Maui Pineapple Co., Ltd. v. United States

Slip-Op. 03-42

UNITED STATES COURT OF INTERNATIONAL TRADE

BEFORE: CARMAN, CHIEF JUDGE

____________________________________

:

MAUI PINEAPPLE COMPANY, LTD., :

:

Plaintiff, :

:

v. :

:

UNITED STATES, :

: Court No. 01-01017

Defendant, : PUBLIC VERSION

:

and :

:

DOLE FOOD COMPANY, INC., DOLE :

PACKAGED FOODS COMPANY, and :

DOLE THAILAND, LTD., :

:

Defendant-Intervenors. :

____________________________________:

[Plaintiff’s Rule 56.2 motion for judgment upon the agency record is granted in part, denied in

part. Plaintiff’s motion for oral argument is denied.]

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, Of Counsel,

for Defendant.

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

Intervenors.

Dated: April 16, 2003

Court No. 01-01017 Page 2

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 Defendant-

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, Plaintiff’s 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.,

Court No. 01-01017 Page 3

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

Court No. 01-01017 Page 4

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 C-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

Prop. App. 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 Pub. App. Ex. 8 at 6.)2 Commerce instructed Dole to

1

In the 1995 order, Commerce “excluded all sales made to military commissaries from

our calculation of [United States price] because we determined that these sales do not represent

the sale to the first unrelated purchaser. In this channel of trade, the first unrelated purchaser of

[canned pineapple fruit] is a distributor for the U.S. military. This distributor takes title and

physical possession of the merchandise before reselling it to the military commissaries. Dole’s

sales to the distributor were included in our calculation of [United States price].” 1995 Final

Determination, 60 Fed. Reg. at 29,554.

2

When calculating normal value to determine if merchandise is being sold in the United

States at less than fair value, Commerce may consider differences in the circumstances of sale

and make adjustments to its calculations when the seller incurs costs in its home market that it

does not incur when selling to the United States market. See Torrington Co. v. United States,

156 F.3d 1361, 1362-63 (Fed. Cir. 1998). Such adjustments include imputed credit expenses.

Court No. 01-01017 Page 5

“[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 short-term during the period of review, [it

should] use a published commercial short-term 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 Pub. App. 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

Id. An adjustment “for differences in credit expenses is made to account for the producer’s

opportunity cost of extending credit to its customers. By allowing the purchaser to make

payment after the shipment date, the producer forgoes the opportunity to earn interest on an

immediate payment.” NTN Bearing Corp. of Am. v. United States, 104 F. Supp. 2d 110, 122 (Ct.

Int’l Trade 2000) (internal citations and quotations omitted).

Court No. 01-01017 Page 6

“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

Court No. 01-01017 Page 7

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. (Dole’s Verification Corrections, at Attach. 2, Pl.’s Pub. App. 16 at 8.)

Whereas prior to the period of review “Dole repurchased products from distributors for resale

into the military channel . . . , Dole now sells to a single military channel distributor who handles

all sales to military customers. Accordingly, [Dole asserted that] it was error to exclude the

military channel sales, and those sales should be added to the sales database. The military

channel sales accounted for just [[ ]] of all sales of subject merchandise during the [period of

review].” (Id.; Dole’s Verification Corrections, at Attach. 2, Pl.’s Prop. App. 16 at 9.) The

military sales comprised [[ ]] standard case equivalents. (“Verification of the Sales and

Cost Information in the Response of Dole Food Company, Inc., Dole Packaged Foods Company,

and Dole Thailand Ltd. in the 1999-2000 Administrative Review of Canned Pineapple Fruit from

Thailand” (Apr. 2, 2001), at Ex. U-18, Prop. Doc. 71, Def.’s Prop. App. Ex. A1 (“Verification

Report”); Pl.’s Prop. Br. at 7; Def.’s Prop. Br. at 7.)3 Commerce proceeded to verify the military

3

Dole indicated in its questionnaire responses that the pineapple it sells is sourced from

both Thailand and the Philippines at the same price and that it does not keep track of the country

of origin of the specific products shipped from its United States inventory. (Dole’s Section A

Questionnaire Response, at A-2, Def.’s Pub. App. Ex. 8 at 5.) Dole therefore reported sales

based on weighting factors derived by multiplying the total quantity and value of its United

States sales during the period of review by the ratio of shipments from Thailand to the United

States to total shipments from Thailand and the Philippines during the period of review. (Id.) At

the start of verification, Dole reported [[ ]] standard cases of both Thai and Philippine

origin product as its United States military sales data. (Verification Report, at Ex. U-18, Def.’s

Prop. App. Ex. A1; Pl.’s Prop. Br. at 7; Def.’s Prop. Br. at 7.) According to Defendant and Dole,

[[ ]] standard cases were of Thai origin product. (Def.’s Prop. Br. at 7; Dole’s Prop. Br. at

Court No. 01-01017 Page 8

sales and found no discrepancies. (Verification Report at 28-29, 31, 41, Pub. Doc. 172, Dole’s

Pub. App. Ex. 16 at 5-6, 8, 18.) Commerce included the military sales in its calculation of Dole’s

dumping margin. Notice of Preliminary Results and Partial Rescission of Antidumping Duty

Administrative Review: Canned Pineapple Fruit From Thailand, 66 Fed. Reg. 18,596, 18,599

(Apr. 10, 2001).

In its case brief to Commerce, Maui asserted that Commerce should apply adverse facts

available in determining Dole’s dumping margin because Dole’s submission of the United States

military sales data was untimely. (“Petitioners’ Case Brief For Dole Food Company, Inc., Dole

Package Foods Company, and Dole Thailand, Ltd.” (July 9, 2001), at 1-7, Pub. Doc. 197, Def.’s

Pub. App. Ex. 14 at 3-9.) Maui suggested that Commerce find a dumping margin of at least

[[ ]]% as the highest non-aberrational transaction margin. (Id. at 7, Def.’s Pub. App. Ex.

14 at 9; “Petitioners’ Case Brief For Dole Food Company, Inc., Dole Package Foods Company,

and Dole Thailand, Ltd.” (July 9, 2001), at 7, Prop. Doc. 88, Def.’s Prop. App. Ex. E at 9.) In its

administrative rebuttal brief, Dole responded that the margin suggested by Maui was the result of

a clerical error in the conversion factor for product code 38900-72475. (“Rebuttal Brief on

Behalf of Dole Food Company, et al.” (July 17, 2001), at 14, Pub. Doc. 206, Dole’s Pub. App.

Ex. 19 at 19 (“Dole’s Rebuttal Br.”).) Dole explained that when it was asked to resubmit the

sales data in standard case format, the number of cans per case for product code 38900-72475

was mistakenly listed as eight rather than four. (Id. at 16, Dole’s Pub. App. Ex. 19 at 21;

8 n.8.) Commerce accepted and verified the weighting factors. Decision Memo, at 4, Def.’s Pub.

App. Ex. 2 at 4. Dole asserts that the United States military sales of Thai origin product makes

up at most [[ ]]% of total sales of Thai origin product in the United States. (Dole’s Prop. Br. at

8 n.8.)

Court No. 01-01017 Page 9

“Rebuttal Brief on Behalf of Dole Food Company, et al.” (July 16, 2001), at Annex 3, Prop. Doc.

93, Dole’s Prop. App. Ex. 19 at 35-37.) Additionally, the conversion factor to convert the actual

case configuration of a 24-can, full-case equivalent was incorrectly indicated as 0.33.4 (Id.)

These mistakes had caused the gross unit price for the product to be incorrectly stated, and Dole

asked Commerce to accept corrections of these clerical errors. (Dole’s Rebuttal Br., at 16-17,

Dole’s Pub. App Ex. 19 at 21-22.) After providing Maui with an opportunity to comment on the

issue, Commerce relied upon Certain Fresh Cut Flowers from Colombia; Final Results of

Antidumping Duty Administrative Reviews, 61 Fed. Reg. 42,833, 42,834 (Aug. 19, 1996)

(“Colombian Flowers”) to accept the corrections. Decision Memo, at 12-13, Def.’s Pub. App.

Ex. 2 at 12-13.

Maui also asserted in its case brief that the imputed credit expense on Canadian sales was

overstated by Dole. (Pl.’s Case Br., at 14, Def.’s Pub. App. Ex. 14 at 11.) Maui argued that

Commerce should apply a hypothetical Canadian interest rate imputed from Dole’s U.S.

borrowing rate. (Id.) Commerce noted that “[w]here a respondent has no short-term borrowings

in the currency of the transaction, it is [Commerce’s] policy to use publicly available information

to establish a short-term interest rate applicable to the currency of the transaction.” Decision

Memo, at 7 cmt. 3 and n.12, Def.’s Pub. App. Ex. 2 at 7. Commerce therefore accepted the

information that Dole submitted and rejected Maui’s argument. Id.

Commerce calculated a 0.49% dumping margin for Dole. Final Results, 66 Fed. Reg. at

52,744. Maui filed its complaint with this Court on December 14, 2001.

4

Dole stated that the proper conversion factor was 0.17. (Dole’s Rebuttal Br., at 17,

Dole’s Pub. App. Ex. 19 at 22.)

Court No. 01-01017 Page 10

PARTIES’ CONTENTIONS

I. Plaintiff’s Contentions

Plaintiff contends that Commerce wrongfully accepted the military sales data submitted

by Dole. (Pl.’s Pub. Br. at 11.) First, Maui states that Commerce was statutorily prevented from

accepting the information because it was submitted after the deadline established for submission.

(Id. at 11-12 (citing 19 U.S.C. § 1677e(a) (1994)).) Maui argues that the information was

submitted more than three months after the deadline had elapsed and therefore Commerce should

have relied upon facts otherwise available rather than relying on the submitted information. (Id.

at 12.) Maui notes that while under 19 U.S.C. § 1677m(d) Commerce must allow a respondent

to remedy a deficiency in its submission, Commerce may reject a supplemental submission

where the information is not submitted within the time limits established for completion of the

review. (Id. at 12-13 (citing 19 U.S.C. § 1677m(d)(2)).) There are also certain circumstances

under which Commerce may not refuse to consider submitted information that does not meet all

applicable requirements for submission, but Maui points out that such information must be

submitted within applicable deadlines. (Id. at 13 (citing 19 U.S.C. § 1677m(e)(1)).) Maui argues

that Commerce’s reliance on its “sometimes-relied-upon ‘policy’ of accepting new factual

information after the established deadline . . . effectively reads [19 U.S.C. § 1677m(e)(1)] out of

the statute.” (Id.) Maui challenges Defendant’s insistence that the information was adequately

verified, contending that in other cases where Commerce has accepted late-reported sales,

Commerce appears to have verified every omitted sale. (Pl.’s Pub. Reply Br. at 11-12.) Maui

points out that in the present case, only four of the omitted United States military sales were

verified. (Id.)

Court No. 01-01017 Page 11

Second, Maui relies on the Court’s decision in Florex v. United States, 705 F. Supp. 582

(Ct. Int’l Trade 1988), for the principle that failure to report even one United States sale is a

“serious error.” (Pl.’s Pub. Br. at 13.) Maui also cites Tatung Co. v. United States, 18 Ct. Int’l

Trade 1137 (1994), where unreported sales were discovered at verification but Commerce

refused to accept them and instead used adverse facts available. (Id. at 13-14 (citing Tatung, 18

Ct. Int’l Trade at 1140-41).) Maui contends that Commerce’s own administrative determinations

are directly inconsistent with Commerce’s determination in this case. (Id. at 14-21.) Plaintiff

states that it “is unaware of any case in which the Court has permitted Commerce to accept such

a significant number of sales several months after the deadline established for their submission.”

(Id. at 21.) Maui disputes Commerce’s categorization of the sales data as a “minor correction”

and contends that Commerce never stated how the submitted military sales correct information

“already on the record.” (Pl.’s Pub. Reply Br. at 5, 15.)

Third, Plaintiff argues that Commerce’s “‘policy’ of accepting ‘minor corrections’

conflicts with the statute, and so must be voided.” (Pl.’s Pub. Br. at 22.) Maui also contends that

the “policy” is inconsistent with Commerce’s other articulations as to its treatment of

information submitted after an initial submission. (Id.) Maui’s view is that Commerce’s

acceptance of the military sales data is contrary to Commerce’s cautionary statements to Dole

that information must be submitted by the established deadlines. (Id.) Maui quotes Commerce’s

admonition in the verification agendas that “verification is not intended to be an opportunity for

submitting new factual information.” (Id. at 23 (quoting Jan. 23 Verification Agenda, at 2, Pl.’s

Pub. App. Ex. 18 and Jan. 31 Verification Agenda, at 2, Pl.’s Pub. App. Ex. 19) (emphasis

omitted).) Maui contends that this language and similar admonitions by Commerce during this

Court No. 01-01017 Page 12

review contradict Defendant’s argument that Commerce’s verification agenda constituted a new

request for information. (Pl.’s Pub. Reply Br. at 4.) Maui argues that if Commerce had followed

its admonitions in the verification agendas, it would have found that the omitted information

should have been submitted previously because Dole was required to report all United States

sales. (Pl.’s Pub. Br. at 23.) Maui contends that Commerce would have also found that the

military sales were not minor corrections but rather were new sales that did not corroborate,

support, or clarify information already on the record. (Id.)

In response to Defendant’s argument that Commerce has discretion in establishing

deadlines and evaluating the adequacy of information, Plaintiff maintains that the letters sent to

Dole by Commerce made clear that no new information would be accepted. (Pl.’s Pub. Reply Br.

at 13-14.) Maui relies upon Reiner Brach GmbH & Co. v. United States, 206 F. Supp. 2d 1323

(Ct. Int’l Trade 2002). Maui explains that in Reiner Brach, Commerce’s decision not to accept

the respondent’s data reported at verification was upheld because the failure to report the data

based on the respondent’s misunderstanding of its reporting obligations did not excuse the

omission. (Id. at 14 (citing Reiner Brach, 206 F. Supp. 2d at 1330-31).) Maui argues that in the

present case, Commerce had no reason to believe that Dole’s exclusion of the military sales data

was improper or that Dole’s distribution process had changed. Maui asserts that, just as in

Reiner Brach, Commerce had no reason to believe that a deficiency existed in light of the

respondent’s vague responses to Commerce’s deficiency letters. (Id. at 14-15.)

In addition, Maui challenges Commerce’s acceptance of the corrections submitted by

Dole as to product code 38900-72475. (Pl.’s Pub. Br. at 26.) Maui maintains that, in order to be

timely, the corrections should have been submitted no later than in Dole’s case brief. (Id. at 26-

Court No. 01-01017 Page 13

27.) Maui contends that because Dole submitted the corrections in its rebuttal brief, the

corrections were untimely. (Id.) According to Maui, before Commerce accepts a respondent’s

corrections of clerical errors, the conditions set forth in Colombian Flowers must be satisfied.

(Id. at 27-28.) Maui contends that Dole failed to meet two of the conditions required by

Colombian Flowers: (1) the respondent must have availed itself of the earliest reasonable

opportunity to correct the error, and (2) the clerical error allegation and corrections must be

submitted no later than the due date for the respondent’s administrative case brief. (Id. at 28-29.)

In its Decision Memo, Commerce reasoned that “[b]ecause Dole did not realize that it had made

an error until [Maui’s] allegation called its attention to certain high-margin sales, its rebuttal brief

was the earliest opportunity to correct the error.” Decision Memo, at 13, Def.’s Pub. App. Ex. 2

at 13. Maui believes that Commerce incorrectly read the first condition noted above as

permitting Dole to make corrections at its earliest opportunity, regardless of the second

requirement. (Pl.’s Pub. Br. at 29.) Plaintiff cites another agency decision in which Commerce

refused to accept corrections to a clerical error when they were first introduced in the

respondent’s rebuttal brief. (Id. at 30 (citing Certain Cold-rolled Carbon Steel Flat Products

from the Netherlands: Final Results of Antidumping Duty Administrative Review, 64 Fed. Reg.

11,825, 11,829 (Mar. 10, 1999)).) Maui states that regardless of whether it had an opportunity to

comment on the issue, Commerce should not have considered the corrections in the first place

because they were untimely. (Pl.’s Pub. Reply Br. at 19.) Maui further argues that acceptance of

the corrections of the clerical errors, as well as the military sales data, was fundamentally unfair.

(Pl.’s Pub. Br. at 30.) According to Maui, Commerce changed its policy as to the acceptance of

corrections and deviated from its application of Colombian Flowers without a reasonable

Court No. 01-01017 Page 14

explanation. (Pl.’s Pub. Reply Br. at 19-21.) Maui remarks that “[t]o sanction Commerce’s

practice of changing the rules mid-game is inherently unfair to petitioners as it forces them to

speculate about when last minute corrections will be admitted and creates an incentive for

respondents to hold off announcing mistakes, or even look for them, until the last minute.” (Pl.’s

Pub. Br. at 30-31.) Maui emphasizes that acceptance of the corrections undermines the statutory

requirement that information must be submitted by the established deadline. (Id. at 31.)

As to the imputed credit expenses accepted by Commerce, Maui maintains that the rate

submitted by Dole does not represent Dole’s creditworthiness. (Id. at 32.) Maui notes that The

Economist lending rate listing indicated that the average prime lending rate in Canada was 6.50%

while the average United States dollar prime rate was reported as 8.38%. (Id.) Maui points out

that Dole had actual borrowings in the United States and that Dole’s actual United States interest

rate was lower than the average United States dollar prime rate. (Pl.’s Prop. Br. at 32.) Maui

asserts that this difference in United States rates demonstrates that Dole is a “most favored”

borrower that is qualified for lower interest rates. (Id.) Therefore, Maui posits that “[t]he

average Canadian-dollar prime rate . . . that Dole selected is clearly higher than the rate Dole

would actually have to pay” if Dole had actual borrowings in Canada. (Id.) Maui contends that

Commerce did not address Maui’s argument that the rate selected did not represent Dole’s

creditworthiness. (Pl.’s Pub. Br. at 33-34.) According to Maui, Commerce instead relied on

Commerce’s policy to use publicly available information (a policy that Maui states it did not

challenge). (Id.) Maui disagrees with Defendant’s interpretation of Commerce’s role in the

investigative process. (Pl.’s Pub. Reply Br. at 22-23.) Maui maintains that it is Commerce’s

obligation to take into account Dole’s actual creditworthiness. (Pl.’s Pub. Br. at 33-34.) Maui

Court No. 01-01017 Page 15

asks this Court to “direct Commerce to revise its calculations to substitute a Canadian dollar

interest rate that is consistent with Dole’s actual creditworthiness.” (Id. at 34.)

Finally, Plaintiff points out that Commerce’s final margin program contained a clerical

error “whereby Commerce failed to properly convert Thailand-incurred inventory carrying costs

(DINVCARU) on U.S. sales from Thai baht to U.S. dollars, due to improper use of parentheses.”

(Id. at 34.) Maui acknowledges that it failed to notify Commerce of the error but nevertheless

asks the Court to direct Commerce to correct the error. (Id.) Maui argues that the incorrect

programming language is as follows: [[

]]. (Pl.’s Prop. Br. at 35.) According to Maui, the correct language is:

[[ ]]. (Id.)

Maui states that the addition of the internal parentheses is needed to convert inventory carrying

costs from Thai baht to U.S. dollars. (Id.) Maui asserts that if the error alleged is corrected, then

Dole’s final dumping margin would rise above the de minimis level. (Id. at 34.) In response to

Defendant’s reliance on the exhaustion doctrine, Maui counters that “[t]his Court has directed

Commerce to remedy its own clerical errors, notwithstanding the exhaustion doctrine, where the

Court otherwise issues a remand to Commerce.” (Pl.’s Pub. Reply Br. at 23-24 (citing

Serampore Indus. Pvt., Ltd. v. United States Dep’t of Commerce, 696 F. Supp. 665, 673 (Ct. Int’l

Trade 1988)).) Plaintiff also lists various “mitigating factors” that it believes support correction

of the error: (1) the correction is “uncontroversial and extremely simple”; (2) “other errors in

Commerce’s preliminary results programming masked the significance of this particular error”;

and (3) the mistake is material in that correction would result in a non-de minimis margin. (Id. at

24-25.)

Court No. 01-01017 Page 16

Plaintiff asks the Court to find that Commerce’s determination in this case is unsupported

by substantial evidence and to remand the case to Commerce.

II. Defendant’s Contentions

Defendant argues that Commerce’s decision to accept the previously unreported military

sales data was supported by substantial evidence and otherwise in accordance with law. (Def.’s

Pub. Br. at 19.) According to Defendant, Dole “promptly” informed Commerce about the change

in its military sales process and cooperated fully with Commerce’s requests for information. (Id.

at 19-20.) Defendant notes that pursuant to 19 C.F.R. § 351.301(b)(2) (2000), the deadline for

submission of factual information to Commerce in this case was December 18, 2000. (Id. at 22.)

Nevertheless, Defendant explains, an exception to the deadline established by § 351.301(b)(2)

exists when information is requested by the verifying officials, in which case the information is

due no later than seven days after the date when verification is completed. (Id.) Defendant cites

its statement in the verification agendas that it “will accept new factual information” under

certain circumstances and argues that this language “constituted a new, if limited, request for

information.” (Id. at 22-23.) As further support, Defendant points to 19 C.F.R. § 351.301(c)(2),

which states that Commerce may request that a party submit factual information “at any time

during a proceeding.” (Id. (quoting 19 C.F.R. § 351.301(c)(2)).) Defendant therefore maintains

that the military sales that Dole submitted at verification as “minor corrections” were not

untimely. (Id. at 23.)

Defendant asserts that Commerce’s policy of accepting minor corrections at verification

is reasonable. (Id. at 26.) It remarks that Commerce has been given broad discretion in

administering the antidumping laws, designating deadlines, and evaluating adequacy and

Court No. 01-01017 Page 17

accuracy of submitted information. (Id.) Defendant characterizes Commerce’s policy of

accepting minor corrections as “a typical administrative procedure entrusted to Commerce’s

discretion.” (Id. at 26-27.) Defendant argues that Maui’s interpretation of the term “deadline” in

19 U.S.C. §§ 1677e(a)(2) and 1677m(e) is “inflexible and extreme” and “fails to accord proper

deference to Commerce’s reasonable interpretation of the statute and its own administrative

procedures.” (Id. at 27.) Defendant maintains that this Court has upheld Commerce’s policy of

accepting minor corrections. (Id. (citing Coalition for the Pres. of Am. Brake Drum and Rotor

Aftermarket Mfrs. v. United States, 44 F. Supp. 2d 229, 235-37 (Ct. Int’l Trade 1999) (“American

Brake”)).) Defendant disputes Maui’s assertion that Commerce has an established rule that the

omission of a single U.S. sale is serious error. (Id. at 28.) Contrary to Maui’s assertion,

Defendant explains, the Court has sustained Commerce’s case-by-case consideration of the facts

in each review. (Id.) As to the Florex case relied upon by Maui, Defendant claims that in that

case Commerce found that the respondent failed verification for various reasons and not solely

because of the omission of a single sale. (Id. at 28-29 (citing Florex, 705 F. Supp. at 588).)

Defendant maintains that the same holds true in the Tatung case and stresses that both of these

cases predate the enactment of 19 U.S.C. § 1677m(e), which requires Commerce to consider data

meeting the criteria in that provision. (Id. at 29 (citing Tatung, 18 Ct. Int’l Trade at 1140-42 &

n.3).) Defendant responds to Maui’s claim of inconsistent treatment of cases by Commerce by

stating that Maui’s claim “ignores the judgment that Commerce brings to bear in each case.” (Id.

at 30.) In response to the cases Maui cites in which the Court affirmed Commerce’s rejection of

a respondent’s data, Defendant reasons that “Maui misunderstands the difference between what

the prior judicial decisions permit and what they require. . . . A decision of this Court upholding

Court No. 01-01017 Page 18

Commerce’s determination in the context of another case that the failure to report or disclose

some number of U.S. sales supported the use of ‘facts available’ does not establish a ‘court

imposed requirement.’” (Id.)

Defendant further argues that Commerce was correct in rejecting Maui’s request to apply

facts otherwise available rather than using the submitted sales. (Id. at 31.) Under 19 U.S.C.

§ 1677e(a)(2), Commerce may apply facts otherwise available where an interested party (1)

withholds information that Commerce requested, (2) fails to provide requested information by

applicable deadlines or in the form and manner requested, (3) significantly impedes a proceeding,

or (4) the information submitted is unverifiable. 19 U.S.C. § 1677e(a)(2). According to

Defendant, none of these criteria was met and therefore Commerce properly refused to use facts

otherwise available. (Def.’s Pub. Br. at 31-32.) In particular, as to the second circumstance

allowing use of facts otherwise available, Defendant offers that “the additional sales information

constituted minor corrections to the comprehensive response data and were, thus, submitted

within Commerce’s deadlines.” (Id. at 32.) Defendant insists that although the military sales

were originally excluded, they were fully reported before the start of verification and therefore

should not be considered “unreported sales.” (Id.) Defendant states that “Maui’s strict

construction of the statute, which would preclude Commerce from accepting even minor

corrections to submitted information ‘under any circumstances,’ is particularly inappropriate in

the context of this case,” where Maui does not dispute the accuracy of the information Dole

submitted. (Id. at 33 (quoting Pl.’s Pub. Br. at 11).) Defendant believes that Commerce had no

need or legal basis to use facts otherwise available because it had Dole’s submissions. (Id. at

34.)

Court No. 01-01017 Page 19

Defendant also disagrees with Maui’s contention that Commerce should not have

accepted Dole’s corrections of the clerical errors as to product code 38900-72475. (Id.)

Defendant points out that Maui was given an opportunity to comment on the acceptance of the

corrections and cannot show prejudice from Commerce’s acceptance and consideration of the

corrected data. (Id.) According to Defendant, the errors caused the price of product code 38900-

72475 to be understated by half when the sales were converted from the actual case format to the

standard case format. (Id. at 35.) Defendant contends that Dole acted “promptly” in informing

Commerce of the errors in its administrative rebuttal brief. (Id.) Defendant stresses that the

errors were “inadvertent” and “unintentional” and had a “significant impact upon the calculated

dumping margin,” thus making Commerce’s acceptance of the corrections proper. (Id. at 36.)

Defendant presents case law emphasizing that “the goal of the antidumping law is to arrive at the

most accurate results possible.” (Id. at 37 (citing Rhone Poulenc, Inc. v. United States, 899 F.2d

1185, 1191 (Fed. Cir. 1990); Keonig & Bauer-Albert AG v. United States, 15 F. Supp. 2d 834,

848 (Ct. Int’l Trade 1998)).) Defendant responds that Maui’s argument on this issue is contrary

to NTN Bearing Corp. v. United States, 74 F.3d 1204 (Fed. Cir. 1995). (Id.) According to

Defendant, “[t]he court [in NTN Bearing Corp.] held that the important goal of finality could not

justify Commerce’s refusal to consider corrections brought to Commerce’s attention well before

the deadline for issuance of the final result of the review.” (Id.) Defendant explains that the

policy that Commerce set forth in Colombian Flowers was adopted in response to the decision in

NTN Bearing Corp., and that the objective of Colombian Flowers was to expand rather than

restrict Commerce’s ability to accept corrections of clerical errors. (Id. at 37-38.) Defendant

concludes that “[t]he policy . . . does not restrict Commerce’s discretion to consider . . .

Court No. 01-01017 Page 20

corrections that meet all of the substantive requirements of the Colombian Flowers test and can

be considered by Commerce within the statutory deadlines for completion of the administrative

review. . . . Commerce retains the authority to relax a deadline or remove a restriction when it

determines it can do so within the constraints of available resources and statutory deadlines.”

(Id. at 38-39 (citations omitted).)

With regard to the imputed credit expenses, Defendant states that Maui fails to

demonstrate that Commerce’s policy of accepting published data regarding actual foreign

currency borrowing rates is unreasonable and does not provide any reason to question the

reliability of the information submitted. (Id. at 40-41.) Defendant posits that Commerce’s policy

is a reasonable and practical methodology for calculating the imputed credit expenses where the

antidumping statute does not specify any particular methodology or interest rate that should be

applied. (Id.) Defendant states that “Commerce’s policy does not contemplate further

adjustments for asserted ‘creditworthiness’ comparisons for borrowing in another currency.” (Id.

at 42.)

Finally, Defendant argues that Maui’s request to correct the clerical error in the final

margin program should be rejected for failure to exhaust administrative remedies on this issue.

(Id. at 42-44.) Defendant calls attention to Maui’s failure to point out the error during the

administrative proceeding or subsequent to the disclosure of the Final Results calculations. (Id.

at 44.) In Defendant’s view, Maui suggests that the time period for the error to be addressed was

insufficient but does not show how it was insufficient. (Id. at 44-45.)

Defendant asks the Court to affirm Commerce’s determination in the Final Results and

dismiss the case. (Id. at 45.)

Court No. 01-01017 Page 21

III. Defendant-Intervenors’ Contentions

Because this Court finds Dole’s arguments in this matter substantially similar to those

presented by Defendant, this Court will not recount them, although they have been duly

considered.

STANDARD OF REVIEW

Commerce’s determination will be upheld unless the Court finds that it is “unsupported

by substantial evidence on the record, or otherwise not in accordance with law.” 19 U.S.C.

§ 1516a(b)(1)(B)(i). Substantial evidence is defined as “such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.” Universal Camera Corp. v. NLRB, 340

U.S. 474, 477 (1951) (internal quotations omitted). To be in accordance with law, Commerce’s

actions must be “reasonable under the terms of the relevant statute.” Shakeproof Assembly

Components Div. of Ill. Tool Works, Inc. v. United States, 102 F. Supp. 2d 486, 489 (Ct. Int’l

Trade 2000).

ANALYSIS

I. Commerce properly accepted Dole’s submitted United States military sales data.

Under Commerce’s regulations, for the final results of an administrative review, factual

information must be submitted no later than “140 days after the last day of the anniversary

month.” 19 C.F.R. § 351.301(b)(2) (2001). The anniversary month is the calendar month in

which the anniversary of the date of publication of the order occurs. § 351.102(b). When

Court No. 01-01017 Page 22

Commerce finds that a response does not comply with its request, it “shall promptly inform the

person submitting the response of the nature of the deficiency and shall, to the extent practicable,

provide that person with an opportunity to remedy or explain the deficiency in light of the time

limits established for the completion of . . . reviews under this subtitle. If that person submits

further information in response to such deficiency and . . . such response is not submitted within

the applicable time limits, then [Commerce] may . . . disregard all or part of the original and

subsequent responses.” 19 U.S.C. § 1677m(d). Commerce may not refuse “to consider

information that is submitted by an interested party and is necessary to the determination but

does not meet all of the applicable requirements established by [Commerce] if -

(1) the information is submitted by the deadline established for its submission,

(2) the information can be verified,

(3) the information is not so incomplete that it cannot serve as a reliable basis for

reaching the applicable determination,

(4) the interested party has demonstrated that it acted to the best of its ability in providing

the information and meeting the requirements established by [Commerce] with respect to

the information, and

(5) the information can be used without undue difficulties.”

§ 1677m(e). Subject to 19 U.S.C. § 1677m(d), Commerce shall use facts otherwise available in

reaching its determination if:

“(1) necessary information is not available on the record, or

(2) an interested party . . . -

(A) withholds information that has been requested . . .,

Court No. 01-01017 Page 23

(B) fails to provide such information by the deadlines for submission of the

information or in the form and manner requested, subject to [19 U.S.C. §§

1677m(c)(1) and (e)],

(C) significantly impedes a proceeding . . ., or

(D) provides such information but the information cannot be verified.”

§ 1677e(a). As noted earlier, Commerce’s verification agendas in this case contain its standard

admonition to respondents that Commerce will accept new information only when “(1) the need

for [the] information was not previously evident, (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.)

Using the criteria of 19 U.S.C. § 1677m(e), Commerce determined that it would accept

the military sales data because (1) its stated policy allows respondents to make minor corrections

at verification and therefore the submission was not untimely; (2) the information was verified;

(3) there was no evidence at verification that the military sales data was incomplete; (4) there was

no evidence at verification of Dole’s lack of cooperation to the best of its ability; and (5) the

information could be used without difficulty. Decision Memo, at 4-5, Def.’s Pub. App. Ex. 2 at

4-5. Commerce noted that its decision to accept the data at verification “is made on a case-by-

case basis and depends on the significance of the new information. The military sales constitute

a very small percentage of Dole’s total U.S. sales.” Id. at 4, Def.’s Pub. App. Ex. 2 at 4.

Commerce properly found that the military sales were acceptable as minor corrections to

information already on the record. Dole submitted the military sales data during the earlier part

Court No. 01-01017 Page 24

of verification. In fact, Commerce had sufficient time to verify the information and use it in the

calculations of Dole’s dumping margin. (Verification Report, at 28-29, 31, 41, Def.’s Prop. App.

Ex. A at 28-29, 31, 41; “Analysis Memorandum for Dole Food Company, Dole Packaged Foods

and Dole Thailand” (Apr. 2, 2001), at 4-5, Prop. Doc. 69, Def.’s Prop. App. Ex. G at 4-5.) This

Court acknowledges that Commerce’s ability to use facts otherwise available serves as an

inducement for respondents to provide complete and accurate information in a timely manner.

See NTN Bearing Corp. of Am. v. United States, No. 98-12-03232, 2003 Ct. Intl. Trade LEXIS 8,

at *18 (Ct. Int’l Trade Jan. 24, 2003); see also Uruguay Round Agreements Act, Statement of

Administrative Action, Pub. L. No. 103-465, 868-869, reprinted in 1994 U.S.C.C.A.N. 4040,

4198 (“SAA”). The Court also acknowledges that due to deadlines and limited resources, “it is

vital that accurate information be provided promptly to allow the agency sufficient time for

review.” Tatung, 18 Ct. Int’l Trade at 1140-41 (quoting Ceramica Regiomontana, S.A. v.

United States, 636 F. Supp. 961, 967 (Ct. Int’l Trade 1986), aff’d, 810 F.2d 1137 (Fed. Cir.

1987)). At the same time, “Commerce enjoys very broad, although not unlimited, discretion with

regard to the propriety of its use of facts available.” NTN Bearing Corp., 2003 Ct. Intl. Trade

LEXIS 8, at *18. Commerce also has broad discretion to “fashion its own rules of administrative

procedure, including the authority to establish and enforce time limits concerning the submission

of written information and data.” American Brake, 44 F. Supp. 2d at 237. Further, Commerce’s

determination as to whether a respondent has complied with its request for information is

discretionary. Allegheny Ludlum Corp. v. United States, 215 F. Supp. 2d 1322, 1338 (Ct. Int’l

Trade 2000) (quoting Daido Corp. v. United States, 893 F. Supp. 43, 49-50 (Ct. Int’l Trade

1995)).

Court No. 01-01017 Page 25

In American Brake, the plaintiff challenged Commerce’s decision not to apply facts

otherwise available and Commerce’s acceptance of information before and during verification.

American Brake, 44 F. Supp. 2d at 235. The Court found the plaintiff’s argument to be

misplaced in light of the statement in Commerce’s verification agenda that it would accept new

information when the information makes minor corrections to or corroborates, supports, or

clarifies information that is already on the record. Id. at 235-36. The Court found that

Commerce’s actions conformed with 19 U.S.C. § 1677m(d) (1994). Id. at 236.5 The Court also

rejected the plaintiff’s argument that the quantity of incomplete answers required use of facts

otherwise available, reasoning that Commerce has discretion in determining if a respondent has

complied with an information request and if the errors substantially effect the integrity of the

response. Id. Commerce had verified the respondent’s submissions and determined that the

revisions were not unduly extensive, and thus all errors were corrected and Commerce was able

to calculate an accurate margin. Id. at 236-37.

As in American Brake, Commerce was able to verify the military sales data. At the time

that the military sales were submitted to Commerce, Dole’s United States sales were “already on

5

The Court in American Brake cited the Agreement on Implementation of Article VI of

the General Agreement on Tariffs and Trade 1994, Annex II, which is implemented in the United

States by the Uruguay Round Agreements Act of 1994. American Brake, 44 F. Supp. 2d at 234

& n.7, 236 n.12; see also SAA, Pub. L. No. 103-465, at 869, 1994 U.S.C.C.A.N. at 4198. Of

relevance to the case before the Court is the statement in Annex II that “[e]ven though the

information provided may not be ideal in all respects, this should not justify the authorities from

disregarding it, provided the interested party has acted to the best of its ability.” Agreement on

Implementation of Article VI of the General Agreement on Tariffs and Trade 1994, Annex II,

Point 5. In the present case, Dole does not appear to have purposefully omitted the military sales

from its United States sales database. When the omission was discovered, Dole acted promptly

to submit the information and Commerce was able to verify it. Commerce therefore acted within

the principles articulated in Annex II.

Court No. 01-01017 Page 26

the record” in that Dole had already submitted its United States sales in its questionnaire

responses. The military sales, which were a small percentage of all United States sales of the

subject merchandise reported by Dole, corrected information that was already on the record in

that the addition pf the military sales made the United States sales more accurate. As this Court

has previously found, “the issue is not the value of the errors as a percentage of total U.S. sales,

or the number of instances of errors. Rather the issue is the nature of the errors and their effect

on the validity of the submission.” Tatung, 18 Ct. Int’l Trade at 1141.

Maui questions Commerce’s verification of Dole’s military sales data, asserting that it

“disagrees . . . that the limited, four-sentence review of four military sales out of over [[ ]]

previously unreported sales means that those sales were ‘verified.’” (Pl.’s Prop. Reply Br. at 12.)

The Court, however, finds that Commerce properly verified the military sales. First, the figure

that Maui puts forth is the total number of military sales made of the subject merchandise of both

Thai and Philippine origin. (Verification Report, at Ex. U-18, Def.’s Prop. App. Ex. A1, Dole’s

Prop. App. Ex. 16.) The country of origin in this administrative review is Thailand and it is only

with the Thai origin goods that Commerce was concerned. Second, Commerce has broad

discretion is establishing verification procedures. See Torrington Co. v. United States, 146 F.

Supp. 2d 845, 897-98 (Ct. Int’l Trade 2001); Acciai Speciali Terni S.p.A. v. United States, 142 F.

Supp. 2d 969, 1007 (Ct. Int’l Trade 2001). As this Court observed in FAG Kugelfischer Georg

Schafer AG v. United States, “verification is a spot check and is not intended to be an exhaustive

examination of the respondent’s business. Commerce has considerable latitude in picking and

choosing which items it will examine in detail. In fact, Commerce enjoys wide latitude in its

verification procedures. The Court defers to the agency’s sensibility as to the depth of the

Court No. 01-01017 Page 27

inquiry needed. In the absence of evidence in the record suggesting that the need to examine

further the supporting evidence itself, the agency may accept the credibility of the document at

face value. To conclude otherwise would leave every verification effort vulnerable to successive

subsequent attacks, no matter how credible the evidence and no matter how burdensome on the

agency further inquiry would be.” FAG Kugelfischer Georg Schafer AG v. United States, 131 F.

Supp. 2d 104, 133 (Ct. Int’l Trade 2001) (alterations in original omitted) (internal citations and

quotations omitted); see also U.S. Steel Group v. United States, 22 Ct. Int’l Trade 104, 107

(1998) (“Verification is like an audit, the purpose of which is to test information provided by a

party for accuracy and completeness. Normally, an audit entails selective examination rather

than testing of an entire universe. Hence, evasion is a common possibility, but only when audits

uncover facts indicating the actuality thereof are auditors compelled to search further.”) (quoting

Bomont Indus. v. United States, 733 F. Supp. 1507, 1508 (Ct. Int’l Trade 1990)). “Commerce is

not required to verify every sale and invoice submitted.” Tatung, 18 Ct. Int’l Trade at 1140

(holding that it is the respondent’s burden to create an accurate record). In the present case,

Commerce properly exercised its discretion in verifying four of Dole’s submitted military sales.

Third, though Maui seems to argue that more investigation of the military sales data was

necessary for the data to be considered “verified,” Maui does not challenge the completeness or

accuracy of the information that Dole submitted.

Maui cites the Florex and Tatung cases for the proposition that the omission of even a

single sale is considered a “serious error.” These cases are distinguishable from the case before

the Court and do not stand for the asserted proposition. In Florex, there were numerous errors

and omissions, including the omission of “at least one U.S. sale.” Florex, 705 F. Supp. at 587.

Court No. 01-01017 Page 28

In that case, nearly half of the reported home market sales were inaccurately reported. Id. In

light of the numerous errors and omissions in the responses, the Court found that Commerce was

justified in finding a failure of verification. Id. In Tatung, the respondent’s submissions

contained errors as to commissions, sales expenses, and unit price, as well omissions of United

States sales. Tatung, 18 Ct. Int’l Trade at 1140. In affirming Commerce’s refusal to rely upon

the respondent’s submissions, the Court remarked that it is the respondent’s burden to create an

adequate record and that Commerce is not required to verify every sale to guarantee accuracy. Id.

Neither of these cases involved Commerce’s decision to refuse to use the respondent’s

submissions because of a single omission; in both cases Commerce was faced with a number of

errors and omissions which led Commerce to believe that the totality of the information

submitted was unreliable. See Florex, 705 F. Supp. at 587; Tatung, 18 Ct. Int’l Trade at 1140.

Further, in the present case, Dole’s response was not replete with errors and the military sales

omissions did not make up a significant percentage of the total United States sales. Commerce

was able to verify the information submitted and did not find errors in the submissions.

Commerce acted reasonably in relying upon the information in calculating Dole’s dumping

margin.

Maui’s reliance on Reiner Brach is also misplaced. In Reiner Brach, Commerce had

requested that the respondent submit all home market sales of the foreign like product, which

was defined as “merchandise that is sold in the foreign market and that is identical or similar to

the subject merchandise.” Reiner Brach, 206 F. Supp. 2d at 1330. The respondent’s initial

response to Commerce’s questionnaire contained information regarding sales of identical

merchandise, but it omitted sales of similar merchandise and some of the sales of identical

Court No. 01-01017 Page 29

merchandise. Id. at 1330-31. Commerce sent a supplemental questionnaire in which it asked the

respondent to explain the discrepancy between the questionnaire response and the respondent’s

submitted sales data. Id. at 1332. The respondent answered in vague terms that the figures in the

questionnaire response were based on aggregate sales data while the figures in the data

spreadsheets were based on individual invoices. Id. In light of this vague response, Commerce’s

inability to know of any further deficiency until verification, Commerce’s admonitions that new

information would not be accepted at verification, and the discretion given to Commerce, the

Court found that Commerce properly refused to accept the respondent’s data on sales of similar

merchandise submitted at verification. Id. at 1334.

Unlike the respondent in Reiner Brach, Dole indicated to Commerce before verification

that it had not submitted the military sales data based upon the 1995 order. (Dole’s Section A

Questionnaire Response, at A-26 to A-27, Def.’s Pub. App. Ex. 8 at 10-11; Dole’s Sales

Reconciliation Data, at Ex. R-18, Dole’s Pub. App. Ex. 12 at 8-9.) When Commerce questioned

Dole as to why Dole’s databases have reported zero sales for a “significant number of

observations,” Dole clearly explained that the sales were “converted first to a standard case basis

and then weighted by the shipment ratio reflecting the relative proportion of this product sourced

from Thailand. For some products, which were sourced 100% from the Philippines and 0% from

Thailand, the weighting fact is zero, and therefore the weighted quantity will be zero. Such

transactions may be disregarded in the dumping analysis, as they constitute sales of non-subject

merchandise.” (Letter from Hale and Dorr LLP (on behalf of Dole) to U.S. Department of

Commerce (Feb. 14, 2001), at 2, Pl.’s Pub. App. Ex. 13 at 2.) This explanation, as well Dole’s

explanation that the military sales were being omitted in light of the 1995 order, were not vague;

Court No. 01-01017 Page 30

rather, they demonstrate that Dole acted to the best of its ability to submit the requested

information. See Decision Memo, at 5, Def.’s Pub. App. Ex. 2 at 5. Additionally, the respondent

in Reiner Brach failed to submit all of its sales data for similar merchandise; in the present case,

however, Dole failed to submit military sales that made up only a small portion of all sales to be

reported. Thus, Reiner Brach is also distinguishable.

For the reasons stated above, the Court finds that Commerce properly applied 19 U.S.C.

§ 1677m(e) in accepting the United States military sales data.

II. Commerce properly accepted Dole’s corrections to the clerical error caused by

conversion from actual cases sold to standard case equivalents.

Maui challenges Commerce’s acceptance of Dole’s corrections of clerical errors as to

product code 38900-72475 that occurred when Commerce asked Dole to convert its data from

actual cases sold to standard case equivalents. As noted earlier, when Dole resubmitted its sales

in standard case format, the number of cans per case for product code 38900-72475 was

mistakenly listed as eight rather than four and the conversion factor to convert the actual case

configuration of a 24-can, full-case equivalent was incorrectly indicated as 0.33. (Dole’s

Rebuttal Br., at 16, Dole’s Pub. App. Ex. 19 at 21.) Maui claims that the acceptance of the

corrections was contrary to the requirements in Colombian Flowers that the corrections be

submitted at the earliest reasonable opportunity and that they be submitted no later than the

respondent’s administrative case brief. (Pl.’s Pub. Br. at 27-28.) Defendant maintains that

Commerce acted in accordance with the objective of reaching the most accurate results possible.

(Def.’s Pub. Br. at 37.) The Court holds that Commerce properly accepted the corrections of the

Court No. 01-01017 Page 31

clerical errors as to product code 38900-72475.

In Colombian Flowers, Commerce indicated that it will “accept corrections of clerical

errors under the following conditions: (1) The error in question must be demonstrated to be a

clerical error, not a methodological error, an error in judgment, or a substantive error; (2)

[Commerce] must be satisfied that the corrective documentation provided in support of the

clerical error allegation is reliable; (3) the respondent must have availed itself of the earliest

reasonable opportunity to correct the error; (4) the clerical error allegation, and any corrective

documentation, must be submitted to [Commerce] no later than the due date for the respondent’s

administrative case brief; (5) the clerical error must not entail a substantial revision of the

response; and (6) the respondent’s corrective documentation must not contradict information

previously determined to be accurate at verification.” Colombian Flowers, 61 Fed. Reg. at

42,834.

In applying the Colombian Flowers criteria to the present case, Commerce found that (1)

there was a clerical error, as opposed to a substantive error, (2) the corrected database was

reliable, (3) “[b]ecause Dole did not realize that it had made an error until [Maui’s] allegation

called [Dole’s] attention to certain high-margin sales, its rebuttal brief was the earliest

opportunity to correct the error,” (4) the corrections were not a substantial revision in light of the

small number of sales to be corrected, and (5) the corrected data did not contradict information

presented at verification. Decision Memo, at 13, Def.’s Pub. App. Ex. 2 at 13.

By accepting the corrections, Commerce avoided the use of a high dumping margin and

was able to obtain an accurate gross unit price for the merchandise sold. This Court, as well as

the U.S. Court of Appeals for the Federal Circuit (“CAFC”), has repeatedly stated that

Court No. 01-01017 Page 32

Commerce must determine dumping margins as accurately as possible and that the antidumping

laws are remedial, not punitive. Viraj Group, Ltd. v. United States, 193 F. Supp. 2d 1331, 1336

n.1 (Ct. Int’l Trade 2002) (discussing various decisions of the CAFC and this Court). The

potential tension between finality and correct results has been acknowledged, but “preliminary

determinations are ‘preliminary’ precisely because they are subject to change” and the tension

between finality and correctness does not exist when corrections are submitted after preliminary

determinations. NTN Bearing Corp., 74 F.3d at 1208; see also World Finer Foods, Inc. v. United

States, No. 99-03-00138, 2000 Ct. Intl. Trade LEXIS 72, at *29 (Ct. Int’l Trade June 26, 2000).

The criteria of Colombian Flowers were established in response to the CAFC’s decision in NTN

Bearing Corp., where the CAFC stated that it did “not agree that draconian penalties are

appropriate for the making of clerical errors in order to insure submission of proper data.

Clerical errors are by their nature not errors in judgment but merely inadvertencies. While the

parties must exercise care in their submissions, it is unreasonable to require perfection.” NTN

Bearing Corp., 74 F. 3d at 1208; Colombian Flowers, 64 Fed. Reg. at 42,834.

The Court’s decision in World Finer Foods also provides guidance on this issue. In that

case, the respondent attempted to submit corrections to its database after the preliminary results

were issued. World Finer Foods, Inc., 2000 Ct. Intl. Trade 72, at *23. Commerce rejected the

submission on the grounds that it was an untimely submission of new factual information which

did not comply with the Colombian Flowers criteria that the corrective documentation be reliable

and that it be submitted by the due date for the respondent’s case brief. Id. at *23, *24 n.16. The

Court found that the submission was a correction to a clerical error rather than new factual

information and that Commerce did not demonstrate that the information was unreliable. Id. at

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*26-27. Relying upon NTN Bearing Corp., the Court found that Commerce improperly treated

the submission as untimely and violated the notion that dumping margins are to be determined as

accurately as possible. Id. at *27-28. The Court observed that the respondent had been fully

cooperative in the administrative review and that making the correction imposed little burden on

Commerce. Id. at *28-29.

Similarly, Dole acted cooperatively in submitting information to Commerce, complying

with Commerce’s instructions to convert the sales data from actual cases sold to standard case

equivalents. The errors were inadvertent and effected a single product code in the sales data

submitted. Additionally, Commerce was able to make the corrections without difficulty and

calculate an accurate dumping margin. “Use of the mistakenly submitted information would be

punitive” to Dole, and the simple corrections were in accordance with the principle that the

antidumping laws are remedial rather than punitive in nature. Id. at *29. As noted earlier,

Commerce has discretion in establishing its administrative procedures and enforcing time limits

for submitting information. American Brake, 44 F. Supp. 2d at 237. The Court holds that

Commerce’s acceptance of the corrections of the clerical errors was a reasonable exercise of its

discretion.

III. The issues raised as to Commerce’s calculation of Dole’s imputed credit expenses are

remanded for further consideration.

Commerce explains its use of imputed credit expenses in calculating normal value in

Import Administration Policy Bulletin 98.2. Import Administration Policy Bulletin 98.2:

Imputed credit expenses and interest rates (Feb. 23, 1998), Def.’s Pub. App. Ex. 17 (“Policy

Court No. 01-01017 Page 34

Bulletin 98.2"). In that policy bulletin, Commerce explains that it “makes a circumstances of sale

adjustment to normal value (NV) to account for differences in credit terms. To make this

adjustment, [Commerce] imputes a U.S. credit expense and a foreign market credit expense on

each sale.” Policy Bulletin 98.2, at 1, Def.’s Pub. App. Ex. 17 at 1; see supra note 2. According

to the policy bulletin, “[i]n cases where a respondent has no short-term borrowings in the

currency of the transaction, [Commerce] will use publicly available information to establish a

short-term interest rate applicable to the currency of the transaction. For foreign currency

transactions, [Commerce] will establish interest rates on a case-by-case basis using publicly

available information, with a preference for published average short-term lending rates.” Id. at 6,

Def.’s Pub. App. Ex. 17 at 6. The imputed credit expense “must correspond to a dollar figure

reasonably calculated to account for [the time value of money] during the gap period between

delivery and payment. If the cost of credit is imputed in the first instance to conform with

commercial reality, it must be imputed on the basis of usual and reasonable commercial

behavior.” LMI-La Metalli Industriale, S.p.A. v. United States, 912 F.2d 455, 460-61 (Fed. Cir.

1990). As noted by Defendant, there is no statutory guidance as to how imputed credit expenses

should be calculated or what interest rate should be applied. (Def.’s Pub. Br. at 41.) After the

CAFC’s decision in LMI-La Metalli Industriale, S.p.A., Commerce sought to develop a policy

such that the interest rate used would reflect the “commercial reality” in a given case. See Policy

Bulletin 98.2, at 2-5, Def.’s Pub. App. Ex. 17 at 2-5. Commerce noted that “[i]n the case of

foreign market sales, it is not possible to develop a single consistent policy for selecting a

surrogate interest rate when a respondent has no short-term borrowings in the currency of the

transaction. The nature of the available information will vary from market to market. However,

Court No. 01-01017 Page 35

any short-term interest rate used should . . . be reasonable, readily available, and representative of

‘usual commercial behavior.’” Id. at 5.

Maui does not question the propriety of Commerce’s policy of using publicly available

information when there is no short-term borrowing rate. (Pl.’s Pub. Br. at 33; Pl.’s Pub. Reply

Br. at 22.) Rather, Maui argues that Commerce should have investigated whether the interest

rate submitted was reflective of Dole’s creditworthiness. (Id.) In the Final Results and the

Decision Memo, Commerce does not address the argument raised by Maui as to whether the

interest rate chosen is reflective of Dole’s creditworthiness. Commerce simply states that it is

following its policy, as articulated in Policy Bulletin 98.2, of using publicly available information

to establish the rate to be used. Decision Memo, at 7 & n.12, Def.’s Pub. App. Ex. 2 at 7. In

light of the CAFC’s mandate and Commerce’s policy that the rate chosen must reflect

“commercial reality” and “usual and reasonable commercial behavior,” and Commerce’s failure

to address Maui’s concerns that the rate chosen in this case does not reflect Dole’s

creditworthiness, the Court remands this issue so that Commerce may more adequately address

Maui’s arguments and explain how the rate chosen is reflective of Dole’s “usual and reasonable

commercial behavior.”

IV. The issues raised as to the existence of a clerical error in Commerce’s final margin

program language are remanded for further consideration.

Maui has identified a clerical error in Commerce’s final margin program language the

correction of which Maui maintains will cause Dole’s final dumping margin to rise above the de

minimis level. As discussed earlier, Maui argues that the incorrect programming language is as

Court No. 01-01017 Page 36

follows: [[ ]].

(Pl.’s Prop. Br. at 35.) According to Maui, the correct language is: [[

]]. (Id.) Defendant and Dole counter that

this alleged error, which was not raised during the administrative review, should not be

considered by the Court because Maui failed to exhaust administrative remedies. The Court

remands the issue to Commerce for further consideration.

Under 28 U.S.C. § 2637(d) (2000), in any civil action not specified in subsections (a)

through (c), this Court “shall, where appropriate, require the exhaustion of administrative

remedies.” 28 U.S.C. § 2637(d) (emphasis added). “Nevertheless, the Court may exercise its

discretion to prevent knowingly affirming a determination with errors.” Torrington Co. v. United

States, 21 Ct. Int’l Trade 1079, 1082 (1997). In Serampore Industries, the plaintiff raised

computer input errors for the first time before this Court and requested a remand for correction of

the errors. Serampore Indus. Pvt. Ltd. v. United States Dep’t of Commerce, 696 F. Supp. 665,

673 (Ct. Int’l Trade 1988). In light of its decision to remand for consideration of another issue,

the Court also agreed to remand for consideration of whether there was an error and for

correction if necessary. Id. In the present case, the Court is remanding this case to Commerce

for consideration of Maui’s arguments regarding Dole’s imputed credit expenses. Requiring

Maui to exhaust its administrative remedies would not be appropriate in this case. Rather than

“affirm a determination that might be based on a questionable record,” the Court remands this

issue to Commerce to determine whether there is an error in the final margin program language.

Id. If Commerce finds that there is an error, Commerce is directed to make the appropriate

corrections.

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CONCLUSION

The Court finds that Commerce’s decision to accept the United States military sales data

and the corrections to a clerical error was supported by substantial evidence or otherwise in

accordance with law. The Court remands to Commerce (1) to consider Maui’s arguments as to

the interest rate used for Dole’s imputed credit expense and explain how the rate chosen is

consistent with LMI-La Metalli Industriale, S.p.A. v. United States, 912 F.2d 455 (Fed. Cir.

1993) and Policy Bulletin 98.2, and (2) to determine whether there is a clerical error in

Commerce’s final margin program and make any necessary corrections. Plaintiff’s motion for

oral argument is denied.

____________________________

Gregory W. Carman

Chief Judge

Dated: April 16, 2003

New York, New York