Fischer S.A. Comercio, Industria & Agricultura v. United States

• Decision Date: 06 December 2012
• Citation: 885 F.Supp.2d 1366
• Parties: FISCHER S.A. COMERCIO, INDUSTRIA AND AGRICULTURA and Citrosuco North America, Inc., Plaintiffs, v. UNITED STATES, Defendant, and Florida Citrus Mutual, and Citrus World, Inc., Defendant–Intervenors.
• Court: U.S. Court of International Trade

885 F.Supp.2d 1366

FISCHER S.A. COMERCIO, INDUSTRIA AND AGRICULTURA and Citrosuco North America, Inc., Plaintiffs,

v. UNITED STATES, Defendant,andFlorida Citrus Mutual, and Citrus World, Inc., Defendant–Intervenors.

United States Court of International Trade.

Slip Op. 12–149.

Court No. 11–00321.

Dec. 6, 2012.

Kalik Lewin, Bethesda, MD, (Robert G. Kalik and Chelsea S. Severson), for Fischer S.A. Comercio, Industria and Agricultura and Citrosuco North America, Inc., Plaintiffs.

Stuart F. Delery, Acting Assistant Attorney General; Jeanne E. Davidson, Director, Patricia M. McCarthy, Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice (Joshua E. Kurland); Office of Chief Counsel for Import Administration, United States Department of Commerce, Mykhaylo Gryzklov, Of Counsel, for the United States, Defendant.

Barnes, Richardson & Colburn, (Matthew T. McGrath and Stephen W. Brophy), Washington DC, for Florida Citrus Mutual and Citrus World, Inc., Defendant–Intervenors.

OPINION and ORDER

TSOUCALAS, Senior Judge:

This matter comes before the court upon the Motion for Judgment on the Agency Record filed by Fischer S.A. Comercio, Industria and Agricultura and Citrosuco North America, Inc. (“Fischer” and “Citrosuco,” respectively, and “Plaintiffs” collectively). Plaintiffs contest certain determinations made by the United States Department of Commerce, International Trade Administration (“Commerce”) in Certain Orange Juice from Brazil: Final Results of Antidumping Duty Administrative Review, Determination Not To Revoke Antidumping Duty Order in Part, and Final No Shipment Determination, 76 Fed. Reg. 50,176 (August 12, 2011) (“ Final Results ”). Commerce and defendant-intervenors, Florida Citrus Mutual and Citrus World, Inc., oppose this motion. For the reasons set forth below, the court finds that Commerce's determinations are supported by substantial evidence and are otherwise in accord with the law.

BACKGROUND

On March 9, 2006, Commerce issued an antidumping order on certain orange juice from Brazil. See Antidumping Duty Order: Certain Orange Juice from Brazil, 71 Fed. Reg. 12,183 (Mar. 9, 2006). At Fischer's request, Commerce initiated an administrative review of the order for the period beginning March 1, 2009 and ending February 28, 2010. See Initiation of Antidumping and Countervailing Duty Administrative Reviews and Request for Revocation in Part, 75 Fed. Reg. 22,107 (Apr. 27, 2010).

During the preliminary review, Commerce requested certain information from Fischer in order to calculate the normal value (“NV”) ¹ and export price (“EP”) ² of the subject merchandise. Commerce requested that Fischer report information on “all sales of the foreign like product during the three months preceding the earliest month of U.S. sales, all months from the earliest to the latest month of U.S. sales, and the two months after the latest month of U.S. sales.” Memo from Analyst/IA to File (Apr. 28, 2010), Public Rec. 14 at § B.II.A.³ This request included information on sales occurring during the period of review (“POR”) as well as sales from the so called “90/60–Day Window Period” (“Window Period”), as defined in 19 C.F.R. § 351.414(f) (2012).⁴ P.R. 14 at § B.II.A. The Window Period stretches up to three months prior to and two months after a month without comparable home market sales. 19 C.F.R. § 351.414(f)(2), (3). Accordingly, Fischer provided information on home market sales that occurred during the POR as well as sales outside the POR during the Window Period. See P.R. 63 Ex. 4.

Additionally, Commerce requested information on Fischer's international freight expenses. Fischer reported that its affiliate, Citrosuco, paid $[[ Confidential Data Deleted ]]/MT for shipments to the U.S. during the POR, comprised of a base freight rate of $[[ Confidential Data Deleted ]]/MT and a bunker fuel surcharge of $[[ Confidential Data Deleted ]]/MT. See P.R. 71 Ex. 3. Fischer also reported that its affiliate [[ Confidential Data Deleted ]] operated most of the vessels that transported subject merchandise to the U.S. See P.R. 104 at 1. Per Commerce's request, Fischer provided a Sea Transport Service Agreement (“STS Agreement”) between Fischer's affiliated shipper and a third party, [[ Confidential Data Deleted ]]. See P.R. 55 Ex. 9. Fischer also provided an invoice from that agreement dated within the POR indicating that [[ Confidential Data Deleted ]] charged [[ Confidential Data Deleted ]] $[[ Confidential Data Deleted ]]/MT, comprised of a base freight rate of $[[ Confidential Data Deleted ]]/MT and a bunker fuel surcharge of $[[ Confidential Data Deleted ]]/MT. Id. Ex. 8.

Commerce released the preliminary results of the administrative review on April 7, 2011. See Certain Orange Juice from Brazil: Preliminary Results of Antidumping Duty Administrative Review and Notice of Intent Not To Revoke Antidumping Duty Order in Part, 76 Fed. Reg. 19,315 (Apr. 7, 2011) (“ Preliminary Results ”). Commerce determined that Fischer's shipping arrangement was “not at arm's length,” and selected the $[[ Confidential Data Deleted ]]/MT rate from the STS Agreement as a surrogate rate from which to calculate Fischer's international freight expenses. Id. at 19,318. Commerce used the resulting value to reduce EP of the subject merchandise pursuant to 19 U.S.C. § 1677a(c)(2)(A). See Preliminary Results, 76 Fed. Reg. at 19,318. Additionally, for months of the POR with no comparable home-market sales, Commerce calculated a constructed value (“CV”) as a substitute for NV pursuant to 19 U.S.C. § 1677b(a)(4). Id. at 19,317. Commerce determined the profit component of the CV calculation using information from the Window Period sales that occurred outside the POR. Id. 19,317; P.R. 103 at 17. Commerce determined Fischer's weighted-average dumping margin (“WADM”) to be 3.96%. Preliminary Results, 76 Fed. Reg. at 19,321.

Following the Preliminary Results, Fischer submitted a case brief raising three issues: (1) the inclusion of the bunker fuel surcharge in the surrogate freight rate when calculating international freight expenses, (2) the use of zeroing to calculate WADM, and (3) the use of sample sales to calculate profit ratio for not-from-concentrate orange juice. See P.R. 116 at iii.

On August 12, 2011 Commerce issued the final results of the review. See Final Results, 76 Fed. Reg. 50,176. Commerce lowered Fischer's WADM to 3.97%, id. at 50,178, but specifically rejected Fischer's arguments concerning zeroing and the bunker fuel surcharge. See Issues and Decision Memorandum for the Antidumping Duty Administrative Review on Certain Orange Juice from Brazil, Inv. No. A–351–840 (Aug. 5, 2011) at 4–8, 23–24 (“ I & D Memo ”).

After Commerce released the Final Results, Fischer filed ministerial error comments with Commerce. See I.A.P.R. 17. Fischer contended that Commerce “committed a ministerial error when it neglected to include specific programming language in its [Analysis of Comparison Market Sales] to exclude home market sales occurring outside the [POR].” Id. at 3. Concluding that Fischer's comments did not actually concern a ministerial error, Commerce did not amend its calculation. See I.A.P.R. 19 at 2.

Plaintiffs raise three issues on appeal: (1) whether Commerce's decision to include the bunker fuel surcharge in the surrogate freight rate was proper, (2) whether Commerce's use of Window Period sales outside the POR to calculate CV profit ratio was proper, and (3) whether Commerce's use of zeroing to calculate WADM was proper. See Pls.' Br. at 1–2.

JURISDICTION and STANDARD OF REVIEW

This Court has jurisdiction over this matter pursuant to 19 U.S.C. § 1516a(a)(2)(B)(iii) and 28 U.S.C. § 1581(c).

This Court will uphold Commerce's determination unless 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 ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ ” Huaiyin Foreign 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, 59 S.Ct. 206, 83 L.Ed. 126 (1938)).

DISCUSSION

I. Bunker Fuel Surcharge

Commerce calculated Fischer's international freight expenses using a surrogate rate from the STS Agreement, see Preliminary Results, 76 Fed. Reg. at 19,318;I & D Memo at 24, which included a bunker fuel surcharge of $[[ Confidential Data Deleted ]]/MT. P.R. 55 Ex. 8. Pursuant to 19 U.S.C. § 1677a(c)(2)(A), Commerce calculated a constructed EP for the subject merchandise using Fischer's international freight expenses as a deduction. See Preliminary Results, 76 Fed. Reg. at 19,318. The bunker fuel surcharge increased the international freight expenses, lowering the constructed EP even further and, therefore, its inclusion made a finding of dumping more likely. See19 U.S.C. § 1677(35)(A); Florida Citrus Mutual v. United States, 550 F.3d 1105, 1110 (Fed.Cir.2008). Plaintiffs argue that Commerce overstated Fischer's international freight expenses, and thus its dumping margin, by including the bunker fuel surcharge in the surrogate rate. See Pls.' Br. at 8. Plaintiffsinsist the surrogate rate should be limited to $[[ Confidential Data Deleted ]]/MT, reflecting the surrogate value for the base freight rate. Id. at 11. Plaintiffs offer two arguments in support of this claim: either (1) Fischer did not incur a bunker fuel surcharge during the POR, or, (2) if Fischer did incur a bunker fuel surcharge, it would have been reimbursed by its U.S. customers. See id. at 8–14.

When calculating EP, Commerce is permitted to reduce the value by “the amount, if any, included in such price, attributable to any additional costs, charges, or expenses, and United States import duties, which are incident to bringing the subject merchandise” to the U.S. 19 U.S.C. § 1677a(c)(2)(A). Commerce adjusts EP to create a “ ‘fair, ...