       NOTE: This disposition is nonprecedential.

  United States Court of Appeals
      for the Federal Circuit
              __________________________

   FISCHER S.A. COMERCIO, INDUSTRIA AND
             AGRICULTURA AND
      CITROSUCO NORTH AMERICA, INC.,
              Plaintiffs-Appellants,

                           v.
                  UNITED STATES,
                  Defendant-Appellee,

                         AND

FLORIDA CITRUS MUTUAL AND CITRUS WORLD
                   INC.,
            Defendants-Appellees,

                         AND

   A. DUDA & SONS AND SOUTHERN GARDENS
      CITRUS PROCESSING CORPORATION,
              Defendants-Appellees.
              __________________________

                      2011-1152
              __________________________

   Appeal from the United States Court of International
Trade in case no. 08-CV-0277, Judge Gregory W. Carman.
               __________________________
FISCHER SA COMERCIO   v. US                               2


                Decided: March 23, 2012
               __________________________

    ROBERT G. KALIK, Kalik Lewin, of Bethesda, Mary-
land, argued for plaintiffs-appellants. With him on the
brief was CHELSEA S. SEVERSON.

    JOSHUA E. KURLAND, Trial Attorney, Commercial Liti-
gation Branch, Civil Division, United States Department
of Justice, of Washington, DC, argued for defendant-
appellee United States. On the were TONY WEST, Assis-
tant Attorney General, JEANNE E. DAVIDSON, Director,
FRANKLIN E. WHITE, JR., Assistant Director, and PATRYK
J. DRESCHER, Trial Attorney.

    MATTHEW T. MCGRATH, Barnes, Richardson &
Colburn, of Washington, DC, argued for defendants-
appellees Florida Citrus Mutual and Citrus World, Inc., et
al. With him on the brief was STEPHEN W. BROPHY. Of
counsel were MATTHEW J. MCCONKEY, and JEFFERY C.
LOWE, Mayer Brown, LLP, of Washington, DC.
               __________________________

 Before NEWMAN, PLAGER, and BRYSON, Circuit Judges.
   Opinion for the court filed by Circuit Judge PLAGER.
             Circuit Judge BRYSON dissents.
PLAGER, Circuit Judge.

    This is an antidumping case involving certain orange
juice from Brazil. The United States Court of Interna-
tional Trade affirmed the final results of the Department
of Commerce’s (“Commerce”) first administrative review
of the antidumping duty order levied against appellants,
Fischer S.A. Comercio, Industria and Agricultura and
Citrosuco North America, Inc. (collectively, “Fischer”).
3                                 FISCHER SA COMERCIO   v. US


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 case 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 anti-
dumping 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 conver-
sion 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 Com-
merce’s antidumping duty order on April 27, 2007. The
administrative review covered the period between August
24, 2005, and February 28, 2007. After Commerce pub-
lished its preliminary results of the administrative re-
view, 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 pub-
lished its final review results on August 11, 2008.



    1    The Brix level is a measure of the amount of solu-
ble solids, or sugar, in a solution. 7 C.F.R. § 52.1553.
FISCHER SA COMERCIO   v. US                              4


    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) Com-
merce’s application of the “90/60 day rule” under 19
C.F.R. § 351.41(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 mate-
rial 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 addi-
tional 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 jurisdic-
tion under 28 U.S.C. § 1295(a)(5).

                         DISCUSSION

    We are asked on appeal to review the issues that the
Court of International Trade 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 adminis-
5                                 FISCHER SA COMERCIO   v. US


trative record. Dongbu Steel Co. v. United States, 635
F.3d 1363, 1369 (Fed. Cir. 2010). 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. § 1512a(b)(1)(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, Com-
merce 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 con-
tends 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. Commercio, 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.
FISCHER SA COMERCIO   v. US                                 6


    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 stan-
dard . . . brix value for Brazil sales” JA 85, or a “mini-
mum” Brix level, see, e.g., JA 149, ll. 400 and 460. Thus,
Commerce’s conclusion that Fischer had originally re-
ported actual Brix levels for its home market sales is not
reasonable based on the evidence of record.

     The Government also contends that Fischer is pre-
cluded from arguing on appeal that its originally-filed
data did not contain actual Brix levels because Fischer
failed to raise that argument at the administrative level.
Government Brief at 26 and 28. As we have explained,
however, the antidumping laws are remedial, not puni-
tive, and the affected domestic industry is not entitled to
7                                FISCHER SA COMERCIO   v. US


a remedy that exceeds the difference between the foreign
market value and the domestic price. NTN Bearing Corp.
v. United States, 74 F.3d 1204, 1208 (Fed. Cir. 1995).
Accordingly, Commerce is obliged to correct any errors in
its calculations during the preliminary results stage to
avoid an imposition of unjustified duties. Timkin U.S.
Corp. v. United States, 434 F.3d 1345, 1353-1354 (Fed.
Cir. 2006).

    As discussed above, there was sufficient evidence on
the record in this case to suggest that Fischer had not
reported actual Brix levels for at least some of its home
market sales. Because Commerce’s use of Fischer’s
original home market Brix levels may have resulted in an
imposition of unjustified duties, the decision to reject
Fischer’s corrected data was an abuse of discretion.

    We therefore vacate the Court of International
Trade’s decision affirming Commerce’s refusal to accept
Fischer’s offer of corrected home market Brix data. On
remand, the court shall instruct Commerce to accept for
the record Fischer’s evidence of actual Brix levels for its
home market sales and, in light of that evidence, deter-
mine whether the anti-dumping duty must be recalcu-
lated.

              II. Inventory Carrying Costs

    Fischer contends that because it reported an average
inventory carrying period for worldwide sales rather than
home market-specific sales, Commerce’s home market
inventory carrying costs calculation was flawed. Accord-
ing to the Government, however, the issue of Fischer’s
inventory carrying costs is moot because that calculation
did not have any impact on the antidumping duty order.
Government Brief at p. 29, n.11. We agree. Accordingly,
FISCHER SA COMERCIO   v. US                               8


we decline to disturb the Court of International Trade’s
decision that “Commerce’s calculation of inventory carry-
ing cost . . . was supported by substantial evidence in the
record and in accordance with law . . . .” Fischer, 700 F.
Supp. 2d at 1380.

                   III. 90/60 Day Rule

    Fischer contends that Commerce ran afoul of 19
C.F.R. § 351.213(e)(1)(ii) by applying the 90/60 window of
19 C.F.R. § 351.414(e)(2) for the purpose of finding a
foreign like product sale to match with Fischer’s United
States sales.        According to Fischer, 19 C.F.R.
§ 351.213(e)(1)(ii) does not permit Commerce to rely on a
home market sale that occurred two days before the date
of suspension of liquidation because that sale was outside
the period of review. The Government argues that the
period of review provisions of 19 C.F.R. § 351.213(e)(1)(ii)
only relate to United States sales and, therefore, Com-
merce was permitted to apply the 90/60 day window of 19
C.F.R. § 351.414(e)(2) to Fischer’s home market sales.

     The Court of International Trade agreed with Com-
merce and determined that the agency had “acted within
its lawful authority and in accordance with law in its
application of the 90/60 day contemporaneity rule.”
Fischer, 700 F. Supp. 2d at 1381. We see no reason to
disturb that finding. See Hyatt v. Dudas, 551 F.3d 1307,
1311 (Fed. Cir. 2008) (“An agency’s interpretation of its
own regulation is entitled to substantial deference, and
the reviewing court should give effect to the agency’s
interpretation so long as it is reasonable.”) (internal
citations omitted); see also Bowles v. Seminole Rock &
Sand Co., 325 U.S. 410, 414 (1945) (“the administrative
interpretation . . . becomes of controlling weight unless it
is plainly erroneous or inconsistent with the regulation”).
9                                 FISCHER SA COMERCIO   v. US


                       IV. Zeroing

    Fischer argues in two footnotes that there “would
have [been] no dumping margins . . . if [Commerce] had
not applied its arbitrary zeroing methodology,” Brief of
Plaintiffs-Appellants at p. 9, n.1 (citing Dongbu); Reply
Brief at p. 2, n. 1 (citing Dongbu and JTKET Corp. v.
United States, 642 F.3d 1378 (Fed. Cir. 2011)), and asks
the court to remand in accordance with Dongbu and
JTKET for Commerce to explain why it is using zeroing in
certain proceedings (i.e., administrative reviews) but not
others (i.e., investigations), Oral Argument at 3:01-3:07
(available at http://www.cafc.uscourts.gov/oral-argument-
recordings/2011-1152/all).

    The Government responds that because this issue was
not fully briefed, it is not properly before the court. Oral
Argument at 18:00-18:12. Be that as it may, since we are
remanding this case for consideration of Fischer’s actual
home market Brix data, we also expect Commerce to
address on remand “why it is a reasonable interpretation
of the statute to zero in administrative reviews, but not in
investigations.” JTKET, 642 F.3d at 1384.

                       CONCLUSION

    We vacate the judgment of the Court of International
Trade affirming Commerce’s refusal to accept Fischer’s
evidence of actual Brix levels for its home market sales,
and remand with instructions for Commerce to consider
that evidence and if necessary recalculate the anti-
dumping duty accordingly. On remand, Commerce should
also provide its reasoning for its continued practice of
zeroing in certain proceedings but not others. In all other
respects, we affirm the court’s decisions.
FISCHER SA COMERCIO   v. US            10


  AFFIRMED-IN-PART, VACATED-IN-PART, AND
                REMANDED
       NOTE: This disposition is nonprecedential.

  United States Court of Appeals
      for the Federal Circuit
              __________________________

   FISCHER S.A. COMERCIO, INDUSTRIA AND
             AGRICULTURA AND
      CITROSUCO NORTH AMERICA, INC.,
              Plaintiffs-Appellants,

                           v.
                  UNITED STATES,
                  Defendant-Appellee,

                         AND

FLORIDA CITRUS MUTUAL AND CITRUS WORLD
                   INC.,
            Defendants-Appellees,

                         AND

   A. DUDA & SONS AND SOUTHERN GARDENS
      CITRUS PROCESSING CORPORATION,
              Defendants-Appellees.
              __________________________

                      2011-1152
              __________________________

   Appeal from the United States Court of International
Trade in case no. 08-CV-0277, Judge Gregory W. Carman.
               __________________________
FISCHER SA COMERCIO   v. US                               2


BRYSON, Circuit Judge, dissenting.

    I respectfully dissent. I would uphold the decision of
the Court of International Trade as to the issue of the use
of brix levels in making home-market sales calculations,
and I would therefore affirm the judgment in this case.

    Fischer argues that Commerce improperly refused to
consider corrected information as to the actual brix levels
used for home-market sales. The problem is that Fischer
did not proffer the corrected information in a sufficiently
clear manner to put Commerce on notice that it needed to
correct an error in its calculations.

    In the document on which this issue turns—Fischer’s
May 8, 2008, case brief—Fischer complained about Com-
merce’s methodology, but it made a different argument
from the one it makes now. In its case brief, Fischer
argued that Commerce should have used “standard brix”
levels when calculating prices for purposes of determining
the dumping margin, not the actual brix levels at which
the product is sold. Using the actual brix levels, Fischer
argued, would result in a price distortion with respect to
sales that Fischer made to its U.S. customer.

    Fischer then stated that the “same factor applies to
the NFC [not from concentrate] sales in Brazil.” Fischer
noted that the “standard NFC brix value for Brazil sales
is 11.5,” and added that a “minimum level is normally
provided in the specification sheet at the level indicated.”
At that point, the case brief cited an exhibit (Exhibit 3)
that referred to a minimum brix level, but the brief pro-
vided no further explanation of the significance of that
number. Fischer closed that section of its case brief by
stating that if the Department chose “to convert the
gallons and kilograms [of juice] to pounds/solids, the use
3                                 FISCHER SA COMERCIO   v. US


of standard brix to convert allows a price neutral conver-
sion from gallons eliminating the price distortion that
resulted from the application of actual brix.”

    What Fischer did not say in its case brief was that it
had misreported the actual brix levels of products sold to
its U.S. customer and that it had reported the minimum
brix levels instead. Perhaps Commerce could have di-
vined as much from the materials Fischer provided for it.
But to do so would have required Commerce to extrapo-
late from the reference to the minimum brix level in a
single product specification found in Exhibit 3 and to look
to other exhibits that were submitted in connection with
other, unrelated issues raised in Fischer’s case brief. At a
minimum, Fischer did not clearly present to Commerce
the fact that it had erroneously reported minimum brix
levels rather than actual brix levels. In fact, Fischer did
not raise the issue of its misreporting until its Motion for
Judgment on the Agency Record before the Court of
International Trade. The trial court made that point,
noting that “Fischer appears not to have reported the
incorrect sales Brix level” to Commerce, and for that
reason the court found “no reason to question Commerce’s
reliance on the information Fischer supplied during the
investigation.”

    Fischer relies on NTN Bearing Corp. v. United States,
74 F.3d 1204 (Fed. Cir. 1995), and Timken U.S. Corp. v.
United States, 434 F.3d 1345 (Fed. Cir. 2006), for the
proposition that Commerce must accept corrections to
errors identified by the respondent in Commerce’s pre-
liminary determinations. Those cases, however, involved
errors that were called to Commerce’s attention during
the administrative process. In this case, Fischer failed to
draw Commerce’s attention to the perceived error until
well after the administrative proceedings had become
FISCHER SA COMERCIO   v. US                               4


final. As we have explained, “Commerce is not required
to correct a final determination reflecting an error made
by a private party when that error is not apparent from
Commerce's final calculations . . . or from the final deter-
mination itself.” Alloy Piping Prods., Inc. v. Kanzen Tetsu
Sdn. Bhd., 334 F.3d 1284, 1292 (Fed. Cir. 2003) (noting
that NTN Bearing recognizes “a strong interest in the
finality of Commerce's decisions [and] does not require
correction of errors after a final determination”). Here,
Fischer raised the issue of its erroneous reporting of brix
levels too late for Commerce to address the matter in its
final determination. See Timken, 434 F.3d at 1353
(“Commerce is free to correct any type of importer error . .
. in the context of making an antidumping duty determi-
nation, provided that the importer seeks correction before
Commerce issues its final results and adequately proves
the need for the requested corrections.” (emphasis
added)).

    Because Commerce was not put on adequate notice at
any point during the administrative proceedings that
Fischer was contending that it had erroneously reported
minimum brix levels as actual brix levels, it was not error
for the Court of International Trade not to require Com-
merce to recalculate the antidumping margin based on
what Fischer belatedly identified as an error on its part.
