Slip Op. 10–131
UNITED STATES COURT OF INTERNATIONAL TRADE
FISCHER S.A. COMERCIO, INDUSTRIA
AND AGRICULTURA, and CITROSUCO
NORTH AMERICA, INC,
Plaintiffs,
v. Before: Gregory W. Carman, Judge
Court No. 08 00277
UNITED STATES,
Defendant,
and
FLORIDA CITRUS MUTUAL, A. DUDA &
SONS, CITRUS WORLD, INC., and
SOUTHERN GARDENS CITRUS
PROCESSING CORPORATION,
Defendant Intervenors.
[Remand Results are sustained and judgment is entered for Defendant.]
Kalik Lewin (Robert G. Kalik and Brenna Steinert Lenchak); Galvin & Mlawski (John
Joseph Galvin), of counsel, for Plaintiffs Fischer S.A. Comercio, Industria and
Agricultura and Citrosuco North America, Inc.
Tony West, Assistant Attorney General; Jeanne E. Davidson, Director, Franklin E.
White, Jr., Assistant Director, Commercial Litigation Branch, Civil Division, United
States Department of Justice (Patryk J. Drescher, Michael J. Dierberg); Mykhaylo A.
Gryzlov, Office of the Chief Counsel for Import Administration, U.S. Department of
Commerce, of counsel, for Defendant.
Court No. 08-00277 Page 2
Barnes, Richardson & Colburn (Matthew Thomas McGrath and Stephen William
Brophy) for Defendant Intervenors Florida Citrus Mutual, A. Duda & Sons, Citrus
World, Inc. and Southern Gardens Citrus Processing Corporation.
Dated: November 23, 2010
OPINION & ORDER
CARMAN , JUDGE: In this case, Plaintiffs Fischer S.A. Comercio, Industria and
Agricultura and Citrosuco North America, Inc. (collectively, “Plaintiffs” or “Fischer”)
challenged the final results of the first administrative review of an antidumping duty on
Brazilian orange juice, Certain Orange Juice from Brazil, 73 Fed. Reg. 46,584 (Aug. 11,
2008) (“Final Results”). In an opinion dated April 6, 2010, this Court affirmed the
Department of Commerce’s (“Commerce”) calculation of the gross unit price of
Fischer’s home market sales of non from concentrate orange juice (“NFC”) and
inventory carrying costs, as well as Commerce’s application of the so called “90/60 day
contemporaneity rule” found in 19 C.F.R. § 351.414(e)(2). Fischer S.A. Comercio,
Industria and Agricultura v. United States, 34 CIT ___, 700 F. Supp. 2d 1364, 1381 (2010).
However, the Court held that Commerce abused its discretion in rejecting certain pages
of Fischer’s sales agreement with its United States customer. Id. at 1376. As a result, the
Court ordered the Final Results “remanded to Commerce to (1) examine the additional
agreement pages submitted by Fischer . . . ; (2) determine whether the agreement set the
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price for Fischer’s NFC in the United States in a Brix neutral manner;[1] and (3)
recalculate Fischer’s dumping margin based upon consideration of the additional
agreement pages.” Id. at 1381. After considering Commerce’s remand redetermination,
the comments of Plaintiffs, and the replies of Defendant and Defendant Intervenor, the
Court sustains the remand results and enters judgment for Defendant.
BACKGROUND
I. Remand Results
On May 24, 2010, Commerce filed with the Court its redetermination upon
remand. (Final Results of Redetermination Pursuant to Court Remand, ECF No. 70
(May 24, 2010) (“Remand Results”).) Commerce examined, as directed by the Court,
certain pages of Fischer’s sales agreement with its United States customer that
Commerce had previously rejected, and analyzed their relevance to the price of
Fischer’s United States NFC sales. (Remand Results at 4 9; 13 20.) Commerce noted
1
Brix is a unit of measurement for sugar solutions, expressed in degrees, “so
graduated that its readings at a specified temperature represent percentages by weight
of sugar in the solution.” Webster’s New Collegiate Dictionary 138 (1981). Orange juice
with a higher Brix value is sweeter, and orange juice typically achieves Brix degree
levels in the 60s when concentrated. See generally Tropicana Prods., Inc. v. United
States, 16 C.I.T. 155, 789 F.Supp. 1154 (1992); see also National Juice Products Ass’n v.
United States., 10 C.I.T. 48, 57 n.13, 628 F.Supp. 978, 987 n.13 (1986) (“Degree brix is a
measurement of the percentage of the soluble solids (sugar) in a concentrate, as
measured in air at 20° centigrade and adjusted for the acid correction of the solids.
Thus, manufacturing concentrate with a brix value of 65° contains 65 pounds of fruit
sugar solids in every 100 pounds of solution.”).
Court No. 08-00277 Page 4
that Fischer submitted a total of nine pages from the 63 page agreement, that the
agreement was dated five years before the period of review (“POR”), and that the pages
of the sales agreement did not indicate the effective period of the agreement. (Id. at 4.)
Commerce acknowledged that the agreement contained a clause setting a straight price
per gallon for NFC without regard to Brix level, and another clause providing for
customer credit in case the average Brix of NFC during a crop year equaled less than a
target Brix level of 11.8°. (Id. at 4 5.) Commerce concluded that, due to the lack of
specific reference to a standard Brix level, the connection of the target Brix to crop year
rather than specific sales, and the lack of a maximum Brix, “it is unclear at best that the
agreement does in fact set a ‘standard brix’ for NFC.” (Id. at 5.) Even assuming that the
target Brix was the relevant measure, Commerce found that the record data were
reported on a POR basis rather than a crop year basis, and so the agreement pages on
the record did not definitively establish a standard Brix level for Fischer’s POR United
States NFC sales. (Id.)
Addressing Fischer’s argument that it logically must have met the Brix target
because it made no billing adjustments for low Brix levels, the Remand Results note that
this reasoning only applies if the sales agreement was in effect during the POR. (Id.)
Commerce then notes that the record evidence does not support the sales agreement
having been in effect during the POR, since Fischer’s reported United States sales prices
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vary from the sales agreement price in several instances, and do not even appear to be
set in gallons in some cases. (Id. at 5 6.)
Commerce unsuccessfully attempted to link the sales agreement terms to
Fischer’s United States sales listing, finding that almost a third of the sales were made at
a price per gallon different from that specified in the sales agreement. (Id. at 6 7.) From
this, Commerce concluded that the sales agreement was not reliable to establish that
Fischer’s POR United States sales prices were set in a Brix neutral manner, nor that
conversions of those sales from gallons to pounds solids using actual Brix levels were
less accurate. (Id. at 7, 18 19.) Commerce thus determined that it should continue to
convert Fischer’s United States sales from gallons to pounds solids using the actual Brix
level of those sales as the conversion factor, especially given that Fischer’s home market
sales were appropriately converted to pounds solid using actual Brix level. (Id. at 7 9;
18 20.) Commerce therefore did not recalculate Fischer’s margin. (Id. at 19 20.)
II. Comments and Responses of the Parties to the Remand Results
Fischer argues that Commerce went beyond the remand order when it
questioned the validity and applicability of the sales agreement. (Comments of Fischer
on Final Remand Redetermination, ECF No. 76 (June 14, 2010) (“Fischer Comments”) at
2 6.) Fischer argues that Commerce used the incorrect conversion factor to convert its
United States sales listing into gallons and notes that, nonetheless, 10 of the 14 sales
Court No. 08-00277 Page 6
were still found to have been made at the price per gallon referenced in the sales
agreement excerpts on the record. (Id. at 6.) Fischer also points out that two of the
other sales were only two tenths of a cent higher in price, but does not discuss the prices
of the last two of the 14 sales; Fischer also does not explain why any of the sales were
not at the price set by the sales agreement or why, if Commerce used the incorrect
conversion factor, any of the prices were accurate. (Id.) Fischer requests the Court to
reject the Remand Results and itself recalculate the conversion of Fischer’s United States
sales from gallons to pounds solid using an 11.8 degree Brix factor, asking “[i]f the
Court rejects Commerce’s redetermination and remands again, what additional
arguments will Commerce make and at what expense?” (Id. at 8.)
Defendant counters that Commerce complied with the Court’s remand
instructions. (Def.’s Response to Pl.’s Comments on the Results of Final Remand
Redetermination, ECF No. 86 (July 19, 2010) (“Def.’s Response”) at 2 4.) In general,
Defendant reiterates the position taken by Commerce in the Remand Results. (See
generally Def.’s Response.) Defendant Intervenors also generally support the positions
taken by Commerce in the Remand Results and reiterate the arguments made by
Defendant. (See Def. Ints.’ Response to Pls.’ Comments on the Final Remand
Redetermination, ECF No. 87 (July 20, 2010) (“Def. Ints.’ Response”).)
Court No. 08-00277 Page 7
DISCUSSION
Upon thorough consideration of the Remand Results, the Fischer Comments, and
the Responses of Defendant and Defendant Intervenors, the Court finds that the
Remand Results are supported by substantial evidence and otherwise in accordance
with law and sustains them in full.
Despite Fischer’s arguments to the contrary, the remand order of this Court
never constrained Commerce to arrive at any particular conclusion upon its review of
the previously excluded pages of the sales agreement. In fact, the Court indicated that
one reason for the remand was the ease with which Fischer’s margin could be adjusted
“should Commerce determine upon remand that the sales agreement pages in fact
substantiate that Brix levels above 11.8 degrees did not increase the United States unit
price of Fischer’s NFC.” Fischer, 700 F. Supp. 2d at 1376 77 (emphasis added). The
remand order directed Commerce, upon consideration of the additional agreement
pages, to “determine whether the agreement set the price for Fischer’s NFC in the
United States in a Brix neutral manner.” Id. at 1381. Implicit in these directives is the
Court’s recognition that Commerce is the appropriate entity to construe the meaning of
the sales agreement pages in the first instance.
Commerce complied with that directive by analyzing the sales agreement
excerpts placed on the record by Fischer, including the additional pages that the Court
Court No. 08-00277 Page 8
required Commerce to consider. When Commerce compared the price per gallon of
Fischer’s United States sales against the price per gallon for NFC expressed in the sales
agreement excerpts, it found that approximately a third of the sales were made at prices
different from the per gallon price set in the sales agreement. Fischer has not offered
any explanation for the discrepancy, and the Court is not aware of one. Based on this
record evidence, Commerce reached the reasonable conclusion that the sales agreement
price terms were not a reliable means of accurately measuring the price of Fischer’s POR
United States sales of NFC. In the absence of reliable evidence in the sales agreement as
to the pricing of the United States sales, Commerce reasonably continued to employ the
same methodology for determining United States price that it used in the initial
investigation, the preliminary results of the first administrative review, and its prior
determination: Commerce converted Fischer’s United States sales from gallons to
pounds solids using the actual Brix levels of those sales, and determined the unit price
of the pounds solids. This methodology is completely reasonable given that the sales
agreement does not explain why the prices of actual sales vary from the price per gallon
given there. Commerce’s duty is to weigh the evidence in the record, taking into
account conflicting evidence and coming to a determination as to Fischer’s United States
NFC sales price. See Huvis Corp. v. United States, 570 F.3d 1347, 1351 (Fed. Cir. 2009).
The Court will not upset that determination unless no reasonable decisionmaker could
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reach such a decision after fully considering the record. Since it is clear that Commerce
has given careful and close analysis to the evidence and come to a reasonable
conclusion that takes the entire record into consideration, the Court sustains the
Remand Results.
CONCLUSION
For the reasons given above, upon full consideration of the Remand Results,
comments and responses of all parties, and the administrative record, and all other
papers and proceedings in this case, the Court affirms the Remand Results. It is hereby
ORDERED that Plaintiffs’ motion for judgment upon the agency record is
denied.
Judgment for Defendant will be entered accordingly.
/s/Gregory W. Carman
Gregory W. Carman, Judge
Dated: November 23, 2010
New York, NY