                          Slip Op. 09 - 66

           UNITED STATES COURT OF INTERNATIONAL TRADE

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SEYLINCO, S.A.,                      :

                         Plaintiff, :
                  v.
                                       :
UNITED STATES,
                                       :   Court No. 07-00200
                          Defendant,
                 -and-                 :

AMERICAN HONEY PRODUCERS ASSOCIATION :
and SIOUX HONEY ASSOCIATION,
                                     :
               Intervenor-Defendants.
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                         Memorandum & Order

[Plaintiff’s motion for judgment on the
 agency record denied; action dismissed.]

                                           Decided:   June 26, 2009

     deKiefer & Horgan (Gregory S. Menegaz and John J. Kenkel)
for the plaintiff.

     Tony West, Assistant Attorney General; Jeanne E. Davidson,
Director, Patricia M. McCarthy, Assistant Director, Commercial
Litigation Branch, Civil Division, U.S. Department of Justice
(Richard P. Schroeder); and Office of the Chief Counsel for
Import Administration, U.S. Department of Commerce (Matthew D.
Walden), of counsel, for the defendant.

     Kelley Drye & Warren LLP (Michael J. Coursey and R. Alan
Luberda) for the intervenor-defendants.


          AQUILINO, Senior Judge:      The plaintiff has commenced

this action and interposed a motion for judgment on the record
Court No. 07-00200                                                      Page 2

compiled      by    the    International     Trade      Administration,      U.S.

Department of Commerce (“ITA”), sub nom. Honey from Argentina:

Notice   of     Final     Results   of   Antidumping     Duty   Administrative

Review and Determination Not to Revoke in Part, 72 Fed.Reg.

25,245   (May      4,   2007),   which   state   that   the   agency   had   been

requested to revoke its underlying antidumping-duty order

     in regard to Seylinco pursuant to 19 CFR § 351.222
     based   on   three    consecutive   zero   margins.   We
     preliminarily determined not to revoke the order with
     respect to Seylinco because it did not ship in
     commercial quantities during each of the three years
     forming the basis of its request.       . . . For these
     final   results,   the   Department   has  relied   upon
     Seylinco’s sales activity during the 2002-2003, 2003-
     2004, and 2004-2005 PORs in making its decision with
     respect to Seylinco’s revocation request. Although
     Seylinco had three consecutive years of sales at not
     less than normal value (NV), Seylinco did not sell
     subject merchandize in commercial quantities in each
     of these three years forming the basis of the request
     for revocation. Thus, Seylinco is not eligible for
     consideration for revocation pursuant to 19 CFR
     351.222(d)(1). Accordingly, we have determined not to
     revoke the antidumping duty order with respect to
     Seylinco.1


                                         I

              The court’s subject-matter jurisdiction is pursuant to

28 U.S.C. §§ 1581(c), 2631(c), and the standard of review of

defendant’s foregoing determination is whether it is unsupported

     1
      72 Fed.Reg. at 25,245. “PORs” are the particular periods
of ITA review, during which the plaintiff claims honey
“containers . . . fully loaded, although the number of drums
could fluctuate slightly from container to container”, totalled
25, four, one, and 24. Plaintiff’s Rule 56.2 Memorandum, p. 5.
Court No. 07-00200                                                        Page 3

by   substantial    evidence    on   the    record,   or    otherwise     not    in

accordance   with   law.   19   U.S.C.      §1561a(b)(1)(B).       And,   as    the

determination   indicates,      that   law    includes     an    ITA   regulation

with regard to revocation of antidumping-duty orders, namely, 19

C.F.R.   §351.222(b),      which     sets    forth    the       factors   to     be

considered, including:

           (A) Whether one or more exporters or producers
      covered by the order have sold the merchandise at not
      less than normal value for a period of at least three
      consecutive years; . . . and . . .

           (C) Whether      the continued application of the
      antidumping duty      order is otherwise necessary to
      offset dumping.

           (ii) If the Secretary determines, based upon the
      criteria in paragraphs (b)(2)(i)(A) through (C) of
      this section, that the antidumping duty order as to
      those producers or exporters is no longer warranted,
      the Secretary will revoke the order as to those
      producers or exporters.
19 C.F.R. §351.222(b)(2)(i)(A), (C) and (2)(ii).

      . . . However, . . . before revoking an order or
      terminating a suspended investigation, the Secretary
      must be satisfied that, during each of the three . . .
      years, there were exports to the United States in
      commercial quantities of the subject merchandise to
      which a revocation or termination will apply.

19 C.F.R. §351.222(d)(1).       Hence, there is a requirement that

an exporter or producer requesting revocation certify that,

      during each of the consecutive years referred to in
      paragraph (b) of this section, [it] sold the subject
      merchandise to the United States in commercial
      quantities[.]
Court No. 07-00200                                                      Page 4

19   C.F.R.    §351.222(e)(1)(ii).      Whereupon,   the    requirement     of

“commercial quantities” is the rub in this action.


              Counsel   for   the   plaintiff   explain    that   one   fully-

loaded container

      holds approximately 60 drums weighing approximately
      330 kilograms – in retail terms, the equivalent of
      approximately 60,000 12-ounce honeybear jars. Seylinco
      submits   that   these   quantities  were   commercial
      quantities per se. Indeed, Seylinco submits that the
      parties are in agreement that bulk honey is typically,
      if not exclusively, sold in fully loaded containers –
      as are most bulk items transported by ocean freight –
      so the record cannot support the Department’s finding
      that a fully loaded shipping container is not a
      “commercial quantity.”

Plaintiff’s Rule 56.2 Memorandum, p. 3. The summary of their

argument is that

      Seylinco   sold  at   de  minimis    margins in three
      consecutive reviews. By petitioners’ own admission,
      Seylinco sold commercial quantities – at least one
      container – at not less than fair value in three
      consecutive PORs. The regulations do not qualify
      “commercial quantities” so it is arbitrary and
      capricious for the Department to determine that an
      unspecified level of commercial quantities now is
      required to qualify for revocation.2

      2
       Plaintiff’s Rule 56.2 Memorandum, p. 8.            Moreover, the
plaintiff

      does not concede that the minimum commercial quantity is a
      container. A full 20 foot container of honey drums contains
      approximately 60 . . . weighing approximately 20,000 kgs in
      total.   Even half a container would contain 30 drums and
      10,000 kgs of honey.

Id. at 8-9.
Court No. 07-00200                                                             Page 5

             The defendant responds that the commercial-quantities

standard

      is evaluated on a case-by-case basis. . . . That is,
      there is no magic number or magic level of sales that
      would indicate sales in commercial quantities; rather,
      each revocation request must be evaluated based upon
      its own facts, and the circumstances of the companies
      and industry in question.


Defendant’s Memorandum, p. 20.               It proceeds to point out that

the ITA generally uses the original period of investigation as

its benchmark, but Seylinco did not ship honey to the United

States     during     that    timeframe,     whereupon       it   looked    to    the

company’s shipments during the period of first administrative

review for a benchmark.           See id. at 20-21.           That turned out to

be 25 containers, followed, as indicated above, by shipments of

four, one, and 24 in the next three years.                See id. at 21.


             If, as the plaintiff explains, a scare of possible

contamination of its honey “drastically curtailed”3 exports to

the   United    States       during   the   two   years      of   but   five     total

Seylinco     containers,       followed     by   the   24,   this   court      cannot

conclude that the chosen agency benchmark of 25, on its face, is

out of order.         And, this being the case, the court also cannot

conclude that it was arbitrary and capricious and an abuse of


      3
          Id. at 5.
Court No. 07-00200                                                          Page 6

discretion    for   the    ITA    to    have    determined   not   to    count   the

single,    third    POR    container       as    “commercial   quantities”       of

Seylinco merchandise.          That is, it was in accordance with law to

have so determined.            See, e.g., Shandong Huarong Machinery Co.

v. United States, 31 CIT __, Slip Op. 07-169 (Nov. 20, 2007).


                                          II
             In   view    of    the    foregoing,    plaintiff’s        motion   for

judgment upon the agency record must be denied.4                   Judgment will

enter accordingly.

             So ordered.
Decided:   New York, New York
           June 26, 2009


                                       ___/s/ Thomas J. Aquilino, Jr.____
                                                 Senior Judge




     4
       Given the quality of the written submissions on all sides,
plaintiff’s motion for oral argument can be, and it also hereby
is, denied.
