Slip Op. 10-35
UNITED STATES COURT OF INTERNATIONAL TRADE
FISCHER S.A. COMERCIO, INDUSTRIA
AND AGRICULTURA, and CITROSUCO
NORTH AMERICA, INC,
Plaintiffs, Before: Gregory W. Carman, Judge
Court No. 08-00277
v.
UNITED STATES,
Defendant,
- and -
FLORIDA CITRUS MUTUAL, A. DUDA &
SONS, CITRUS WORLD, INC., and
SOUTHERN GARDENS CITRUS
PROCESSING CORPORATION,
Defendant-Intervenors.
[Plaintiffs’ Motion for Judgment on the Agency Record is GRANTED IN PART. The
Final Results of the first administrative review of the antidumping duty order on
Certain Orange Juice from Brazil are REMANDED IN PART, with instructions that
Commerce consider the additional sales agreement pages submitted by Plaintiffs,
reconvert Plaintiffs’ United States sales from gallons to pounds-solids, and recalculate
the Constructed Export Price of Plaintiffs’ United States sales in light of the new
information. The Final Results are AFFIRMED as to the conversion of Plaintiffs’ home
market sales from kilograms to pounds-solids, the calculation of Plaintiffs’ inventory
carrying cost setoff, and Commerce’s application of the “90/60 day contemporaneity
rule” to examine a home market sale occurring before the period of review. Plaintiffs’
Amended Motion for Oral Argument is DENIED.]
Ct. No. 08-00277 Page 2
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 (Michael J. Dierberg); Mykhaylo A. Gryzlov, Office of the
Chief Counsel for Import Administration, U.S. Department of Commerce, of counsel,
for Defendant.
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.
April 6, 2010
OPINION & ORDER
Carman, Judge: Plaintiff Fischer S.A. Comercio, Industria and Agricultura is a foreign
producer-exporter of orange juice subject to the final results of the first administrative
review of an antidumping duty order on certain Brazilian orange juice. Certain Orange
Juice from Brazil: Finals Results and Partial Rescission of Antidumping Duty
Administrative Review, 73 Fed. Reg. 46,584 (Aug. 11, 2008) (“Final Results”). Plaintiff
Citrosuco North America, Inc. is the affiliated importer of Fischer S.A. Comercio,
Industria and Agricultura. (Compl. ¶ 3.) For simplicity, Plaintiffs are referred to
together as “Fischer.”
Fischer brings this challenge to a portion of the Final Results pursuant to section
516A of the Tariff Act of 1930, as amended, 19 U.S.C. 1516a (2006). The matter is now
Ct. No. 08-00277 Page 3
before the Court on Fischer’s Motion for Judgment on the Agency Record, filed
pursuant to USCIT Rule 56.2.1 The United States (“Defendant” or “government”) as
well as domestic producers and interested parties Florida Citrus Mutual, A. Duda &
Sons, Citrus World, Inc. and Southern Gardens Citrus Processing Corporation
(“Defendant-Intervenors”) opposed the motion,2 and Plaintiff filed a reply.3
Fischer advances five claims challenging various aspects of the Final Results.
(Compl. ¶¶ 26-39.) Fischer’s first claim stems from the manner in which its United
States sales of not-from-concentrate orange juice (“NFC”) were converted from gallons,
the unit in which NFC was sold in the United States, into pounds-solids so that they
1
Doc. No. 32: Public Motion for Judgment on the Agency Record (“Public
Motion”); Doc. No. 39: Confidential (Final) Motion for Judgment on the Agency Record
(“Confidential Motion”).
2
Doc. No. 48: Def.’s Response to Motion for Judgment upon the Agency Record
(“Def.’s Public Opp.”); Doc. No. 51: Confidential Response in Opposition to Motion for
Judgment upon the Agency Record (“Def.’s Confidential Opp.”); Doc. No. 49:
Defendant-Intervenors’ Public Response to Motion for Judgment on the Agency Record
(“Def.-Int.’s Public Opp.”); Doc. No. 53: Defendant-Intervenors’ Final Confidential
Response in Opposition to Motion for Judgment upon the Agency Record (“Def-Int.’s
Confidential Opp.”).
3
Doc. No. 62: Reply to Defendant and Defendant- Intervenors’ Responses in
Opposition to Plaintiffs’ Motion for Judgment upon the Agency Record (“Public
Reply”); Doc. No. 64: Confidential Reply to Defendant and Defendant- Intervenors’
Responses in Opposition to Plaintiffs’ Motion for Judgment upon the Agency Record
(“Confidential Reply”).
Ct. No. 08-00277 Page 4
could be compared with home market sales made in kilograms. (Compl. ¶¶ 28-30.)4 A
pound-solid is “a basic and standardized measurement of the amount of dissolved
citrus sugar found in juice.” U.S. Int’l Trade Comm’n, Certain Orange Juice From
Brazil, Investigation 731-TA-1089 (Final), Pub. 3838 (Mar. 2006) at 17 n.132. Converting
gallons of NFC to pounds-solids involves determining the weight in pounds of the fruit
sugar solids dissolved in each gallon of NFC. Thus, the sweetness of the NFC is an
essential factor in converting gallons of NFC into pounds-solid of NFC; the sweeter a
batch of NFC is, the heavier will be the fruit sugar solids it contains. Fischer contends
that Commerce distorted the price paid for its United States NFC sales by converting to
pounds-solids using the actual sweetness of each individual shipment of NFC, rather
than converting based upon an assumed amount of sweetness that actually determined
the price of Fischer’s NFC sales. According to Fischer, this conversion error had the
effect of lowering the gross unit price5 of Fischer’s United States sales below the price
actually paid by the United States buyer, resulting in an increased dumping margin
contrary to substantial evidence in the record. (Public Motion at 18-23.) Second, Fischer
argues that a similar error in Commerce’s conversion of home market NFC sales from
4
This claim is contained in Count Two of Fischer’s complaint.
5
Gross unit price is calculated by dividing the price paid for the shipment of
NFC by the number of units (i.e. gallons or pounds-solids) contained in the shipment.
See Black’s Law Dictionary 1309 (9th ed. 2009) (defining unit price as “price of a food
product expressed in a well-known measure such as ounces or pounds”).
Ct. No. 08-00277 Page 5
kilograms to pounds-solids caused an improper increase in the gross unit price in the
home market, which was unsupported by substantial evidence. (Id. at 28.) Third,
Fischer claims that Commerce abused its discretion by rejecting documents that Fischer
submitted in response to the preliminary results of the administrative review, despite
the fact that the submission was made almost nine months after the regulatory deadline
had expired for the filing of factual information. Fischer asserts that Commerce was
required to accept these documents, despite their lateness, because they simply clarified
errors in information already timely submitted. (Id. at 24-27.) Fourth, Fischer claims
that, in calculating the statutory Normal Value (“NV”) of Fischer’s home market sales,
Commerce used an inventory carrying cost offset based on industry-wide average costs,
rather than using data submitted by Fischer which showed the actual inventory
carrying costs for the specific home market NFC sales under consideration. According
to Fischer, this error distorted NV and was unsupported by substantial evidence. (Id. at
29-30.) Fifth, Fischer challenges Commerce’s application of 19 C.F.R. 351.414(e)(2) (the
“90/60 day contemporaneity rule”), pursuant to which Commerce considered a home
market sale occurring outside the Period of Review (“POR”) when calculating the
antidumping margin. Fischer claims that, in doing so, Commerce acted contrary to
statute and its own regulations. (Id. at 30-33.) Fischer also moves for oral argument.6
6
Doc. No. 63: Amended Motion for Oral Argument.
Ct. No. 08-00277 Page 6
As discussed in full below, the Court concludes that: (1) Commerce relied on
Fischer’s mistaken reporting of an incorrect conversion factor and, as a result, calculated
an inaccurate gross unit price for Fischer’s United States NFC sales, and (2) Commerce
abused its discretion when it rejected materials Fischer submitted after the preliminary
results of the investigation, which reliably established the mistake and demonstrated
the correct conversion factor. On the other hand, both (3) Commerce’s calculation of the
gross unit price of home market NFC sales and (4) Commerce’s calculation of inventory
carrying cost offsets were supported by substantial evidence, and (5) Commerce acted
in accordance with statute and regulation in applying its 90/60 day contemporaneity
rule. The Court therefore grants in part Fischer’s Motion for Judgment on the Agency
Record, affirms Commerce’s determination of NV for Fischer’s home market sales and
its use of the 90/60 day contemporaneity rule, and remands to Commerce for
recalculation, as detailed below, of the gross unit price of Fischer’s United States NFC
sales using the appropriate conversion factor. Fischer’s Amended Motion for Oral
Argument is denied.
FACTUAL BACKGROUND
The antidumping duty order underlying this case went into effect on March 9,
2006. Antidumping Duty Order: Certain Orange Juice from Brazil, 71 Fed. Reg. 12,183
(Mar. 9, 2006) (“AD Order”). On March 2, 2007, Commerce published a notice of
Ct. No. 08-00277 Page 7
opportunity to request administrative review of the order, with the POR extending
from August 24, 2005 to February 28, 2007. Antidumping or Countervailing Duty
Order, Finding, or Suspended Investigation; Opportunity to Request Administrative
Review, 72 Fed. Reg. 9,505 (Mar. 2, 2007). Upon request, Commerce began a first
administrative review. Initiation of Antidumping and Countervailing Duty
Administrative Reviews, 72 Fed. Reg. 20,986 (Apr. 27, 2007) (“Notice of Initiation”). In
the course of the review, Fischer provided relevant information in several responses
and supplemental responses to questionnaires from Commerce. These responses are
contained in the administrative record as follows: (1) the “Section A Response” (Letter
w/Attachment(s) from law firm of Kalik Lewin to Sec of Commerce Fischer Sec A
Qnaire (May 5, 2007), PR 22, CR 2)7; (2) the “Section B Response” (Letter
w/Attachment(s) from law firm of Kalik Lewin to Sec of Commerce Fischer Qnaire B
Response (June 1, 2007), PR 24, CR 3); (3) the “Section C Response” (Letter w/
Attachment(s) from law firm of Kalik Lewin to Sec of Commerce Fischer Qnaire C
Response (June 1, 2007), PR 25, CR 4); (4) the “First Supplemental AB” (Letter w/
Attachment(s) from law firm of Kalik Lewin to Sec of Commerce Fischer Supp Qnaire
Secs A&B (Oct. 10, 2007), PR 47, CR 15); (5) the “Supplemental C” (Letter w/
Attachment(s) from law firm of Kalik Lewin to Sec of Commerce Fischer Supp Sec C QR
7
“PR” refers to the public version of the official administrative record, and “CR”
refers to the confidential version.
Ct. No. 08-00277 Page 8
(Nov. 5, 2007), PR 58, CR 21); (6) the “Second Supplemental AB” (Letter
w/Attachment(s) from law firm of Kalik Lewin to Sec of Commerce Fischer Supp QR
Secs A&B (Nov. 15, 2007), PR 63, CR 24); (7) the “First Supplemental BC” (Letter
w/Attachment(s) from law firm of Kalik Lewin to Sec of Commerce Fischer Supp QR
Secs B&C (Dec. 17, 2007), PR 69, CR 28); and (8) the “Second Supplemental BC” (Letter
w/Attachment(s) from law firm of Kalik Lewin to Sec of Commerce Fischer Supp Sec
B&C QR (Mar. 13, 2008), PR 80, CR 35).
The preliminary results of the first administrative review were published on
April 7, 2008. Certain Orange Juice from Brazil: Preliminary Results and Partial
Rescission of Antidumping Duty Administrative Review, 73 Fed. Reg. 18,773 (Apr. 7,
2008) (“Preliminary Results”). In the Preliminary Results, Commerce determined the
weighted-average dumping margin for Fischer to be 2.46 percent for the period August
24, 2005 through February 28, 2007. Id. at 18,778.
Following publication of the Preliminary Results, Fischer timely submitted a case
brief on May 8, 2008. (Brief from Law Firm of Kalik Lewin to Sec of Commerce Fischer
Case Brief, PR 103, CR 48 (“Case Brief”).) Commerce sent a letter to Fischer the same
day stating that it had “determined that certain information contained in [the] case brief
represents new and untimely filed factual information.” (Letter from Program Mgr/IA
to law firm of Kalik Lewin rejecting your submission / Fischer, PR 105 (“Rejection
Ct. No. 08-00277 Page 9
Letter”).) Fischer deleted the rejected portions of the case brief and resubmitted it in
accordance with the instructions of Commerce on May 12, 2008. (Letter
w/Attachment(s) from Law Firm of Kalik Lewin to Sec of Commerce Fischer Case Brief,
PR 106, CR 50 (“Resubmitted Case Brief”).) Commerce then published the final results
of the first administrative review on August 11, 2008, finding a dumping margin of 4.81
percent for Fischer. Final Results at 46,585.
Fischer brought this suit pursuant to § 516A(a)(2)(A)(i)(I) of the Tariff Act of
1930, as amended, 19 U.S.C. § 1516a(a)(2)(A)(i)(I), permitting challenges to the final
results of an antidumping administrative review upon the filing of a summons and
complaint “contesting any factual findings or legal conclusions upon which the
determination is based.” 19 U.S.C. § 1516a(a)(2)(A). (See Compl. ¶ 1.)
JURISDICTION & STANDARD OF REVIEW
The Court of International Trade has exclusive jurisdiction over this action
pursuant to 28 U.S.C. § 1581(c).
In reviewing a challenge to the final results of an antidumping administrative
review, the Court shall hold the final results unlawful if they are “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 “‘such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.’” Huaiyin Foreign
Ct. No. 08-00277 Page 10
Trade Corp. (30) v. United States, 322 F.3d 1369, 1374 (Fed. Cir. 2003) (quoting Consol.
Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). “Substantial evidence requires more than
a mere scintilla, but is satisfied by something less than the weight of the evidence.”
Altx, Inc. v. United States, 370 F.3d 1108, 1116 (Fed. Cir. 2004) (internal citations and
quotation marks omitted). The Court “must affirm a Commission determination if it is
reasonable and supported by the record as a whole, even if some evidence detracts from
the Commission’s conclusion.” Nippon Steel Corp. v. United States, 458 F.3d 1345, 1352
(Fed. Cir. 2006) (internal citations and quotation marks omitted). Agency factual
findings are supported by substantial evidence where the agency explains the standards
applied and “demonstrates a rational connection between the facts on the record and
the conclusions drawn.” Alloy Piping Prods., Inc. v. United States, Consol. Court No.
08-00027, Slip. Op. 10-15 at 4 (C.I.T. 2010) (citing Matsushita Elec. Indus. Co. v. United
States, 750 F.2d 927, 933 (Fed. Cir. 1984); see also NMB Sing. Ltd. v. United States, 557
F.3d 1316, 1319 (Fed. Cir. 2009) (“[T]he path of [the agency]’s decision must be
reasonably discernible to a reviewing court.”).
DISCUSSION
I. Alleged Errors in Calculating Dumping Margin
In its Section A Response, Fischer reported that it sold NFC in the United States
“either on a pounds/solids or a per gallon basis,” and in the home market “on a per
Ct. No. 08-00277 Page 11
kilogram basis.” (Section A Response at A-17.) Commerce instructed Fischer to
“describe any conversion factors necessary to put the sales on the same basis,” and
Fischer filed a document in response which illustrated the proper way to convert both
United States and home market sales to common measurements expressed in pounds-
solids. (Id.) The conversion formula document reads as follows:
Standard conversions:
The standard brix value8 for NFC is 11.8
Kilograms divided by .45359237 = Pounds
Pounds multiplied by Brix divided by 100 = Pounds of Solids
...
8
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.”). The Court notes that the term Brix
derives from the last name of the inventor of the scale. Webster’s New Collegiate
Dictionary 138 (1981). Although the term should therefore be capitalized, it often is not;
the capitalization used in source documents will be retained when those documents are
quoted in this opinion.
Ct. No. 08-00277 Page 12
Using the above conversions along with the USDA
Conversion Table9 the conversion of 1 gallon of NFC into
pounds of solids as follows:
Per USDA Conversion Table: 1 Gallon @ 11.8 Brix = 8.717
Pounds
8.717 Pounds multiplied by 11.8 divided by 100 = 1.029 Pounds
of Solids
(Section A Response, Ex. 19.)
The first part of the formula demonstrates how kilograms of NFC are converted
into pounds-solids of NFC. First, the number of kilograms is divided by the factor
.45359237, a constant which converts kilograms into pounds. To convert the resulting
number of pounds of NFC into pounds-solids, the pounds are multiplied by an
appropriate Brix measurement, and the result is divided by 100, yielding a number of
pounds-solids as the final conversion result. The formula set out above illustrates the
conversion by placing the standard Brix measurement of 11.8 degrees into the formula
for the Brix factor. (Brix of 11.8 degrees is considered “standard” because that level is
the average Brix value of unconcentrated natural orange juice in United States
commerce. See 19 C.F.R. § 151.91.10)
9
UNITED STATES DEPT . OF AGRICULTURE , FILE CODE 135-A-50, TECHNICAL
INSPECTION PROCEDURES: SUCROSE CONVERSION TABLE (1970).
10
Section 151.91 is not binding outside the context of determining tariff rates; it
merely serves here to illustrate the basis for referring to 11.8 degree Brix as “standard”
for NFC.
Ct. No. 08-00277 Page 13
The second part of the formula demonstrates how gallons of NFC are converted
into pounds-solids of NFC. The first step is determining, based on the USDA
Conversion Table, how many pounds each gallon of NFC weighs. Doing so requires
choosing the appropriate Brix measurement for the gallons of NFC, since gallons of
NFC with a higher Brix degree contain more dissolved sugars and consequently weigh
more. Once the appropriate Brix variable is chosen, the USDA Conversion Chart
provides the corresponding weigh in pounds per gallon of NFC. This number of
pounds is then multiplied by the same Brix variable chosen in determining the pounds
per gallon of NFC, and the result is divided by 100. The end result of this calculation
provides the number of pounds-solids per gallon of NFC.
A. United States Sales
The USDA measured the average Brix of each shipment of Fischer’s orange juice
upon entry into the United States, establishing a “USDA Brix” or “actual Brix” value
which varied with the minor fluctuations of sweetness naturally occurring from
shipment to shipment of NFC. (Public Motion at 9.) On June 1, 2007, Fischer replied to
Commerce’s request for “the brix level at which the product is sold” by reporting in its
Section C Response (at C-3) the actual Brix levels as measured by the USDA for each
United States sale under review. (See Public Motion at 15.)11 Fischer then calculated the
11
In its Public Motion, Fischer erroneously refers to this information having been
reported in its Section B Response at B-2. (Public Motion at 15.) The Section B
Ct. No. 08-00277 Page 14
gross unit price per pound-solid of its United States sales (also reported to Commerce
on June 1, 2007) by converting the sales into pounds-solids using the conversion
formula given above and filling in the Brix variable with the actual Brix figures for each
shipment as measured by the USDA. (See Public Motion at 3, 15.) Fischer claims that
these calculations were made in error because Fischer’s sales in the United States were
priced assuming a standard Brix level of 11.8, but Fischer accidentally reported actual
Brix—and then based the calculated gross unit price on mistakenly-reported actual Brix.
(Public Motion at 3, 15.)
Without yet discussing the appropriateness of choosing any particular Brix
number as the factor for converting United States sales from a gallons to a pounds-
solids basis, the Court notes that the conversion formula has the mathematical property
of yielding lower United States unit prices as the Brix conversion factor increases. The
following table illustrates this effect by contrasting the gross unit prices yielded by a
hypothetical USDA Brix measurement of 12.5 degrees against those that result using the
standard Brix of 11.8 degrees, when applied to conversion of a hypothetical sale of
100,00 gallons of NFC for a price of $100,000:12
Response, however, contains information regarding “Sales in the Home Market”
(Section B Response at B-1), while the Section C Response contains information
regarding “Sales to the United States” (Section C Response at C-1).
12
Numbers here are rounded off at eight decimal places. The conversion
employs the formula used in the administrative review, given in Fischer’s Section A
Ct. No. 08-00277 Page 15
Conversion formula:
(1) USDA Sucrose Conversion Chart value of pounds per gallon at Brix x Brix ÷ 100 = pounds-solids
per gallon
(2) Pounds-solids per gallon x total sale gallons = total pounds-solids sold
(3) Total sale price ÷ total sale pounds-solids = price per pound-solid
Hypothetical USDA Brix of 12.5°: Standard Brix of 11.8°:
(1) 8.742 pounds per gallon at 12.5° 8.717 pounds per gallon at 11.8°
x 12.5 x 11.8
÷ 100 = ÷ 100 =
1.09275 pounds-solids per gallon 1.028606 pounds-solids per gallon
(2) 1.09275 pounds-solids per gallon 1.028606 pounds-solids per gallon
x 100,000 total sale gallons = x 100,000 total sale gallons =
109,275 total pounds-solids sold 102,860.6 total pounds-solids sold
(3) $100,000 ÷ 109,275 = $100,000 ÷ 102,860.6 =
$0.91512240 per pound-solid $ 0.97218955 per pound-solid
As the table shows, converting a sale from gallons to pounds-solids using a Brix
value higher than standard Brix yields a lower gross unit price than converting the
same sale to pounds-solids using standard Brix.
Fischer illustrated this effect as applied to the actual United States sales
observations considered by Commerce in the administrative review with a chart that
Commerce accepted into the official administrative record. (Resubmitted Case Brief at
Ex. 2, PR 103 (“Comparison Chart”).) The Comparison Chart accurately notes, for
example, that Fischer’s United States sale #317 has a gross unit price when converted
from gallons to pounds-solids using actual degrees Brix that is more than 12¢ lower per
pound-solid than the price that would result if the conversion used the standard Brix of
11.8 degrees. (Id.)
Response, Ex. 19.
Ct. No. 08-00277 Page 16
B. Home Market Sales
Fischer claims that it made a similar reporting mistake as to its home market
sales, providing the minimum permissible Brix level of 10.5 degrees instead of the Brix
level at which home market sales were actually priced. (Public Motion at 28.) Fischer
appears to argue that home market sales were priced at the standard Brix level of 11.8
degrees. (See Public Motion at 28 (referring to the sample conversion chart and stating
that “Plaintiffs informed Commerce in the Section A Response that the Brix levels [sic]
of NFC sold in the home market is also 11.8.”).) But Fischer’s Public Reply can also be
read as suggesting that actual Brix should have been used. (See Public Reply at 5
(challenging Commerce’s reliance upon minimum Brix levels “and not the actual or
standard brix levels of the sale,” but not specifying which Brix level Commerce should
have relied upon), 9 (stating Commerce relied on minimum Brix levels rather than
actual levels); see also Resubmitted Case Brief at 2 (stating that “Fischer sells to its
Brazilian customer on a kilogram basis. The drums are filled either to 180 or 185
kilograms. The customer pays based on kilograms and not based on brix levels.”).)
Fischer submitted a product specification sheet from the home market showing a
minimum Brix of 10.5 degrees, with no maximum or target Brix provided.
(Supplemental AB at Ex. 15.) However, Defendant points out, correctly, that Fischer
reported varying Brix levels for home market NFC sales, which is inconsistent with
Ct. No. 08-00277 Page 17
Fischer’s claim that it reported uniform minimum Brix levels in the home market sales
listing. (Def.’s Public Opp. at 24; see Section B Response, CR 3, Ex. 2.)
Again examining the mathematical properties of the conversion formula, the
Court notes that using a lower Brix number when converting home market sales from
kilograms to pounds-solids results in a higher unit price—the converse of the effect
illustrated in Fischer’s Comparison Chart for United States prices. The following table
illustrates this, contrasting the home market minimum Brix of 10.5 degrees with
standard Brix of 11.8 degrees, as applied to a hypothetical sale of 100,00 kilograms of
NFC for $100,000:13
Conversion formula:
(1) Kilogram s ÷ .45369237 = pounds
(2) Pounds x Brix ÷ 100 = pounds-solids
(3) Total shipm ent price ÷ pounds-solids = price per pound-solid
M inimum Brix of 10.5°: Standard Brix of 11.8°:
(1) 100,000 kilogram s ÷ .45359237 = 100,000 kilogram s ÷ .45359237 =
220462.26218488 pounds 220462.26218488 pounds
(2) 220462.26218488 pounds x 10.5° Brix ÷ 100 = 220462.26218488 pounds x 11.8 Brix ÷ 100 =
23148.53752941 pounds-solids 26014.54693782 pounds-solids
(3) $100,000 ÷ 23148.53752941 = $100,000 ÷ 26014.54693782 =
$4.31992733 per pound-solid $3.84400314 per pound-solid
13
Numbers here are rounded off at eight decimal places. The conversion follows
the formula used in the administrative review, given in Fischer’s Section A Response,
Ex. 19.
Ct. No. 08-00277 Page 18
Because kilogram to pounds-solids conversions made using a lower Brix factor result in
higher home market unit prices, the result would be an increased difference between
home market and United States prices and, consequently, a greater dumping margin.
C. Inventory Carrying Costs
On June 1, 2007, Fischer provided Commerce with a chart each for frozen
concentrated orange juice (“FCOJ”) and NFC, calculating average inventory carrying
cost. (Section B Response, Ex. 12.) Fischer asserted in its Public Motion that Commerce
ignored these charts when it “calculated inventory carrying cost based upon an average
inventory cost for all products” instead of using the “actual carrying charge associated
with NFC sales and a separate charge associated with FCOJ sales.” (Public Motion at
29.) Fischer later recharacterized the alleged error, contending that Commerce rejected
submissions that showed “the actual number of days that each home market NFC sale
was held in inventory, and recalculated inventory carrying costs on an invoice specific
basis.” (Public Reply at 5.)
II. Analysis
A. Rejection of the Extra Pages as Untimely Factual Information
The first question to be addressed is whether Commerce’s decision to enforce its
deadline for the submission of factual information and reject the additional agreement
pages that accompanied Fischer’s Case Brief was an abuse of discretion.
Ct. No. 08-00277 Page 19
1. Fischer’s Position:
Fischer claims that Commerce should have accepted the additional pages of the
agreement because they merely clarified information already in the record. According
to Fischer, the additional excerpts of the agreement were submitted “[s]o that
Commerce could read and understand” the previously submitted agreement extract,
revealing the previously submitted extract to be a “key provision” indicating that “brix
levels higher than 11.8 were not subject to a price adjustment.” (Public Motion at 25.)
Fischer thus characterizes the additional agreement pages as “not new information, but
rather clarification material,” since they were “already cited within the text of the
Agreement attached at the Supplemental C response.” (Id.) Commerce abused its
discretion in rejecting the additional pages, Fischer claims, because Commerce must
allow correction of any error, so long as the error is identified before the final results,
involves “a straightforward mathematical adjustment,” and would not delay the Final
Results. (Id. at 25-26 (citing Timken U.S. Corp. v. United States, 434 F.3d 1345, 1353
(Fed. Cir. 2006), cert. denied, 549 U.S. 1030 (2006) (“Timken”) and NTN Bearing Corp. v.
United States, 74 F.3d 1204, 1208-09 (Fed. Cir. 1995) (“NTN Bearing”).) Fischer also
contends that, in classifying the additional agreement pages as new factual information,
Commerce violated its own policy of accepting correction of unintended errors
pursuant to the criteria set forth in Certain Fresh Cut Flowers from Colombia, 61 Fed.
Ct. No. 08-00277 Page 20
Reg. 42,833, 42,834 (Aug. 19, 1996) (the “Colombia Flowers criteria”). (Id. at 26-27.) In
Fischer’s view, the Case Brief satisfied the Colombia Flowers criteria because it (1)
identified deficiencies in Fischer’s previous submissions, (2) gave reliable evidence of
those errors in the extra agreement pages, (3) corrected the errors at the earliest
opportunity, since Fischer first noticed the errors when it received the Preliminary
Results, and (4) required only a small change to the numbers used in the conversion
formula. (Id. at 27.)
2. The Government’s Position
The government claims that Commerce appropriately rejected the additional
agreement pages as untimely submitted new factual information. Defendant points out
that the additional agreement pages were submitted on May 7, 2008,14 almost nine
months after the August 20, 2007 deadline for the submission of factual material set by
19 C.F.R. § 351.301(b)(2), and that pursuant to 19 C.F.R. § 351.302(d)(1) Commerce
cannot consider material rejected as untimely. (Def.’s Public Opp. at 5, 17-19.)
According to Defendant, while Commerce may extend deadlines for good cause
pursuant to 19 C.F.R. § 351.302(b), Fischer neither requested nor demonstrated grounds
for an extension. (Id. at 19.) The government cites several court decisions upholding
Commerce’s authority to establish and enforce its own rules of procedure and
14
Although the Case Brief bears the date “May 8, 2008” on its cover sheet,
Commerce stamped it as received on May 7, 2008. (See PR 103, CR 48.)
Ct. No. 08-00277 Page 21
deadlines: Vermont Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435
U.S. 519 (1978); Uniroyal Marine Exports Ltd. v. United States, 33 CIT ___, 626 F. Supp.
2d 1312 (2009) (“Uniroyal”); Yantai Timken Co., Ltd. v. United States, 521 F. Supp. 2d
1356, 1371 (C.I.T. 2007) (“Yantai”), aff’d 300 Fed. App’x 934 (Fed. Cir. 2008); Tianjin
Machinery Import & Export Corp. v. United States, 28 CIT 1635, 353 F. Supp. 2d 1294,
1303-04 (2004).
While maintaining that Fischer’s additional pages were properly rejected as
untimely, Defendant also appears to argue that Fischer’s additional pages were not
rejected for being untimely. Specifically, the government argues that NTN Bearing is
inapposite here since NTN Bearing stands for the proposition that “it was an abuse of
discretion for Commerce to refuse to correct factual errors in information submitted by
the producer based upon timeliness when the errors were identified prior to the final
determination,” but Commerce rejected Fischer’s argument on its merits, not for
untimeliness. (See Def.’s Public Opp. at 20-21 (stating “[h]ere, in contrast [to Timken
and NTN Bearing], Fischer asked Commerce to apply a different methodology” and
“Commerce rejected Fischer’s request because Commerce found that the methodology
used in conversion was appropriate,” so there was “no error to correct.”).) Defendant
also argues that Timken held only that Commerce cannot “refuse to correct factual
errors in information submitted by the producer, identified prior to the final results,
Ct. No. 08-00277 Page 22
solely because the errors were not ‘clerical’ in nature,” and, accordingly, that Timken
does not apply here because Commerce did not reject Fischer’s additional pages on the
grounds that they were not “clerical” in nature. (Id.)
Finally, Defendant states that Commerce “did not use, and had no reason for
using, the Colombia Flowers factors,” which is “a test that Commerce used to use when
evaluating whether to correct errors in information submitted by a party,” but was
invalidated by Timken at least to the extent that it limited the correction of errors to
those that were clerical in nature. (Id. at 21-22.)
3. Defendant-Intervenors’ Position
Defendant-Intervenors contend that Commerce properly rejected the additional
agreement pages submitted by Fischer because “this information cannot be fairly
characterized as merely clarification material,” but rather represents “an abrupt tactical
shift, once [Fischer] found that it had miscalculated its dumping margin.” (Def.-Int.’s
Public Opp. at 15-16.) Defendant-Intervenors, like Defendant, argue that Timken,
Yantai, and NTN Bearing are inapplicable because they only allow for the late
correction of errors, but conversion of Fischer’s sales into pounds-solid using actual Brix
measurements did not lead to an erroneous result. (Id. at 16-17.) According to
Defendant-Intervenors, Fischer did not satisfy the Colombia Flowers test because the
errors it alleges (1) were not clerical, (2) were unsupported by reliable evidence, (3) were
Ct. No. 08-00277 Page 23
not corrected at the earliest opportunity, and (4) required substantial changes to the
Preliminary Results. (Id. at 17-18.)
B. Rejecting the Additional Agreement Pages Was an Abuse of Discretion
Timken and NTN Bearing both stress that, at the preliminary results stage,
Commerce abuses its discretion where it refuses to let a respondent establish an
accurate dumping margin by correcting mistakes in its response. Finality concerns only
begin to counterbalance accuracy concerns when the administrative review reaches the
final results stage. Here, Commerce refused to consider pages from Fischer’s sales
agreement establishing that the dumping margin in the preliminary results was
inaccurate. The Court finds that, in doing so, Commerce abused its discretion.
In Timken, upon reviewing the preliminary results of the administrative review
of an antidumping duty order, the respondent (like Fischer) allegedly realized that it
had “inadvertently and inaccurately” misreported sales data important in calculating an
accurate dumping margin. 434 F.3d at 1347-48. Like Fischer, Timken submitted
documentary exhibits with its case brief and requested that Commerce correct the
alleged error on the basis of those documents. Id. at 1348. Commerce refused in
Timken to consider the new information on the basis, inter alia, that the errors were not
“clerical” and therefore did not satisfy the Colombia Flowers criteria, and published the
Final Results without corrections. Id. On appeal, the Court of International Trade (CIT)
Ct. No. 08-00277 Page 24
rejected Commerce’s application of the Colombia Flowers test based on its concern that
rejecting Timken’s new information “would render a grossly erroneous dumping
margin,” and remanded for Commerce to recalculate the dumping margin upon
consideration of Timken’s new information. Id. (citing Timken U.S. Corp. v. United
States, 28 C.I.T. 329, 318 F. Supp. 2d 1271, 1277-79 (2004)). Commerce considered
Timken’s new evidence on remand and found it insufficiently reliable to use; the CIT
subsequently affirmed that determination. Id. at 1349. When Timken appealed to the
CAFC, Commerce argued, as an alternative ground for affirmance, that the CIT erred in
initially remanding for consideration of Timken’s new evidence since the new evidence
was not limited to correcting clerical errors. Id. at 1351. The CAFC disagreed with this
argument “[o]n the merits.” Id. The CAFC noted that the government did not “identify
any statute or regulation” supporting its contention that only clerical errors could be
corrected once the preliminary results issued. Id. at 1351-52. The CAFC noted that it
had held, in NTN Bearings, that a refusal to consider corrective information offered in
response to the preliminary results on the basis of untimeliness constituted an abuse of
discretion where correction of the errors involved only a “straightforward mathematical
adjustment” that “would neither have required beginning anew nor have delayed
making the final determination.” Id. at 1353 (quoting 74 F.3d at 1208). In affirming the
Ct. No. 08-00277 Page 25
CIT’s remand order that Commerce consider the new information submitted with
Timken’s case brief, the CAFC explained:
[T]he government seemingly aims to save itself from having
to evaluate corrective information . . . whether correction is
sought at the preliminary results stage or the final results
stage. This court, however, has never discouraged the
correction of errors at the preliminary result [sic] stage; we
have only balanced the desire for accuracy in antidumping
duty determinations with the need for finality at the final
results stage. . . . [B]ecause Timken sought correction of its
errors after Commerce issued the preliminary results, but
before it issued the final results, we conclude that the Court
of International Trade . . . did not err in remanding the case
to Commerce for an analysis of Timken’s new evidence.
Id. at 1353-54.
NTN Bearing also bears a strong resemblance to the current case. Like Fischer,
NTN Bearing responded to the preliminary results of an antidumping duty
administrative review with a case brief, accompanied by supporting documentary
evidence showing that it had made reporting errors—NTN Bearing had (1) accidentally
misidentified the goods in certain United States sales and (2) mistakenly listed a number
of sales to Canadian customers as United States sales. NTN Bearing, 74 F.3d 1204, 1205
(Fed. Cir. 1995). Commerce rejected NTN Bearing’s evidence as “untimely data” under
the then-applicable regulation limiting the submission of factual information.15 Id. at
15
19 C.F.R. § 353.31(a) (1995) (imposing a deadline for factual information of “the
earlier of the date of publication of notice of preliminary results of review or 180 days
after the date of publication of notice of initiation of the review.”)
Ct. No. 08-00277 Page 26
1206-07. The CAFC stated that a regulation “not required by statute,” such as the
timeliness regulation, “must be waived where failure to do so would amount to an
abuse of discretion,” and held that Commerce abused its discretion when it “refused to
consider correction of these errors because of the ‘untimely’ submission of the corrective
information,” emphasizing that “[i]t is the duty of [Commerce] to determine dumping
margins as accurately as possible” and that “the antidumping laws are remedial, not
punitive.” Id. at 1207-08 (citations and quotations omitted); see also World Finer Foods,
Inc. v. United States, 24 C.I.T. 541, 2000 WL 897752 (2000) (requiring Commerce to
accept corrections to mistaken reporting that plaintiff only became aware of upon
review of the preliminary results). The CAFC noted that failure to perform the
“straightforward mathematical adjustment” called for by the new information “resulted
in the imposition of many millions of dollars in duties not justified under the statute.”
NTN Bearing, 74 F.3d at 1208.
On the authority of Timken and NTN Bearing, the Court holds that Commerce
abused its discretion in rejecting Fischer’s additional agreement pages as untimely.
Doing so was an abuse of discretion because (1) no finality concerns demanded
exclusion of the additional data at the preliminary results stage; (2) failure to consider
the additional pages to correct information already provided was a violation of
Commerce’s duty to determine Fischer’s dumping margin as accurately as possible;
Ct. No. 08-00277 Page 27
(3) consideration of the additional data is necessary to ensure that the remedial, non-
punitive nature of the antidumping laws is not violated by imposition of inaccurately
high antidumping duties on Fischer despite the evidence that was rejected; and (4) the
recalculation of Fischer’s dumping margin could be accomplished by simply replacing
the actual Brix levels reported by Fischer in its database with the standard Brix level of
11.8 degrees, 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.
Furthermore, Uniroyal, Yantai, and Tianjin are all consistent with this result. In
those three cases, the plaintiffs either failed to respond to a questionnaire from
Commerce (Uniroyal) or failed verification (Yantai and Tianjin), then later asked the
court to overturn Commerce’s rejection of untimely fact submissions and Commerce’s
consequent application of adverse facts available. Uniroyal, 626 F. Supp. 2d at 1313-14,
Yantai, 521 F. Supp. 2d at 1360-62, Tianjin, 353 F. Supp. 2d at 1303-04. In upholding
Commerce’s enforcement of its regulatory deadline for factual information, the courts
noted that the information the plaintiffs offered did not correct a mistaken previous
submission, but instead attempted to fill the gap caused by failure to provide a
questionnaire response or evidence requested during verification. Uniroyal, 626 F.
Supp. 2d at 1314, 1316 (highlighting respondent’s inability to demonstrate that it had
Ct. No. 08-00277 Page 28
submitted the questionnaire response at issue to Commerce), Yantai, 521 F. Supp. 2d at
1370 (noting that Timken did not apply because it allows “submission of information
after a preliminary determination to correct errors of information already on the
record,” not “new factual information after Commerce issued the preliminary results”),
Tianjin, 353 F. Supp. 2d at 1304 (stating that Commerce “is under no obligation to
request or accept substantial new factual information from a respondent after
discovering that a response cannot be corroborated during verification.”).
Finally, the Court finds the Colombia Flowers test inapplicable to this case.
Timken squarely rejected the limitations of the Colombia Flowers criteria to the extent
that those criteria restrict correction of errors at the preliminary results stage, and the
United States does not argue that Colombia Flowers should apply here.
The Court further notes that Defendant asserts that Commerce rejected Fischer’s
additional information not only on a timeliness basis but also (or perhaps only) on the
merits. The argument is unpersuasive, however, because Commerce rejected the
additional agreement pages that Fischer submitted, and did not consider that evidence
in its subsequent determination that the conversion of United States sales to pounds-
solids using actual Brix was proper. When it rejected the pages from the agreement that
indicated the Brix level at which Fischer priced its NFC sales in the United States,
Commerce lost the ability to evaluate whether Fischer’s claim of error in the conversion
Ct. No. 08-00277 Page 29
methodology had merit. Simply put, Commerce has not yet considered whether
Fischer’s dumping margin is inaccurate due to having been calculated on the mistaken
premise that Fischer priced its NFC based on its sweetness, rather than volume
regardless of sweetness. The Court therefore remands to Commerce to (1) examine the
additional agreement pages submitted by Fischer with its Case Brief dated May 8, 2008;
(2) determine whether the agreement set the price for Fischer’s NFC in the United States
in a Brix-neutral manner; and (3) recalculate Fischer’s dumping margin based upon
consideration of the additional agreement pages.
C. Conversion of Fischer’s Home Market Sales
In contrast to Fischer’s additional agreement pages suggesting that United States
gross unit prices might have been distorted by the use of actual Brix in the conversion to
pounds-solids, Fischer’s contentions regarding home market pricing find no support. In
the first place, as noted above, Fischer’s argument as to how Commerce should have
converted home market sales from kilograms into pounds-solids is unclear and possibly
inconsistent. Fischer does not point to reliable documentation such as sale agreement
excerpts to establish the alleged home market conversion error. Instead, Fischer merely
offers the bare assertion that it misreported minimum Brix levels for home market sales.
That assertion might find support in the product specification sheets showing minimum
Brix for home market sales was set at 10.5 degrees—if the home market sales listing did
Ct. No. 08-00277 Page 30
not belie Fischer’s contention, showing that Fischer reported home market sales priced
at varying Brix levels, rather than consistently priced at the minimum Brix level. (See
CR 3, Ex. 2.)
Given that Fischer appears not to have reported the incorrect sales Brix level as it
alleges, the Court finds no reason to question Commerce’s reliance on the information
Fischer supplied during the investigation. The Court therefore affirms Commerce’s
conversion of the home market sales from kilograms into pounds-solids using the Brix
levels reported by Fischer, and holds that Commerce’s determination in this respect was
supported by substantial evidence and in accordance with law.
D. Inventory Carrying Costs
1. Positions of the Parties
Although Fischer contends that Commerce calculated home market inventory
carrying costs incorrectly, Fischer’s position regarding this alleged error has shifted
over time. In its Resubmitted Case Brief, Fischer argued that, “as the Department has
established three CONNUMs for the products,16 the average inventory carrying cost
should similarly be based on the average carrying charge for the specific product,” and
16
CONNUM refers to a unique number which is assigned for purposes of the
administrative review to each distinct commercial product analyzed. In this
administrative review, three CONNUMs were established to distinguish Fischer’s three
products: FCOJ, NFC, and a product known as “Dairy Pak.”
Ct. No. 08-00277 Page 31
that “[t]he Department should adjust this calculation to reflect the average time only
NFC was held in inventory.” (Resubmitted Case Brief at 6.)
In its motion papers, Fischer stated that it determined after the preliminary
results that “the calculation of inventory carrying costs . . . were not consistent with
Commerce’s requirement that cost be calculated by Connum” because “Commerce
calculated inventory carrying cost based upon an average inventory cost for all
products,” instead of “the actual carrying charge associated with NFC sales and a
separate charge associated with FCOJ sales.” (Public Motion at 29.) In its motion,
Fischer contended that it “presented customer invoices tied to home market sales
already on the record to clarify the production dates and amount of time that the
product was held in inventory.” (Id.)
Finally, in its reply in support of its motion, Fischer argued that Commerce, in
the second administrative review, abandoned the inventory carrying cost methodology
used in the first administrative review, contested in this lawsuit, and therefore the Court
should not defer to Commerce. (Public Reply at 12.) Fischer stated that it was not
alleging “that Commerce failed to calculate separate average inventory carrying costs
for NFC and FCOJ.” (Id.) Instead, Fischer claimed that it took the position that
“Commerce’s calculation of an average NFC inventory carrying period for the Connum
resulted in an inaccurate calculation of home market NFC inventory carrying charges”
Ct. No. 08-00277 Page 32
since it calculated “a general average movement of all NFC produced that was held in
inventory during the period of review.” (Id. at 12-13.) According to Fischer’s Public
Reply, Commerce thus ignored “the true length of time that the product was held in
inventory” as demonstrated by date-of-production data for the home market NFC sales
under consideration, which allegedly showed “the specific dates of production and
days held in inventory to enable Commerce to properly calculate NFC inventory
carrying cost.” (Id. at 12-13.)
The government asserts that Commerce did, in fact, calculate inventory carrying
costs “by using the product-specific inventory carrying costs for FCOJ and NFC that
Fischer reported” in the Section B response. (Def.’s Public Opp. at 24.) Defendant
therefore states that, “contrary to Fischer’s allegations, its reported inventory carrying
costs are product specific,” since Fischer reported separate inventory carrying costs for
NFC and FCOJ. (Id. at 25.) Commerce also asserts that it acted in accordance with its
timeliness regulations in rejecting new factual information regarding “home market
inventory carrying costs” submitted by Fischer with the Case Brief. (Id.) Defendant-
Intervenors take a position consistent with that of the government. (Def.-Int.’s Public
Opp. at 21-22.)
Ct. No. 08-00277 Page 33
2. Analysis
The Court finds that the record establishes that Commerce did, in fact, calculate
inventory carrying costs on the basis requested by Fischer in its Case Brief and Public
Motion. Fischer emphasized in those briefs that Commerce should ensure that the
calculation of inventory carrying cost was (1) product-specific and (2) averaged.
Commerce, in its calculations, relied on documents provided by Fischer that
demonstrate inventory carrying costs (1) by specific product (NFC vs. FCOJ), and
(2) average those costs within each specific product category. (See Section B Response
at Ex. 12 (PR 24, CR 3) (containing two spreadsheet reports, averaging carrying costs
separately for NFC and FCOJ); see also FR Notice (unpublished) from Analyst/IA to file
final results/ partial rescission/ issues and decision memo (Aug. 5, 2008) at 40 (PR 117)
(Commerce “relied on the calculations Fischer provided in its June 1 [2007] submission
[i.e., Section B Response]; these calculations were specific to FCOJM17 and NFC because
they were based on both the costs for these individual products as well as their specific
inventory carrying periods.”).) Thus, Fischer’s Public Motion contending that
Commerce should have calculated inventory carrying costs in the manner that
Commerce did, in fact, calculate inventory carrying costs is denied as moot.
17
Frozen concentrated orange juice for manufacture, also known as FCOJ.
Ct. No. 08-00277 Page 34
The ground for error argued in Fischer’s Public Reply is that Commerce should
have calculated the inventory carrying cost of the specific NFC that was the subject of
each home market NFC sale under consideration, based upon the actual dates that those
drums of NFC were held in inventory between production and shipment. The Court
finds that Fischer’s submissions to Commerce did not, fairly read, articulate this
position. Therefore, this argument was not preserved at the administrative level; to the
extent that Fischer now raises the argument in its Public Reply to support its motion, it
is denied as unpreserved. See Woodford v. Ngo, 548 U.S. 81, 90 (2006) (citations
omitted), see also Paul Müller Industrie Gmbh & Co. v. United States, 31 C.I.T. 1084, 502
F. Supp. 2d 1271, 1275 (2007) (“The doctrine of exhaustion provides that no one is
entitled to judicial relief . . . until the prescribed administrative remedy has been
exhausted.”) (citations and quotations omitted). Commerce’s calculation of inventory
carrying cost for NFC was supported by substantial evidence in the record and in
accordance with law, and the Court therefore affirms that part of the Final Results.
E. Application of the 90/60 Day Contemporaneity Rule
1. Positions of the Parties
Fischer argues that Commerce applied its 90/60 day contemporaneity rule, 19
C.F.R. § 351.414(e)(2), to compare three United States sales with a home market sale that
occurred prior to the preliminary determination in the original antidumping
Ct. No. 08-00277 Page 35
investigation and the beginning of the POR. Fischer claims that Commerce used the
90/60 day contemporaneity rule in a fundamentally unfair manner when it applied the
rule to sales Fischer made prior to the POR because Fischer did not at that time have
notice that its sales might be subject to such a comparison. In what Fisher asserts to be
an issue of first impression, Fischer also argues that Commerce’s use of the 90/60 day
contemporaneity rule in this manner violated 19 C.F.R. § 351.213(e)(1)(ii), which Fischer
reads as mandating that first administrative reviews only cover entries, exports, or sales
occurring on or after the date of suspension of liquidation. According to Fischer, the
conflict arises when the 90/60 day contemporaneity rule, as here, permits selection of a
home market sale occurring outside the POR for comparison purposes. (Public Motion
at 30-33.)
Defendant and Defendant-Intervenors counter that Fischer misreads 19 C.F.R.
§ 351.213(e)(1)(ii), which limits the period of United States sales to be considered, but is
silent as to the dates of home market sales that Commerce may examine. Defendant
also argues that Fischer’s fair notice contention “appears to be arguing that Commerce
has a duty to give foreign producers an adequate opportunity to game the system to
avoid paying antidumping duties” and that, in any event, the promulgation of the 90/60
day contemporaneity rule itself gave Fischer notice that such sales might be considered
Ct. No. 08-00277 Page 36
by Commerce in a first administrative review. (Def.’s Public Opp. at 25-29; Def.-Int.’s
Public Opp. at 25-34.)
2. Analysis
Defendant and Defendant-Intervenors are correct that the POR regulation only
limits the period of United States sales that Commerce may consider in an
administrative review. 19 C.F.R. § 351.213(e)(1) (referring to “entries, exports, or sales
of the subject merchandise”); 19 U.S.C. § 1677(25) (indicating that “subject merchandise”
refers to various types of merchandise sold within the United States). It is unsurprising
that only sales made within the United States can be “subject” to antidumping duties
imposed by the United States. Therefore, the Court holds that the 90/60 day
contemporaneity rule, which applies only to home market sales by foreign producers,
does not conflict with the POR regulation.
Furthermore, the Court is unpersuaded by Fischer’s fundamental-fairness and
lack-of-notice arguments. Commerce is correct that the mere fact of publication of the
90/60 day contemporaneity rule gives Fischer sufficient prior notice. As to fundamental
fairness, this Court declines to find that Fischer is entitled to know in advance whether a
particular sale it makes will be reviewed to determine whether Fischer is making sales
at less than fair value. Commerce promulgated the 90/60 day contemporaneity rule
under its broad authority to give effect to the antidumping statutes; the Court defers to
Ct. No. 08-00277 Page 37
that rule and will not upset it. The Court therefore finds that Commerce acted within its
lawful authority and in accordance with law in its application of the 90/60 day
contemporaneity rule, and affirms the Final Results to the extent that Commerce relied
on application of the 90/60 day contemporaneity rule to a home market sale occurring
prior to the POR.
F. Oral Argument
The Court having determined that oral argument is unnecessary here, Fischer’s
Motion for Oral Argument is denied.
CONCLUSION
For the reasons given above, this Court affirms in part and remands in part the
Final Results. It is hereby
ORDERED that Fischer’s Motion for Summary Judgment on the Agency Record
is partially granted and partially denied; and it is further
ORDERED that the Final Results of the first administrative review of the
antidumping duty order on Certain Orange Juice from Brazil are remanded to
Commerce to (1) examine the additional agreement pages submitted by Fischer with its
Case Brief dated May 8, 2008; (2) determine whether the agreement set the price for
Fischer’s NFC in the United States in a Brix-neutral manner; and (3) recalculate Fischer’s
Ct. No. 08-00277 Page 38
dumping margin based upon consideration of the additional agreement pages; and it is
further
ORDERED that the Final Results of the first administrative review are affirmed
in all other respects; and it is further
ORDERED that Commerce shall file with this Court the remand results no later
than May 10, 2010; that Plaintiffs may file comments with this Court indicating whether
they are satisfied or dissatisfied with the remand results no later than May 31, 2010; and
that Defendant and Defendants-Intervenor may file responses to Plaintiffs’ comments
no later than June 21, 2010.
SO ORDERED.
/s/ Gregory W. Carman
Gregory W. Carman
Dated: April 6, 2010
New York, NY