Bergerac, N.C. v. U.S.

• Citation: 102 F.Supp.2d 497
• Decision Date: 21 June 2000
• Docket Number: No. 98-10-03045.,Slip op. 00-71.,98-10-03045.
• Parties: BERGERAC, N.C., Plaintiff, v. UNITED STATES, Defendant, and Hercules, Inc., Defendant-Intervenor.
• Court: U.S. Court of International Trade

102 F.Supp.2d 497

BERGERAC, N.C., Plaintiff, v. UNITED STATES, Defendant, and Hercules, Inc., Defendant-Intervenor.

No. 98-10-03045.

Slip op. 00-71.

United States Court of International Trade.

June 21, 2000.

Ablondi, Foster, Sobin & Davidow, P.C. (James Taylor, Jr.), Washington, D.C., for plaintiff.

David W. Ogden, Acting Assistant Attorney General of the United States; David M. Cohen, Director, Commercial Litigation Branch, Civil Division, United States Department of Justice (Lucius B. Lau); Mark A. Barnett, Office of the Chief Counsel for Import Administration, United States Department of Commerce, of counsel, for defendant.

Miller Thomson Wickens & Lebow LLP (Edward M. Lebow and Beverly D. Ross), Washington, D.C., for defendant-intervenor.

OPINION

CARMAN, Chief Judge.

This matter is before the Court on plaintiff's, Bergerac, N.C. (Bergerac), motion for Judgment Upon An Agency Record pursuant to U.S. CIT R. 56.2. Plaintiff asserts the U.S. Department of Commerce's (Commerce) refusal to exclude certain home market sales as sample sales outside the ordinary course of trade in the final results of Commerce's antidumping administrative review in Industrial Nitrocellulose From France, 63 Fed.Reg. 49,085 (Sept. 14, 1998) (final results of antidumping administrative review) (Final Results), is not supported by substantial evidence and is not otherwise in accordance with law. Plaintiff requests this Court remand the action to Commerce with instructions to exclude Bergerac's home market sales of priced samples from the margin calculation and to articulate meaningful standards from which a respondent may discern whether its home market sample sales will be regarded as sales in the ordinary course of trade. Defendant, United States, and defendant-intervenor, Hercules, Inc. (Hercules), oppose the motion stating the Final Results are supported by substantial evidence and are otherwise in accordance with law.

This Court has jurisdiction pursuant to 28 U.S.C. § 1581(c) (1994). For the reasons which follow, plaintiff's motion for Judgment Upon An Agency record is denied, Commerce's Final Results are sustained in their entirety, and this action is dismissed.

BACKGROUND

On September 25, 1997, Commerce initiated an administrative review of antidumping duty orders and findings of certain industrial nitrocellulose from, among other countries, France. See Initiation of Antidumping and Countervailing Duty Administrative Reviews, 62 Fed.Reg. 50,292 (Sept. 25, 1997). Bergerac is a producer in France of industrial nitrocellulose, the merchandise at issue in the review. In response to Commerce's initial questionnaire requesting detailed information on U.S. and home market sales, plaintiff claimed it "often sends samples to customers for approval" and that "[s]ample sales ... are outside the ordinary course of trade...." (Bergerac Questionnaire Responses, Plaintiff's Appendix Pursuant to CIT Rule 56.2 (App.), Public Document (Pub.Doc.) 14, at A-12 and B-12.)

Commerce requested in a supplemental questionnaire information concerning Bergerac's "zero-value transactions (samples and prototypes)" to determine whether the reported transactions "were outside the ordinary course of trade." (Bergerac Supplemental Questionnaire, App., Pub. Doc. 20, at 17.) Specifically, Commerce requested Bergerac:

a) describe how the orders for these sales were communicated;

b) indicate the documents available to demonstrate that these sale[s] are in fact samples and prototypes;

c) explain whether the customer in question purchased these particular items before the date of the claimed sample sale and, if so, indicate how many were purchased;

d) contrast the prices and quantities involved in these purchases with normal sales of these items, if any, to other customers and subsequent sales to the same customer;

e) indicate the ultimate disposition of this merchandise, explain whether title was passed to the recipient of the merchandise, and indicate whether the merchandise was tested and destroyed during the trial application;

f) describe any non-monetary payment and/or consideration made by your customer for the transactions.

(Id. (emphasis in original).) Bergerac responded by providing information regarding both priced and zero-value transactions including information concerning free samples and priced samples. Bergerac filed its response the same date as the statutory deadline for submissions of unsolicited factual information, January 20, 1998. See 19 C.F.R. § 351.301(b)(2) (1998)¹.

In its April 17, 1998, decision memo, Commerce stated it did not consider plaintiff's priced sample sales to be outside the ordinary course of trade and, therefore, such sales were not excluded by Commerce in its margin calculation. Specifically, Commerce stated, "[Bergerac] did not provide adequate evidence that any of these sales were unique or unusual and, therefore, outside the ordinary course of trade." (Analysis Methodology Used to Determine Dumping Margins for Bergerac, N.C., App., Pub.Doc. 31, at 5.)

In its case brief filed June 10, 1998, and at a public hearing held on June 18, 1998, Bergerac attempted to provide additional information concerning its priced samples. Commerce rejected such information, finding that it was untimely because Commerce had not specifically solicited the additional information after January 20, 1998.

On September 14, 1998, Commerce issued its final results stating it disagreed with Bergerac that it should exclude certain home market sales because they were outside the ordinary course of trade. Specifically regarding priced samples, Commerce stated, "[W]hile it is clear that the invoices for these sales indicated that they were sample sales, such indication is not sufficient to demonstrate that the sale is unique or unusual or otherwise outside the ordinary course of trade." Final Results, 63 Fed.Reg. at 49,087. Commerce further stated, "Bergerac's argument that these sales were at a high price to cover the high cost of shipping small packages does not address the Department's `unique or unusual' standard concerning ordinary course of trade." Id. Accordingly, Commerce found Bergerac had not met its burden of proof in demonstrating that the sales in question were outside the ordinary course of trade. See id. at 49,087-88. Bergerac timely filed a summons in this action on October 13, 1998.

CONTENTIONS OF THE PARTIES

A. Plaintiff

Plaintiff argues it met its burden of demonstrating that the sales in question were sales of sample merchandise outside the ordinary course of trade. Plaintiff points to the commercial definition of the term "sample" that is defined as a "small quantity" that is "presented for inspection or examination." BLACK'S LAW DICTIONARY 1203 (5th ed.1979). Plaintiff asserts it provided probative evidence that its priced sample sales were contemporaneously identified as priced samples in normal business records, generally smaller in quantity and higher in price than normal commercial sales, and generally tested and destroyed. Taking the evidence as a whole, Bergerac argues it satisfied its burden of proof that the sales in question were priced sample sales not in the ordinary course of trade.

Plaintiff argues Commerce's reference to certain agency decisions is inapposite because in the cases cited the challenging parties only provided evidence regarding higher prices or higher profits or smaller quantities in support of their claims that certain sales were outside the ordinary course of trade. See, e.g., Large Newspaper Printing Presses and Components Thereof, Whether Assembled or Unassembled, From Germany, 61 Fed.Reg. 38,166 (July 23, 1996); Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof From France, et al., 62 Fed.Reg. 54,043, at 54,065-66 (Oct. 17, 1997) (final results of antidumping duty administrative reviews). Here, however, plaintiff contends the sample sales should have been considered outside the ordinary course of trade because their character as samples for testing purposes in non-commercial quantities placed them outside the ordinary course of trade.

Further, plaintiff argues, Commerce's reference to these cases in the Final Results demonstrates Commerce failed to consider the totality of the evidence before it and, in particular, overlooked key evidence provided by Bergerac—namely, that the samples were for testing purposes. In the past, Commerce has excluded home market sales of test samples on the grounds that they were outside the ordinary course of trade. See, e.g., Granular Polytetrafluoroethylene Resin From Japan, 58 Fed.Reg. 50,343, at 50,345 (Sept. 27, 1993) (final).

Bergerac further contends, in as much as it satisfied its burden of proof, Commerce failed to meet its burden of rebutting the evidence. Bergerac states that Commerce did not point to any inconsistencies or contradictions in the information provided but rather stated that "`Bergerac did not respond as to whether the customer had purchased these particular items previously.'" (Brief in Support of Plaintiff's Motion for Judgment on the Agency Record Pursuant to CIT Rule 56.2, at 18 (Plaintiff's Br.) (quoting Final Results, 63 Fed.Reg. at 49,088).) Bergerac argues, however, it did provide such information. According to Bergerac, it stated in its case brief that "[s]amples are sold to customers." (Bergerac's Case Brief, App., Pub.Doc. 47, at 2 n. 1.) Moreover, Bergerac contends, whether the samples were sold to existing customers is irrelevant to whether the sample sales are outside the ordinary course of trade.

Bergerac additionally argues that although Commerce found Bergerac failed to demonstrate the priced sample sales were "unique or unusual," there is no body of case law nor any regulation which defines "unique or unusual" as a separate standard or identifies factors relevant to such a standard.

Bergerac also criticizes Hercules's and defendant's arguments as inadequate. Bergerac argues...