Slip Op. 00-90

UNITED STATES COURT OF INTERNATIONAL TRADE

___________________________________		:
		:
KOMPASS FOOD TRADING INTERNATIONAL,		:
HEARTLAND FOODS INC., NORTH		:
EAST MARKETING CO., PORT ROYAL SALES, LTD.		:
and UNIPRO FOODSERVICE INCORPORATED,		:
		:
	Plaintiffs,	:
		:
J.A. KIRSCH CORP., MANDI FOODS, INC. and		:
SUMMIT IMPORT CORP.,		:
		:
	Plaintiff-Intervenors	:
		:
	v.	:
THE UNITED STATES,		:	Court No. 98-09-02848
	Defendant,	:
	and	:
		:
MAUI PINEAPPLE CO., LTD. and THE		:
INTERNATIONAL LONGSHOREMEN’S AND		:
WAREHOUSEMEN’S UNION,		:
		:
	Defendant-Intervenors.	:
___________________________________		:
[ITA’s determination affirmed.]
			Dated: July 31, 2000

     Harris Ellsworth & Levin (Herbert E. Harris II and Jeffrey S. Levin) for plaintiffs Kompass Food Trading International, Heartland Foods Inc., North East Marketing Co., Port Royal Sales, Ltd. and Unipro Foodservice Incorporated.

     Harris Ellsworth & Levin (Herbert E. Harris II and Jeffrey S. Levin) for plaintiff-intervenors J.A. Kirsch Corp., Mandi Foods, Inc. and Summit Import Corp.

     David W. Ogden, Acting Assistant Attorney General, David M. Cohen, Director, Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice (Michele D. Lynch), Cindy G. Buys, Attorney, Office of Chief Counsel for Import Administration, for defendant.

     Collier, Shannon, Rill & Scott, PLLC (Paul C. Rosenthal, David C. Smith, Jr. and Adam H. Gordon) for defendantintervenors Maui Pineapple Co., Ltd. and the International Longshoremen’s and Warehousemen’s Union.

OPINION

     RESTANI, Judge: This matter is before the court on a Motion for Judgment Upon the Agency Record, pursuant to USCIT Rule 56.2, brought by plaintiffs Kompass Food Trading International, Heartland Foods Inc., North East Marketing Co., Port Royal Sales, Ltd. and UniPro Foodservice Incorporated (collectively referred to herein as the “Kompass Group”) and plaintiff-intervenors J.A. Kirsch Corp., Mandi Foods, Inc. and Summit Import Corp. (collectively referred to herein as the “Kirsch Group”).

     Under review are the results of the U.S. Department of Commerce’s (“Commerce”) administrative review of the antidumping duty order on Canned Pineapple Fruit from Thailand, 63 Fed. Reg. 43,661 (Dep’t Commerce 1998) (notice of final results and partial rescission of antidumping duty admin. rev.) [hereinafter “Final Results”]. The Final Results covered the period from July 1, 1996 through June 30, 1997. Id.

     Both the Kompass and Kirsch Groups contest Commerce’s use of adverse facts available to Vita Food Factory Ltd. (“Vita”), the Thai producer and exporter. They further contend that Commerce did not corroborate properly the margin it assigned to Vita. Commerce responds that it selected a margin based on the adverse facts available in accordance with law.

Jurisdiction and Standard of Review

     The court has jurisdiction pursuant to 28 U.S.C. § 1581(c) (1994). In reviewing Commerce’s determination in administrative reviews, the court will hold unlawful those agency determinations which are unsupported by substantial evidence on the record, or otherwise not in accordance with law. 19 U.S.C. § 1516a(b)(1)(B) (1994).

I. Application of Total Adverse Facts Available to Vita

Background

     Both the Kompass and Kirsch Groups import canned pineapple fruit (“CPF”) from Vita, a producer and exporter of CPF from Thailand. Final Results, 63 Fed. Reg. at 43,663. Because Vita did not participate in the underlying less than fair value (“LTFV”) investigation of CPF from Thailand, Commerce originally assigned it the “all others” rate of 24.64 percent. See Canned Pineapple Fruit from Thailand, 60 Fed. Reg. 36,775, 36,776 (Dep’t Commerce 1995) (notice of antidumping duty order and amended final det.) [hereinafter “Final Determination”]. In this review, Maui Pineapple Co. Ltd. and the International Longshoremen’s and Warehousemen’s Union specifically requested an administrative review of Vita. Letter from Maui Pineapple Co. to Commerce (July 31, 1997), at 2, P.R. Doc 6, Pl.’s App., Ex. 6, at 2.

     On August 29, 1997, Commerce sent Vita an antidumping questionnaire and asked that it respond to parts A, B and C. Letter from Commerce to Vita (Aug. 29, 1997), at 1, P.R. Doc 10, Pl.’s App., Ex. 10, at 1. On January 2, 1998, Commerce requested a supplemental questionnaire response to section A. Letter from Commerce to Vita (Jan. 2, 1998), at 1, P.R. Doc. 87, Pl.’s App., Ex. 12, at 1. Soon thereafter, Vita’s counsel informed Commerce that it was withdrawing its representation of Vita. Letter from Willkie, Farr & Gallagher to Commerce (Jan. 8, 1998), at 1, P.R. Doc. 90, Pl.’s App., Ex. 13, at 1. Only after Commerce inquired as to whether Vita would continue to participate in the review did Vita respond to Commerce. Letter from Vita to Commerce (Jan. 12, 1998), at 1, P.R. Doc. 239, Def.’s App., Ex. 4, at 1. Vita explained, without specificity, that the difficult economic situation in Thailand had adversely affected its ability to participate in the review process. Id. Nevertheless, Vita indicated that it would attempt to answer Commerce’s requests without the assistance of counsel. Id.; Final Results, 63 Fed. Reg. at 43,664.

     Commerce sent Vita another request asking it to respond to section D of the antidumping questionnaire because Commerce had reasonable grounds to believe Vita made sales of the subject merchandise below the cost of production (“COP”) in Germany. Letter from Commerce to Vita (Jan. 13, 1998), at 1, P.R. Doc. 95, Pl.’s App., Ex. 15, at 1. Commerce next sent a letter requesting supplemental information for sections B and C. Letter from Commerce to Vita (Jan. 27, 1998), at 1, P.R. Doc. 107, Pl.’s App., Ex. 16, at 1. On the same day, Commerce sent Vita a letter detailing the requirements for documents to be submitted in this review because Vita no longer had counsel. Letter from Commerce to Vita (Jan. 27, 1998), at 1, P.R. Doc. 114, Pl.’s App., Ex. 17, at 1. Commerce also resent its supplemental questionnaire for Section A and extended the deadline for Vita to respond to it. Id. Finally,
Commerce sent a letter to Vita reminding it of the approaching deadlines for all of the questionnaire responses. Letter from Commerce to Vita (Feb. 5, 1998), at 1, P.R. Doc. 125, Pl.’s App., Ex. 18, at 1. Vita never responded to any of these letters from Commerce.¹ Final Results, 63 Fed. Reg. at 43,665.

     In the Final Results, Commerce used the adverse facts available rate of 51.16 percent because Vita did not respond to Commerce’s repeated requests for information. Id. at 43,665, 43,673. Both the Kompass and Kirsch Groups object to Commerce’s use of adverse facts available as to Vita.

Discussion

     The Kompass and Kirsch Groups claim that Commerce should have made a separate determination as to whether Vita cooperated to the best of its ability in accordance with Borden Inc. v. United States. 4 F. Supp.2d 1221, 1246 (Ct. Int’l Trade 1998), aff’d sub nom. F. LLI de Cecco di Filippo Fara S. Martino S.p.A. v. United States, 2000 U.S. App. LEXIS 14148 (Fed. Cir. 2000). Commerce argues that it made an adverse inference based on specific factual findings. Commerce repeatedly contacted Vita to send supplemental responses, attempted to accommodate Vita’s pro se status and provided additional instructions to Vita, all without a single response from Vita. Commerce contends that this evidence supports its determination that Vita did not act to the best of its ability and that adverse inferences were warranted. The court agrees.

     The statutory scheme requires that Commerce first decide whether the use of facts available is appropriate under 19 U.S.C. § 1677e(a) and then decide whether to apply adverse inferences under 1677e(b). See 19 U.S.C. § 1677e (1994). Commerce correctly decided to use facts available based on the requirements set forth in § 1677e(a)(2)(B).² Next, Commerce had to make a separate finding, supported by substantial evidence, under 19 U.S.C. § 1677e(b) that Vita did not act to the best of its ability to comply with Commerce’s requests. See 19 U.S.C. § 1677e(b).³ The court has held that a “mere recitation of the relevant standard is not enough for Commerce to satisfy its obligation under the statute.” Ferro Union, Inc. v. United States, 44 F. Supp.2d 1310, 1330 (Ct. Int’l Trade 1999)(citation omitted). Moreover, Commerce “must be explicit in its reasoning” when applying adverse facts available. Id. at 1331.

     In five separate letters, Commerce made efforts to accommodate Vita’s alleged difficulties and attempted to elicit a response from Vita. Final Results, 63 Fed. Reg. at 43,664. Commerce extended a deadline, provided instructions for submitting responses and even sent Vita a reminder notice that the submissions were due. Id. at 43,664-665. Vita did not respond and did not provide any explanation as to why it was unable to do so. Id.

Part 2

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1. Vita’s cooperation ended and it never responded after Commerce wrote Vita that it had received a verified allegation of third party sales at less than fair value. See Commerce’s Memorandum to File (Jan. 8, 1998), at 1-3, P.R. Doc. 92, Pl.’s App., Ex. 14, at 1-3 (using Vita’s Section B and C responses to calculate COP for each product sold in Germany and finding it likely that Vita sold similar product at prices below COP). Before Commerce informed Vita of the COP investigation, Vita had responded to Commerce’s queries. It even invited Commerce to come to Thailand and inspect the documents in its Bangkok office. Letter from Vita to Commerce, at 2, Def.’s App., Ex. 4, at 2. After Commerce informed Vita of the COP investigation, however, Vita ceased communicating.

2. 19 U.S.C. § 1677e(a)(2)(B) provides for use of facts available if:
          (2) an interested party or any other person . . .
               (B) fails to provide such information by the deadlines for submission of the information or in the form and manner requested[.]

3. 19 U.S.C. § 1677e(b) states in relevant part:
          If the administering authority or the Commission (as the case may be) finds that an interested party has failed to cooperate by not acting to the best of its ability to comply with a request for information from the administering authority or the Commission, the administering authority or the Commission (as the case may be), in reaching the applicable determination under this subtitle, may use an inference that is adverse to the interests of that party in selecting from among the facts otherwise available.