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

471 F. App'x 892
CourtCourt of Appeals for the Federal Circuit
DecidedMarch 23, 2012
Docket19-2088
StatusUnpublished
Cited by2 cases

This text of 471 F. App'x 892 (Fischer S.A. Comercio, Industria & Agricultura v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Federal Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Fischer S.A. Comercio, Industria & Agricultura v. United States, 471 F. App'x 892 (Fed. Cir. 2012).

Opinions

PLAGER, Circuit Judge.

This is an antidumping case involving certain orange juice from Brazil. The United States Court of International Trade affirmed the final results of the Department of Commerce’s (“Commerce”) first administrative review of the anti-dumping duty order levied against appellants, Fischer S.A. Comercio, Industria and Agricultura and Citrosuco North America, Inc. (collectively, “Fischer”). Because Commerce abused its discretion in refusing to accept Fischer’s additional evidence regarding its home market prices, we vacate and remand. On all other issues, we affirm.

Background

This ease concerns the final results of Commerce’s first administrative review of its antidumping duty order based on Fischer’s export to the United States of certain orange juice from Brazil. To calculate Fischer’s antidumping duty, Commerce compared the price Fischer was charging for orange juice in its home market (the “normal value”) with the export price of Fischer’s orange juice in the United States. Because Brazilian companies sell orange juice in different units of measure in their home and United States’ markets, Commerce applied a conversion factor called the “Brix level”1 to determine Fischer’s normal value. Commerce published a final antidumping duty determination on January 13, 2006.

Fischer requested an administrative review of Commerce’s antidumping duty order on April 27, 2007. The administrative review covered the period between August 24, 2005, and February 28, 2007. After Commerce published its preliminary results of the administrative review, Fischer filed a case brief on issues relating to Commerce’s calculations. Fischer’s case brief contained new evidence regarding the Brix levels for its United States and home market sales, which Commerce rejected as untimely under 19 C.F.R. § 351.301. Commerce published its final review results on August 11, 2008.

Fischer appealed Commerce’s final results to the Court of International Trade, challenging, inter alia: (1) Commerce’s refusal to accept Fischer’s additional materials regarding the Brix levels for its United States and home market sales; (2) Commerce’s calculation of Fischer’s average inventory carrying costs; and (3) Commerce’s application of the “90/60 day rule” under 19 C.F.R. § 351.414(e)(2). On April 6, 2010, the court issued a decision affirming Commerce’s refusal to accept Fischer’s additional materials regarding its home market sales, but remanding for Commerce to consider the rejected material regarding Fischer’s United States sales; affirming Commerce’s calculation of Fischer’s inventory carrying costs; and affirming Commerce’s application of the 90/60 day rule.

On remand, Commerce determined that the additional material regarding Fischer’s United States sales did not change the antidumping duty calculation, and in a November 23, 2010, decision, the Court of International Trade affirmed. This appeal followed. We have jurisdiction under 28 U.S.C. § 1295(a)(5).

Discussion

We are asked on appeal to review the issues that the Court of International [894]*894Trade affirmed in its April 6, 2010, decision: (1) Commerce’s refusal to accept Fischer’s additional materials regarding its home market sales; (2) Commerce’s calculation of Fischer’s inventory carrying costs; and (3) Commerce’s application of the 90/60 day rule.

We review decisions of the Court of International Trade without deference, applying the same standard of review applied by the court in its review of the administrative record. Dongbu Steel Co. v. United States, 635 F.3d 1363, 1369 (Fed.Cir. 2011). In doing so, we 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)(l)(B)(i).

I. Home Market Brix Levels

Fischer contends that Commerce abused its discretion when it refused to consider Fischer’s additional materials regarding the actual Brix levels of its home market sales. According to Fischer, “once Commerce chose to use, and the [Court of International Trade] upheld Commerce’s use of, actual Brix values as its conversion variable, Commerce was required to use the correct Brix levels of the juice delivered to the customer.” Corrected Reply of Plaintiffs-Appellants (“Reply Brief’) at 6. Fischer contends it “provided the correct actual Brix levels of its home market ... sales in its timely filed case brief.” Id. at 7. According to Fischer, Commerce’s refusal to accept the corrected home market Brix data distorted the final anti-dumping duty calculation.

The Court of International Trade did not find credible Fischer’s argument that its original home market Brix data contained errors. Specifically, the court noted that Fischer’s original data showed varying Brix levels for its home market sales, which the court determined belied Fischer’s argument that it had misreported that those sales were based on minimum, rather than actual Brix levels. Fischer S.A. Comercio, Industria & Agricultura v. United States, 700 F.Supp.2d 1364, 1378 (Ct. Int’l Trade 2010). Thus, the court concluded that Commerce’s refusal to accept Fischer’s corrected home market Brix data “was supported by substantial evidence and in accordance with law.” Id.

The relevant question, however, is not whether Fischer originally reported different Brix levels for its home market sales, but whether the values Fischer reported were actual Brix levels for those sales. Fischer’s rejected data suggests that at least some of the originally-reported home market Brix levels were not actual Brix levels. Compare Joint Appendix (“JA”) 75-76 (original data reporting certain Brix levels for sale numbers [366] and [432]) with JA 122-123 (sales receipts from Fischer’s rejected materials reporting different Brix levels for those sales). Thus, the court’s conclusion that Fischer could not have originally reported incorrect Brix levels for its home market sales is without adequate support in the record.

On appeal, the Government urges that in light of the varying Brix levels Fischer originally reported, “it was entirely reasonable for Commerce (and the trial court) to conclude that Fischer reported actual brix.” Corrected Brief for Defendant-Appellee United States (“Government Brief’) at 19; see also id. at 28 n. 10 (referring to JA 75-76, 148-149, and 159-162 as evidencing “brix levels that varied from sale to sale.”). But the evidence merely demonstrates that Fischer either reported “[t]he standard ... brix value for Brazil sales” JA 85, or a “minimum” Brix level, see, e.g., JA 149, 11.400 and 460. Thus, Commerce’s conclusion that Fischer had originally reported actual Brix levels for [895]*895its home market sales is not reasonable based on the evidence of record.

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