Fischer S.A. Comercio, Industria and Agricultura v. United States
34 I.T.R.D. (BNA) 2288
Ct. Intl. Trade2012Background
- Antidumping order on certain orange juice from Brazil issued March 9, 2006.
- Administrative review conducted for period March 1, 2009–February 28, 2010.
- Commerce used a surrogate freight rate including a bunker fuel surcharge from a related STS Agreement.
- Commerce preliminarily found the bunker fuel surcharge in the surrogate rate; later Final Results retained that approach.
- Fischer challenged (a) bunkern surcharge inclusion, (b) use of Window Period sales for CV profit, (c) zeroing in WADM; court denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether bunker fuel surcharge may be included in surrogate freight rate | Fischer argues surcharge overstated, should be base rate only | Commerce properly included surcharge as part of freight costs | Included surcharge upheld |
| Whether Window Period sales outside POR may be used to calculate CV profit | Fischer argues outside-POR Window Period sales violate 19 C.F.R. § 351.414(f) | Commerce allowed Window Period sales in CV profit ratio | Use of Window Period sales outside POR sustained; exhaustion issue discussed |
| Whether Commerce's use of zeroing to calculate WADM during reviews is permissible | Zeroing too be improper; inconsistent with investigations | Zeroing justified by differences between reviews and investigations | Zeroing during reviews affirmed; explanation adequate under Dongbu/JTEKT framework |
| Whether Fischer exhausted administrative remedies on Window Period issue | Fischer exhausted via ministerial error comments | Issue wasn't properly raised as ministerial error; precluded | Court precludes argument due to exhaustion failure |
| Whether ministerial error process was misused to raise substantive issues | Window Period issue cloaked as ministerial error | Ministerial error procedure not applicable to substantive legal questions | Ministerial error route rejected; substantive issue not reviewable here |
Key Cases Cited
- Florida Citrus Mutual v. United States, 550 F.3d 1105 (Fed. Cir. 2008) (offsets and surrogates in EP/NV context; support for adjustments)
- JTEKT Corp. v. United States, 642 F.3d 1378 (Fed. Cir. 2011) (requires consistent explanation for zeroing across contexts)
- Dongbu Steel Co. v. United States, 635 F.3d 1363 (Fed. Cir. 2011) (invalidates inconsistent zeroing without adequate justification)
- Union Steel v. United States, 823 F. Supp. 2d 1346 (CIT 2012) (upholds differing WADM treatment in reviews vs investigations)
- Corus Staal BV v. United States, 30 CIT 1040 (CIT 2006) (exhaustion and ministerial error standards in review)