1995, Commerce conducted verification and in June 1995, Commerce issued its final determination finding dumping margins for Dole, TIPCO,

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Malee, and SAICO ranging from 2.36 to 55.77 percent. Final Det., 60 Fed.Reg. at 29,571. On July 10, 1995, the ITC notified Commerce of its final affirmative injury determination, and on July 18, 1995, Commerce published an amended final determination and the antidumping duty order. Canned Pineapple Fruit From Thailand, 60 Fed.Reg. 36,775 (Dep't Comm.1995) (amended final determ. and order) [hereinafter " Amended Final Det. "]. The revised final dumping margins for Dole, TIPCO, Malee, and SAICO, after correction of ministerial errors in the final determination, range from 1.73 to 51.16 percent. Id. at 36,776.

STANDARD OF REVIEW

The court must sustain a final determination of Commerce unless it is "unsupported by substantial evidence on the record, or otherwise not in accordance with law." 19 U.S.C. § 1516a(b)(1)(B) (1988). 1

DISCUSSION

I. Dole's German Sale

In its preliminary margin calculations for Dole, Commerce matched all United States sales of two products ( i.e., CONNUMUs 1211 and 1231) 2 to a single sale of a "similar" German product 3 ( i.e., CONNUMT 1142). Final Concurrence Memorandum at 11 [hereinafter " Final Concur. Mem."]; C.R.Doc. 154; Defs.' Conf.App., Ex. 10. The United States sales of the two products together accounted for about one percent by volume of Dole's total United States database during the POI; the single German sale of the one product accounted for less than 0.01 percent by volume of Dole's total German database during the POI. Id. This accounted for over 90 percent of Dole's dumping margin. Id. Dole objected and argued that the single German sale was outside the ordinary course of trade. Commerce agreed with Dole and excluded the sale from the calculation of FMV. Final Det., 60 Fed.Reg. at 29,562-63.

Commerce calculates FMV by following the general method prescribed by 19 U.S.C. § 1677b(a)(1)(A) (1988):

The foreign market value of imported merchandise shall be the price, at the time such merchandise is first sold within the United States by the person for whom (or for whose account) the merchandise is imported to any other person ...

(A) at which such or similar merchandise is sold, or, in the absence of sales, offered for sale in the principal markets of the country from which exported, in the usual commercial quantities and in the ordinary course of trade for home consumption....

Id. § 1677b(a)(1)(A) (emphasis added). Under the statute,

[t]he term "ordinary course of trade" means the conditions and practices which, for a reasonable time prior to the exportation of the merchandise which is the subject of the investigation, have been normal in the trade under consideration with respect to merchandise of the same class or kind.

Id. § 1677(15) (1988). In determining whether a sale is outside the ordinary course of trade, Commerce must consider "all the circumstances particular to the sales in question." CEMEX, S.A. v. United States, Slip Op. 95-72, at 6, 1995 WL 251561 (Apr. 24, 1995) (quotations omitted); see also Final Det., 60 Fed.Reg. at 29,563. Furthermore, "Commerce, in its discretion, chooses how best to analyze the many factors involved in a determination of whether sales are made with in the ordinary course of trade." Laclede Steel Co. v. United States, Slip Op. 95-

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144, at 6, 1995 WL 476716 (Aug. 11, 1995). Commerce's "analysis of these factors [is] guided by the purpose of the ordinary course of trade provision, namely, 'to prevent dumping margins from being based on sales which are not representative' of the home [or third country] market." CEMEX, S.A., Slip Op. 95-72, at 6 (quoting Monsanto Co. v. United States, 12 CIT 937, 940, 698 F.Supp. 275, 278 (1988)).

Maui contends that Commerce's analysis failed to satisfy the legal standard for treating Dole's German sale as outside the ordinary course of trade. Maui argues that Commerce failed to consider the totality of the circumstances surrounding the sale, as required by the statute, and ignored overwhelming record evidence demonstrating that the sale was not unrepresentative when assessed against other sales in Dole's third-country sales database, including those prior to the POI. Maui argues that Commerce's decision was based upon only three factors: volume, price, and demand, which alone are insufficient grounds for finding the sale was outside the ordinary course of trade, and that Commerce erred in failing to consider other factors ( e.g., merchandise standards; use of the merchandise; whether the sale was promotional or a trial sale; or whether the price of the sale was specially negotiated). Finally, Maui claims that Commerce wrongly considered only gross unit prices rather than net prices and relied on unverified data.

The court finds that Commerce's decision to exclude Dole's German sale was reasonable and supported by substantial evidence. In making its final determination, Commerce evaluated eight factors: customers, terms of sale, volume of sales, frequency of sales, sales quantity, sales price, profitability, and market demand. Final Concur. Mem. at 13-14; see also Final Det., 60 Fed.Reg. at...

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