Slip Op. 07-96 

UNITED STATES COURT OF INTERNATIONAL TRADE

____________________________________

:

LOUIS DREYFUS CITRUS INC., :

:

Plaintiff, :

: Before: WALLACH, Judge

v. : Court No.: 06-00122

:

UNITED STATES, : PUBLIC VERSION

:

Defendant, :

and :

:

FLORIDA CITRUS MUTUAL et al., :

:

Defendant-Intervenors. :

____________________________________:

[Plaintiff’s Rule 56.2 Motion for Judgment Upon the Agency Record is DENIED and the

Agency’s Determination is AFFIRMED.]

Dated: June 19, 2007

Dewey Ballantine LLP, (Kevin M. Dempsey, David A. Bentley and Christophe F. Guibert de

Bruet) for Plaintiff Louis Dreyfus Citrus Inc.

Peter D. Keisler, Assistant Attorney General; David M. Cohen, Director, Commercial Litigation

Branch, Civil Division, U.S. Department of Justice (Michael J. Dierberg); and Mildred E.

Steward, Office of Chief Counsel for Import Administration, U.S. Department of Commerce, of

Counsel, for Defendant United States.

Barnes, Richardson & Colburn, (Matthew T. McGrath, Stephen W. Brophy and James B. Doran)

for Defendant-Intervenors Florida Citrus Mutual, A. Duda & Sons, Inc. (d/b/a Citrus Belle),

Citrus World, Inc., and Southern Gardens Citrus Processing Corporation (d/b/a Southern

Gardens).
2

OPINION

Wallach, Judge:

I

Introduction

This case comes before the court on a Motion for Judgment Upon the Agency Record

pursuant to USCIT Rule 56.2 brought by Louis Dreyfus Citrus Inc. (“Plaintiff” or “Louis

Dreyfus”). Plaintiff claims it has suffered injury in fact from an order imposing antidumping

duties (“AD”) on frozen concentrated orange juice for further manufacture (“FCOJM”) produced

and exported by Plaintiff. Complaint ¶ 7; Antidumping Duty Order: Certain Orange Juice from

Brazil, 71 Fed. Reg. 12,183 (March 9, 2006) (“AD Order”). Plaintiff challenges, inter alia, (1)

the authority of the United States Department of Commerce (“Commerce” or “the Department”)

to initiate an investigation prior to the revocation of an order covering identical merchandise, (2)

the producer-specific scope of the investigation, and (3) aspects of Commerce’s Final

Determination in Notice of Final Determination of Sales at Less Than Fair Value and

Affirmative Final Determination of Critical Circumstances: Certain Orange Juice from Brazil, 71

Fed. Reg. 2,183 (January 13, 2006) (“Final Determination”), as amended by 71 Fed. Reg. 8,841

(February 21, 2006) (“Amended Final Determination”). Memorandum of Law in Support of

Plaintiff’s Rule 56.2 Motion for Judgment Upon the Agency Record (“Plaintiff’s Motion”) at 2-

3; Notice of Initiation of Antidumping Duty Investigation: Certain Orange Juice From Brazil, 70

Fed. Reg. 7,233 (February 11, 2005) (“Initiation of OJ AD Inv.”). 

For the reasons set forth herein, Plaintiff’s Motion is DENIED. 
1

 FCOJ and FCOJM are identical merchandise. See, e.g., Frozen Concentrated Orange

Juice from Brazil, USITC Pub. 3760, Inv. Nos. 731-TA-326, I-11 (March 2005) (“Second FCOJ

Sunset Review”).

3

II

Background

Plaintiff is an importer of frozen concentrated orange juice (“FCOJ”)1 and the parent

company of Coinbra-Frutesp, S.A. (“Coinbra-Frutesp”), a Brazilian producer of FCOJ.

Complaint ¶ 10. On March 18, 2004, the United States Customs and Border Protection (“CBP”

or “Customs”) issued a Notice of Action concerning an entry made by Coinbra-Frutesp on

November 17, 2003 in which it determined that exports of orange juice manufactured by

Coinbra-Frutesp were subject to the “all others” rate under a 1987 order on frozen concentrated

orange juice from Brazil. Letter from Christopher Dunn, Willkie Farr & Gallagher LLP to

Donald L. Evans, Sec’y of Commerce, U.S. Dep’t of Commerce (August 4, 2004) (“LDCI CCR

Request”) at 4-5, Confidential Record (“C.R.”) at 5-6 (request for changed circumstances

review). Customs also required that deposits be made on entries until Commerce confirmed

Coinbra-Frutesp’s exclusion from the order in a changed circumstances review. Id. at 5, C.R. at

6; see also Antidumping Duty Order; Frozen Concentrated Orange Juice From Brazil, 52 Fed.

Reg. 16,426 (May 5, 1987) (“1987 FCOJ AD Order”).

In August 2004, Louis Dreyfus requested a changed circumstances review wherein

Plaintiff stated that “Louis Dreyfus, through its virtually wholly-owned subsidiaries, is the

successor in interest to both Frutesp and Frutropic,” both companies that had previously been

revoked from the 1987 FCOJ AD Order. LDCI CCR Request 5-6, C.R. at 6-7. The successor-ininterest relationship between Plaintiff and Coinbra-Frutesp was outlined by Plaintiff as follows. 
4

In 1988, Frutropic S.A. (“Frutropic”) was purchased by Comércio e Indústrias Brasileiras 

Coinbra S.A. (“Coinbra”), a wholly-owned subsidiary of Louis Dreyfus. Id. at 3, C.R. at 4. In

October of 1992, Frutropic ceased to exist as a legal entity when it was formally dissolved. Letter

from Christopher Dunn, Willkie Farr & Gallagher LLP to Carlos Gutierrez, Sec’y of Commerce,

U.S. Dep’t of Commerce (March 25, 2005) (“LDCI Additional Info. Letter”) at 1, C.R. at 42. On

April 7, 1993, Frutropic notified Commerce that the company had been incorporated into

Coinbra and that its named had changed to Coinbra or Frutropic/COINBRA. LDCI CCR Request

at 3-4, C.R. 4-5. Frutropic was at the time of purchase subject to the 1987 FCOJ AD Order from

which it was revoked in 1994 under the name Frutropic/COINBRA. Id; see also Frozen

Concentrated Orange Juice From Brazil; Final Results of Antidumping Duty Administrative

Review and Revocation of Order in Part, 59 Fed. Reg. 53,137 (October 21, 1994) (“1994 FCOJ

Final Results”). Coopercitrus Industrial Frutesp, S.A. (“Frutesp”) was purchased by Plaintiff in

1993 after which “the assets, management and employees of Frutesp were transferred to the

control of Louis Dreyfus and subsumed by it.” LDCI CCR Request at 6, C.R. at 7. The 1987 AD

order for Frutesp had already been revoked in 1991. Id. at 2, C.R. at 3; Frozen Concentrated

Orange Juice From Brazil; Final Results and Termination in Part of Antidumping Duty

Administrative Review; Revocation in Part of the Antidumping Duty Order, 56 Fed. Reg. 52,510

(October 21, 1991) (“1991 FCOJ Final Results”). In 1994 the name of the merged company was

changed to Coinbra-Frutesp. LDCI CCR Request at 6, C.R. at 7. As a result of the outlined

transactions, by 1994, Louis Dreyfus had acquired all assets of both Frutesp and Frutropic, and

since the revocation of the antidumping duty order on Frutropic/COINBRA, has exported FCOJ

to the United States exclusively under the name Coinbra-Frutesp. Id. at 4, C.R. at 5. 
5

Prior to the commencement of Commerce’s investigation into Certain Orange Juice from

Brazil, the 1987 order on FCOJ underwent a sunset review. Initiation of Five-Year (“Sunset”)

Reviews, 69 Fed. Reg. 17,129 (Dep’t of Commerce April 1, 2004); Frozen Concentrated Orange

Juice From Brazil, 69 Fed. Reg. 17,230 (U.S. Int’l Trade Comm’n April 1, 2004) (“Initiation of

FCOJ Sunset Review”). In November 2004 interested domestic parties submitted a letter to

Commerce withdrawing any further interest in the 1987 order due to “its lack of any remaining

remedial effect.” Letter from Matthew T. McGrath et al., Barnes, Richardson & Colburn to

Donald L. Evans, Sec’y of Commerce, U.S. Dep’t of Commerce (December 27, 2004)

(“Petition”) at 3, C.R. at 13. The interested domestic parties considered the 1987 order to have

“small injury-mitigating effect” because only exporters Citrovita Agro Industrial, Ltda

(“Citrovita”) and Branco Peres Citrus were still known to be covered by the order. Id. at 4, C.R.

at 14. In addition, Citrovita was allegedly evading the order through tolling arrangements with a

party excluded from the order, rendering the order largely ineffective. Letter from Matthew T.

McGrath et al., Barnes, Richardson & Colburn to Donald L. Evans, Sec’y of Commerce, U.S.

Dep’t of Commerce (January 6, 2005) (“Petitioners’ Response to Request for Add’l Info. in

Support of Petition”) at 14, C.R. at 20. At the time of the sunset review most major producers

and/or exporters of FCOJM had either been revoked or excluded from the order and as a

consequence were outside the purview of the order. Petition at 3, C.R. at 13. Moreover, the 1987

order did not cover pasteurized single-strength orange juice not-from-concentrate (“NFC”),

which was a new product that had only been imported into the U.S. market subsequent to the

issuance of the 1987 order due to new and more cost-efficient means of transporting the

merchandise. Id; see also Certain Orange Juice from Brazil, USITC Pub. 3838, Inv. Nos. 731-
6

TA-1089 (March 2006) (“Final ITC Injury Determination”) at IV-1. On April 13, 2005,

Commerce revoked the 1987 order in its entirety. Revocation of Antidumping Duty Order:

Frozen Concentrated Orange Juice from Brazil, 70 Fed. Reg. 19,416 (April 13, 2005) (“FCOJ

Revocation”).

On December 27, 2004, Florida Citrus Mutual, A. Duda & Sons, Inc. (d/b/a Citrus Belle),

Citrus World, Inc., and Southern Garden Citrus Processing Corporation (d/b/a Southern Gardens)

(collectively “Defendant-Intervenors”), domestic producers of orange juice, filed an antidumping

duty petition with Commerce alleging that imports of FCOJM and NFC from Brazil were being

sold in the United States at less than fair value (“LTFV”), materially injuring the domestic

industry. Defendant’s Response to Plaintiff’s Motion for Judgment Upon the Agency Record

(“Defendant’s Motion”) at 3. Petitioners requested that reconstituted orange juice, frozen orange

juice for retail (“FCOJR”) and FCOJM produced by companies still subject to the old order be

excluded from the scope of the investigation. Petition at 42-43, C.R. at 15-16. As a result of the

petition, Commerce, on February 11, 2005, initiated a LTFV investigation on Certain Orange

Juice from Brazil. Initiation of OJ AD Inv., 70 Fed. Reg. at 7,234. Commerce crafted the scope

of the investigation specifically to not overlap with the 1987 FCOJ AD Order and therefore

included all orange juice not-from-concentrate, a class of merchandise not previously subject to

an order and FCOJM produced and/or exported only by Cargill Citrus Limitada, Citrosuco

Paulista S.A., Frutropic S.A., Montecitrus Industria e Comercio Limitada, and Sucocitrico

Cutrale S.A. (Cutrale), all of whom had been excluded or revoked from the old order. Id. at

7,234. Commerce stated that it had also commenced a changed circumstances review to

determine whether Frutesp and Frutropic, trading under the name of Coinbra-Frutesp, would be
7

subject to the investigation. Id. In its initiation notice Commerce stated that “should the

Department find Louis Dreyfus or COINBRA-Frutesp to be the successor-in-interest to [Frutesp

and Fruitropic], the successor company will be included as part of this proceeding.” Id. 

On March 18, 2005, Louis Dreyfus withdrew its request for a changed circumstances

review and explained in a letter to Commerce on April 4, 2005, that for purposes of the new

investigation Coinbra-Frutesp could not be considered the successor-in-interest to either

Frutropic or Frutesp. Letter from Christopher Dunn, Willkie Farr & Gallagher LLP to Carlos

Gutierrez, Sec’y of Commerce, U.S. Dep’t of Commerce (March 18, 2005) (“LDCI Withdrawal

of CCR Resquest”) at 1-2, Plaintiff’s Appendix at Tab J; Letter from Christopher Dunn, Willkie

Farr & Gallagher LLP to Carlos Gutierrez, Sec’y of Commerce, U.S. Dep’t of Commerce (April

4, 2005) (“Scope Comments Letter”) 9-10, C.R. at 59-60. Louis Dreyfus claimed that CoinbraFrutesp’s relationship to Frutropic and Frutesp did not meet Commerce’s articulated standards by

which it evaluates whether an entity is a successor-in-interest to an exporter and therefore could

not lawfully be included within the scope of the investigation. Scope Comments Letter at 9-10,

C.R. at 59-60. 

On April 13, 2005, Commerce issued a notice of rescission of the changed circumstances

review. Notice of Rescission of Changed Circumstances Antidumping Duty Administrative

Review: Frozen Concentrated Orange Juice from Brazil, 70 Fed. Reg. 19,417 (April 13, 2005)

(“Notice of Rescission”). Despite the rescission, Commerce’s proceeded with its successor-ininterest determination as pertaining to the new investigation. See, e.g., Final Determination, 71

Fed. Reg. at 2,184. Commerce issued a final determination on January 13, 2006, in which it

deemed Coinbra-Frutesp the successor-in-interest to Frutropic and, consequently, that its
8

production and export of FCOJM fell within the scope of Commerce’s antidumping duty

investigation and within the purview of the resulting AD order on Certain Orange Juice from

Brazil. Id. at 2,183; AD Order, 71 Fed. Reg. 12,183. On March 9, 2006, Commerce published

the new antidumping duty order on Certain Orange Juice from Brazil. AD Order, 71 Fed. Reg.

12,183.

Plaintiff timely commenced this action under 19 U.S.C. § 1516a(a)(2)(A)(i)(II).

Complaint ¶ 5. The court has jurisdiction pursuant to 28 U.S.C. § 1581(c). Oral argument was

held on April 18, 2007. 

III

Standard of Review

It is incumbent upon this court to sustain “any determination, finding, or conclusion” by

Commerce 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); see also Corus Staal BV v. United States,

395 F.3d 1343, 1346 (Fed. Cir. 2005). Substantial evidence is “such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.” Consol. Edison Co. v.

NLRB, 305 U.S. 197, 229, 59 S. Ct. 206, 83 L. Ed. 126 (1938). The sufficiency of the evidence

is determined by “considering the record as a whole, including evidence that supports as well as

evidence that ‘fairly detracts from the substantiality of the evidence.’” Huaiyin Foreign Trade

Corp. v. United States, 322 F.3d 1369, 1374 (Fed. Cir. 2003) (citing Atl. Sugar, Ltd. v. United

States, 744 F.2d 1556, 1562 (Fed. Cir. 1984)). 

In deciding whether the agency’s statutory interpretation and application was made in

accordance with law the court is guided by the two-step analytical framework set out in Chevron
9

U.S.A. Inc. v. Nat’l Res. Def. Council, Inc., 467 U.S. 837, 842-843, 104 S. Ct. 2778, 81 L. Ed.

2d 694 (1984). Absent the “unambiguously expressed intent of Congress” the court will

determine whether the agency’s interpretation of the antidumping statute is a “permissible

construction of the statute.” Chevron, 467 U.S. at 843. The court will accord deference to the

agency’s determination and thus “not impose its own views as to the sufficiency of the agency’s

investigation or question the agency’s methodology,” so long as such procedures are a

“reasonable means of effectuating the statutory purpose, and there is substantial evidence in the

record supporting the agency’s conclusions . . . .” Ceramica Regiomontana, S.A. v. United States,

10 CIT 399, 404-05, 636 F. Supp. 961 (1986), aff’d, 810 F.2d 1137 (Fed. Cir. 1987). 

IV

Discussion

A

Commerce Lawfully Defined the Scope of the Investigation and Order 

on a Producer-Specific Basis

When Commerce initiated the antidumping duty investigation on Certain Orange Juice

from Brazil it crafted the scope of the investigation to include only “orange juice for transport

and/or further manufacturing” produced in two different forms as either “(1) [f]rozen orange

juice in a highly concentrated form, sometimes referred to as frozen concentrated orange juice for

further manufacturing (FCOJM); and (2) pasteurized single-strength orange juice which has not

been concentrated, referred to as Not-From-Concentrate (NFC).” Initiation of OJ AD Inv., 70

Fed. Reg. at 7,233-34. Due to the 1987 AD order on FCOJ from Brazil still in effect, Commerce

specified the scope of the new investigation to cover “only FCOJM produced and/or exported by

those companies who were excluded or revoked from the existing antidumping order on FCOJ
10

from Brazil as of December 27, 2004.” Id. at 7,234. In its initiation notice Commerce identified

the FCOJM producers and exporters subject to the investigation as Cargill Citrus Limitada,

Citrosuco Paulista S.A., Frutropic S.A., Montecitrus Industria e Comercio Limitada, and

Sucocitrico Cutrale S.A. (Cutrale) and specified that Louis Dreyfus and Coinbra-Frutesp would

be subject to the investigation if either were deemed to be the successor-in-interest to Frutesp and

Frutropic, because both companies had been revoked from the 1987 FCOJ AD Order. Id.; see

also 1991 FCOJ Final Results, 56 Fed. Reg. 52,510; 1994 FCOJ Final Results, 59 Fed. Reg.

53,137.

Plaintiff argues that the scope of Commerce’s investigation was crafted contrary to statute

because it was producer-specific and yielded a discriminatory result. Plaintiff’s Motion at 14-15

(citing 19 U.S.C. § 1673 (2000)). Plaintiff contends that discrimination occurred when

Commerce subjected only revoked or excluded producers and exporters to AD duty liability

while exempting companies that were subject to the 1987 order prior to its revocation, but now

incur no AD duty liability. Id.; FCOJ Revocation, 70 Fed. Reg. 19,416. While the International

Trade Commission (“ITC”) undertook a full review of the 1987 order and in March 2005 issued

a negative injury determination, the domestic industry had already informed Commerce in

November 2004 that it no longer had any interest in the old order. Plaintiff’s Motion at 14;

Petition at 3, C.R. at 13. In this regard Plaintiff argues that Commerce should have halted the

investigation because it was aware of the impending revocation of the old order and that it could

result in a new order that would not encompass all Brazilian producers of FCOJM. Plaintiff’s

Motion at 14-15. Louis Dreyfus contends that the uneven application of antidumping duty laws

to producers and exporters of identical merchandise constitutes discrimination, which is contrary
11

to the AD statute. Id. Because the antidumping statute requires that (1) duties be imposed on “all

imports of the subject merchandise found to be dumped” and (2) exporters and producers not

investigated must be subject to the “all others” rate, Plaintiff argues that by crafting a producerspecific scope Commerce acted contrary to its mandate. Id. at 15-16 (citing 19 U.S.C. §§ 1673,

1673d(c)). Reading the statute otherwise, Plaintiff contends, would impermissibly construe the

statute contrary to the United States’ international obligations. Id. at 16-17 (citing Murray v.

Schooner Charming Besty, 6 U.S. (2 Cranch) 64, 118, L. Ed. 208 (1804) (“[A]n act of Congress

ought never to be construed to violate the law of nations if any other possible construction

remains . . . .”)). In support of its argument Plaintiff cites Article 9.2 of the World Trade

Organization Anti-dumping Agreement (“WTO AD Agreement”) to which the United States is

party. Id. at 16. The agreement provides that the antidumping duties shall be collected “on a nondiscriminatory basis on imports of such product from all sources.” Id.; WTO AD Agreement, Art.

9.2. Plaintiff notes that the U.S. Trade Representative has argued before World Trade

Organization (“WTO”) that non-discrimination for purposes of Article 9.2 is achieved when

duties are properly imposed on a “product-specific [] basis, not a company-specific basis.”

Appellate Body Report, United States – Sunset Review of Anti-Dumping Duties on

Corrosion-Resistant Carbon Steel Flat Products from Japan, ¶ 48, 150, WT/DS244/AB/R

(December 15, 2003) (adopted January 9, 2004). Plaintiff also cites to the Statement of

Administrative Action to the Uruguay Round Agreements Act, which requires that LTFV

investigations be conducted on a country-wide basis, and therefore, it says, implicitly not on a

producer-specific basis. Plaintiff’s Motion at 17-18 (citing the Uruguay Round Agreements Act,

Statement of Administrative Action (“SAA”), H.R. Doc. 103-826 at 833, 875 (1994), reprinted
12

in, 1994 U.S.C.C.A.N. 4040). The policy reasons underlying these rules, Plaintiff contends, are

to avoid petitioners “cherry-pick[ing] which foreign producers/exporters would be subject to an

antidumping investigation and duties” and thus convert the antidumping legislation into one that

creates, rather than remedies, unfair trading conditions. Id. at 18. Plaintiff concedes that while

particular producers and exporters are regularly and legally excluded from AD duty liability

under orders pursuant to an investigation, it is not proper to exclude companies that have not

been investigated and found not to be dumping. Id. at 16-17 nn.7-8. Plaintiff suggests a number

of actions that Commerce could have taken in order to subsequently include remaining FCJOM

producers within the scope of the new investigation following the revocation of the old order. Id.

at 18-19. Plaintiff further argues that it was incumbent on Commerce to take action to “prevent

petitioners from ‘gaming’ the antidumping statute,” and because it was aware that its

antidumping investigation would produce “prejudicial and discriminatory results.” Id. at 19-20

n.12 (citing Gilmore Steel Corp. v. United States, 7 CIT 219, 223, 585 F. Supp. 670 (1984)). 

Defendant contends that nothing in the antidumping statute bars it from crafting the scope

of an investigation on a company-specific basis where circumstances exist that warrant such a

measure. Defendant’s Motion at 12. Commerce asserts that the decision to include specifically

named producers within the scope of the investigation constitutes a reasonable exercise of its

discretion. Id. at 9. 

As an initial matter, it is incumbent on Commerce to engage in statutory interpretation

where the “Congress has not directly addressed the precise question at issue.” See Chevron, 467

U.S. at 842. In such circumstances the role of the court is “not [to] conclude that the agency

construction was the only one it permissibly could have adopted to uphold the construction,” but
13

instead to determine whether the agency’s interpretation was “reasonable” in light of the record

evidence. Id. at 843 n.11, 844. Here, the antidumping statute does not prohibit Commerce from

crafting a company-specific scope, nor is “discrimination” contrary to the statutory regime. 19

U.S.C. § 1673. The Congressional intent underlying the antidumping statute is to “protect

domestic manufacturing against foreign manufacturers who sell at less than fair market value.”

Koyo Seiko Co. v. United States, 20 F.3d 1156, 1159 (Fed. Cir. 1994). Commerce’s

interpretation of the statute led to the inclusion of producers revoked or excluded from a previous

order into a new investigation in which the scope was best delineated by producer.

Plaintiff’s contention that Commerce is prohibited from initiating investigations with a

company-specific scope covering revoked and excluded producers is not supported by binding

law. Commerce has periodically initiated investigations with company-specific scopes

pertaining both to revoked and excluded producers. See, e.g., Issues and Decision Memorandum

for the Antidumping Duty Investigation of Certain Orange Juice from Brazil from Stephen J.

Claeys, Deputy Assistant Sec’y for Import Admin. to David M. Spooner, Assistant Sec’y for

Import Admin., U.S. Dep’t of Commerce (January 6, 2005) (“Decision Memo”) at 6, C.R. at 70. 

For example, in Commerce’s investigation of Woodwind Pads the petitioner requested an

investigation into woodwind instrument keys manufactured and exported by a single

manufacturer that had been revoked from a previous order on identical merchandise. Initiation of

Antidumping Duty Investigation; Pads for Woodwind Instrument Keys from Italy Manufactured

by Luciano Pisoni Accessori Strumenti Musicali A Fiato, 57 Fed. Reg. 54,220 (November 17,

1992) (“Woodwind Pads”). On the basis of the petition, Commerce launched a LTFV

investigation limiting the scope of the investigation to “pads for woodwind instrument keys,
2

 The final determination covered two producers, but was still company-specific because

only two manufacturers and exporters of woodwind pads from Italy were identified. See Final

Determination; Antidumping Duty Investigation of Pads for Woodwind Instrument Keys From

Italy Manufactured by Music Center s.n.c. di Luciano Pisoni and Lucien s.n.c. di Danilo Pisoni &

C., 58 Fed. Reg. 42,295 (August 9, 1993). 

3

 Plaintiff’s contention that TRBs from Japan does not set precedent for Commerce’s use

of company-specific scopes is misplaced because the court’s concern in NTN Bearing Corp. of

Am. v. United States, 14 CIT 623, 747 F. Supp. 726 (1990) was that Commerce had crafted the

scope to conditionally include NTN merchandise in the event the merchandise would no longer

be subject to the preexisting order from which it had not yet been revoked. Id. In an earlier 

decision, the court noted that Commerce impermissibly departed from its own practice by

including a category of merchandise in a new investigation which was already covered by an

existing antidumping duty order through conditional inclusion, but the court did not hold that

drafting a company-specific scope was contrary to law. NTN Bearing Corp. of Am. v. United

14

which are manufactured by Pisoni.”2Id.; see also Decision Memo at 6, C.R. at 70. Further, in

another investigation into Nylon Impression Fabric Commerce initiated an investigation into two

named producers that had previously been excluded from an existing order. Nylon Impression

Fabric From Japan: Initiation of Antidumping Duty Investigation, 50 Fed. Reg. 28,111 (July 10,

1985) (“Nylon Impression Fabric”). Commerce defined the scope of that investigation to include

only “nylon impression fabric from Japan, produced by or for the account of Asahi and

Shirasaki.” Id. Similarly in an investigation into tapered roller bearings from Japan, Commerce

defined the scope of the investigation to cover all tapered roller bearings and parts thereof

manufactured exclusively by NTN, a manufacturer that had previously been revoked from a preexisting order on identical merchandise. Final Determination of Sales at Less Than Fair Value;

Tapered Roller Bearings and Parts Thereof, Finished and Unfinished, From Japan, 52 Fed. Reg.

30,700 (August 17, 1987) (“TRBs from Japan”). The scope of the investigation was crafted

specifically to prevent NTN from importing parts of the merchandise and assembling it in the

United States thereby circumventing the order. Decision Memo at 6-7, C.R. at 70-71.3 Plaintiff
States, 13 CIT 91, 94, 705 F. Supp. 594 (1989), remanded on other grounds, 892 F.2d 1004 (Fed.

Cir. 1989).

15

distinguishes these cases by arguing that the producers and exporters had received

“nondiscriminatory treatment” because the original order remained in place and therefore all

producers were subject to either the original order or the follow-up investigation and that “no

exporter was exempt from antidumping duties without having first been investigated and found

not to be dumping.” Plaintiff’s Motion at 17 n.8. However, all producers or exporters of FCOJM

have been recently investigated either as part of the sunset reviews of the old order or as part of

the new investigation. In fact, both Citrovita and Branco Peres Citrus, which Plaintiff cites to in

its brief as being exempted from AD liability while still dumping, were found in the final ITC

sunset determination to not cause material injury to the domestic industry, despite an earlier

affirmative injury determination. Frozen Concentrated Orange Juice From Brazil; Final Results

of the Expedited Sunset Review of the Antidumping Order, 69 Fed. Reg. 54,117 (Dep’t of

Commerce September 7, 2004) (“Final Results of Expedited FCOJ Sunset Review”); Second

FCOJ Sunset Review at 3. Therefore all producers and exporters were subject to AD duty

liability prior to the revocation of the 1987 order and when the new investigation was initiated.

Second FCOJ Sunset Review, at 3-5; FCOJ Revocation, 70 Fed. Reg. 19,416; Initiation of OJ

AD Inv., 70 Fed. Reg. 7,233. Furthermore, in keeping with the decision handed down in NTN

Bearing, 13 CIT 91, Commerce declined to craft a scope that conditionally included producers

and exporters still subject to the 1987 order and instead named all producers that at the time were

excluded or revoked from that order to be included in the new investigation. Initiation of OJ AD

Inv., 70 Fed. Reg. 7,233. 
16

Furthermore, Plaintiff argues that application of AD duties on a non-discriminatory basis

is implicit in 19 U.S.C. § 1673, which requires that duties are assessed on “merchandise” and not

on specific producers. Plaintiff’s Reply to Defendant’s and Defendant-Intervenors’ Responses to

Plaintiff’s Motion for Judgment Upon the Agency Record (“Plaintiff’s Reply”) at 2 (citing 19

U.S.C. § 1673; Jia Farn Mfg. Co., Ltd. v. United States, 17 CIT 187, 192, 817 F. Supp. 969

(1993)). Clearly antidumping laws are aimed at merchandise and not at specific foreign

producers, but this argument does not take into account the limited circumstances in which

Commerce has reason to craft a narrower scope. In addition, Plaintiff cites to 19 U.S.C. §

1673d(c)(1)(B) as requiring that an “all others” rate be set for producers not investigated, again

not recognizing that Commerce with respect to FCOJM was restrained in broadening the scope

of the investigation to avoid an overlap with the existing order. Plaintiff’s Reply at 2. 

Plaintiff’s contention that a reading of the statute that permits Commerce to draft a

company-specific scope is contrary to the United States’ international obligations is also without

foundation. Whereas the Uruguay Round Agreements Act and Article 9.2 of the WTO AD

Agreement may refer to antidumping investigations as traditionally conducted and applied on a

country-wide basis, neither agreement, by implication or otherwise, prohibits Commerce from

conducting investigations or issuing orders pertaining to specific producers or exporters. SAA,

H.R. Doc. 103-826 at 833, 875; WTO AD Agreement, Art. 9.2. Here, Commerce acted

reasonably by crafting a scope that prevented an overlap with an existing order, and contrary to

Plaintiff’s contentions, did not engage in “cherry-picking” whereby producers and exporters

would be subject to the order. In fact, launching an investigation on the basis of a petition, as

required by statute, despite an existing order and an on-going sunset review process, did not
17

create unfair trading conditions, whereas permitting foreign producers to chose which

investigations and orders they would be subject to might very well do so. 

Moreover, it was not incumbent on Commerce to refuse to initiate an investigation based

on merchandise already subject to an order, to rescind the investigation due to the on-going

sunset review of the old order, or to rescind the investigation when the 1987 order was revoked.

Commerce therefore did not err in denying petitioners’ request to include all Brazilian producers

of FCJOM within the scope of the order after revocation of the original order. See Letter from

Matthew McGrath, Barnes, Richardson & Colburn to Carlos Gutierrez, Sec’y of Commerce, U.S.

Dep’t of Commerce (March 31, 2005) (“Petitioners’ Request for Clarification of Scope”), C.R. at

53, P.R. 103; Letter from Louis Apple, Dir. AD/CVD Operations, U.S. Dep’t of Commerce to

Matthew T. McGrath, Barnes, Richardson & Colburn (June 27, 2005) (“Commerce’s Response

to Request for Scope Clarification”) at 1-2, Plaintiff’s Non-Confidential Appendix, Tab K. 

Section 1673 provides that antidumping duties will be imposed if: (1) Commerce makes a

determination that “a class or kind of foreign merchandise is being, or is likely to be, sold in the

United States at less than its fair value” and (2) the International Trade Commission determines

that “an industry in the United States is materially injured, or is threatened with material injury . .

. by reason of imports of that merchandise or by reason of sales (or the likelihood of sales) of that

merchandise for importation.” 19 U.S.C. § 1673(1)-(2). Further, 19 U.S.C. § 1673a which

governs procedures for the initiation of antidumping duty investigations is silent on the matter of

initiating investigations with respect to excluded or revoked producers. 19 U.S.C. §1673a. 

Regulations pertaining to the termination of an AD investigation and sunset reviews also do not

confer any obligations upon Commerce to terminate a review based on analogous circumstances
4

 Commerce initiated the new investigation on February 11, 2005 and the ITC’s negative

injury determination was published in the Federal Register on March 29, 2005. Initiation of OJ

AD Inv., 70 Fed. Reg. 7,233; Frozen Concentrated Orange Juice from Brazil Determination, 70

Fed. Reg. 15,884 (ITC March 29, 2005) (“ITC FCOJ Notice”).

5

 Petitioners filed a request for clarification of the scope investigation, seeking to include

producers/exporters of FCOJM previously subject to the 1987 order after revocation of the order.

Petitioners’ Request for Clarification of Scope. Commerce responded to this request that

petitioners should file an amended petition to include producers previously subject to the old

order. Commerce’s Response to Request for Scope Clarification at 2. Commerce noted in its

response to the scope clarification request that “it is the Department’s practice to accord the

petitioners’ scope description great weight in an investigation because the petitioners can best

determine from what imports they require relief.” Id. at 2. Petitioners did not file an amended

petition. 

18

to those of this case. 19 C.F.R. § 351.207. As a result, Plaintiff’s contention that “antidumping

duties be applied to all subject imports from a country subject to an investigation, unless a

particular producer/exporter is investigated and found not to be dumping,” is unsupported by the

statutory scheme. Plaintiff’s Motion at 15. In addition, because Commerce is required to initiate

an antidumping investigation within a limited time after a properly filed petition, it did not have

the option of awaiting the outcome of the sunset review before launching and deciding the scope

of the new investigation. 19 U.S.C. § 1673a(b)-(c)(1)(A).4 Instead, Commerce had to craft a

scope that excluded producers and exporters already subject to an order in effect.5 Contrary to

Plaintiff’s contention, Commerce is not at liberty to “restart” an investigation. Statutorily,

Commerce may only terminate a continuing investigation in limited circumstances, such as

where petitioners withdraw their petition or the ITC determines that imports of the subject

merchandise are negligible. 19 U.S.C. §§ 1673c(a)(1)(A); 1673b(a)(1). In addition, the court has

held it appropriate to terminate an investigation “in order to correct a manifest error which taints

the proceeding,” Gilmore Steel, 7 CIT at 223, and if the “allegations essential to the fundamental
6

 In Plaintiff’s Reply it argues that Gilmore conferred Commerce with the authority to

prevent a “discriminatory result” resulting from the exclusion of producers subject to the 1987

order, upon which it should have acted. Plaintiff’s Reply at 2. Plaintiff fails to show that

Commerce committed a “manifest error” under Gilmore or that any other legal authority compels

Commerce to terminate an investigation upon the subsequent revocation of an order which has

the effect of leaving some producers or exporters free of AD duty liability. 

19

sufficiency of a petition are false,” Tung Fong Indus. Co. v. United States, 366 F. Supp. 2d 1308,

1316 (CIT 2005). 

Here, Commerce properly crafted the scope to include all excluded and revoked Brazilian

exporters of FCOJM and all Brazilian exporters of NFC because at the time a valid order was

still in effect for FCOJ. Because Commerce is not precluded from crafting company-specific

scopes where necessary, and because Commerce crafted the scope so as to avoid an overlap with

an existing order, it did not commit a “manifest error” within the parameters of Gilmore Steel.

6

Further, this court under Chevron is required to give deference to Commerce’s determination

where it is consistent with “the intent of the legislature or the guiding purpose of the statute.”

Ceramica Regiomontana, 10 CIT at 405 (citing Chevron, 467 U.S. at 843-844). In this instance,

Commerce’s initiation of the investigation and its scope determination constituted a reasonable

means of effectuating the applicable statutes, supported by substantial evidence in the record and

in accordance with Commerce’s “precedent, practice, and the law.” Id.; Decision Memo at 8,

C.R. at 72. 

B

Commerce Lawfully Included Merchandise Produced and Exported by Coinbra-Frutesp

Within the Scope of the New Order

Plaintiff argues that Commerce crafted a scope in which there was an impermissible

overlap between the old order and the new investigation and order, and that Coinbra-Frutesp was
20

subject to both. Plaintiff’s arguments are unavailing because: (a) Commerce may conduct

investigations on producers that are revoked from an existing antidumping order, (b) CoinbraFrutesp was revoked from the old order before the petition for the new investigation was filed,

(c) Commerce has the authority to make a successor-in-interest determination at any time during

the investigation, and (d) Commerce did not expand the scope of the final determination by

including Coinbra-Frutesp in the new investigation. 

1

Commerce May Conduct Investigations on Producers Revoked from an Existing

Antidumping Order

Plaintiff contends that Commerce may not initiate an antidumping investigation on

merchandise already covered by an order and acted contrary to law in its initiation of the

investigation of Certain Orange Juice from Brazil. Plaintiff’s Motion at 21. Plaintiff’s primary

cited authority is NTN Bearing, 13 CIT 91, 96, in which this court held that Commerce is

prohibited “from initiating a new investigation which includes within its purview a class of

merchandise that is already subject to an outstanding antidumping duty order.” The court,

however, arrived at its conclusion based on the rationale that Commerce would engage in

redundancy by launching multiple investigations of identical merchandise when such

investigations could only permissibly result in a single order. Id. at 95. In addition, the court

noted that “[a]n affirmative antidumping duty determination should only be based on a class of

merchandise which actually will be subject to a resulting antidumping duty order.” Id. 

Defendant argues that it permissibly crafted the scope of the investigation so as to avoid

an overlap between the old order and the new investigation and that it has wide latitude in
21

defining the scope of an investigation and order. Defendant’s Motion at 33. 

In circumstances where the possibility of administering two proceedings arises,

Commerce has developed a policy to craft the scope of the latter proceeding to ensure that there

is no overlap. Decision Memo at 7, C.R. at 71 (citing Notice of Initiation of Antidumping Duty

Investigations: Magnesium Metal From the People’s Republic of China and the Russian

Federation, 69 Fed. Reg. 15,293, 15,294 n.2 (March 25, 2004); Notice of Final Determination of

Sales at Less Than Fair Value: Pure Magnesium in Granular Form From the People’s Republic of

China, 66 Fed. Reg. 49,345 (September 27, 2001)); see also Defendant-Intervenors’ Response in

Opposition to Rule 56.2 Motion for Judgment Upon the Agency Record (“DefendantIntervenors’ Motion”) at 24. In fact, Commerce considers avoiding double assessment of duties

a key element in crafting a scope. Id. (citing Color Television Receivers From Korea; Intention to

Review and Preliminary Results of Changed Circumstances Administrative Review and

Tentative Determination to Revoke Antidumping Duty Order, 52 Fed. Reg. 6,840 (March 5,

1987)). Here, Commerce acted consistently with prevailing law and with the holding in NTN

Bearing by legitimately initiating an investigation with a company-specific scope that did not

overlap with the existing order on the same merchandise, and by launching an investigation into

producers and exporters revoked or excluded from the old order. Acting on a petition aimed at

producers and exporters of FCOJM and NFC (an expanded class of merchandise) could only be

achieved by excluding companies already subject to an order on similar merchandise. Indeed, as

stated by the Government in its brief “the purpose of the company-specific scope in this case was

to address dumping by revoked and excluded producers in a way that did not overlap with the

1987 order.” Defendant’s Motion at 33. Moreover, initiating investigations on a class of
7

 Customs’ Notice of Action is not part of the administrative record of this case but is

periodically referred to in documents contained in the record and in the parties’ briefs. See, e.g.,

LDCI CCR Request at 4-5, C.R. at 5-6. Commerce rejected the inclusion of the notice in the

administrative record pursuant to 19 C.F.R. § 351.104(a)(2)(ii)(A) because it contained new

factual information and was untimely filed. Letter from Shawn Thompson, Program Manager,

AD/CVD Operations, U.S. Dep’t of Commerce to Christopher Dunn, Willkie Farr & Gallagher

LLP (November 2, 2005) (“Rejection Letter”), C.R. at 90.

22

merchandise already subject to a pre-existing order is not contrary to past precedent. For

example, in Woodwind Pads and Nylon Impression Fabric, Commerce conducted investigations

of different producers on the same merchandise that had previously been investigated and been

subject to an order. Id. at 12; see Woodwind Pads, 57 Fed. Reg. 54,220; Nylon Impression

Fabric, 50 Fed. Reg. 28,111.

2

FCOJ Produced and Exported by Coinbra-Frutesp was Not Subject to the Old

Antidumping Order when the Petition for the New Investigation was Filed

Plaintiff asserts that Customs’ Notice of Action7 filed in March 2004 subjected CoinbraFrutesp to the old order and that Commerce as a result impermissibly included Plaintiff in the

new investigation based on its successor-in-interest determination. Plaintiff’s Motion at 22. 

Louis Dreyfus also contends that the rescission of its requested changed circumstances review,

combined with the revocation of the 1987 order, automatically subjected Coinbra-Frutesp to the

old order and that Commerce consequently lost its opportunity to determine Coinbra-Frutesp’s

dumping liability when that was revoked. Id. at 29-30.

In Customs’ Notice of Action it stated that Coinbra-Frutesp were subject to payment of

cash deposits at a rate of 1.96% in the absence of a changed circumstances review confirming

Plaintiff’s right to exclusion from antidumping duty deposits. LDCI CCR Request at 4-5, C.R. at
23

5-6. In response, Louis Dreyfus filed a request for a changed circumstances review asking for

affirmation of its revoked status under the old order as the successor-in-interest to both Frutesp

and Frutropic. Id. at 5-6, C.R. at 6-7. In March 2005, Louis Dreyfus withdrew its request for the

changed circumstances review and asserted in a letter to Commerce that Coinbra-Frutesp is not

the successor-in-interest to Frutropic and Frutesp and therefore should “remain excluded from

this investigation.” LDCI Withdrawal of CCR Request 1-2, Plaintiff’s Appendix at Tab J; Scope

Comments Letter at 10, C.R. at 60. 

Louis Dreyfus has maintained that it was the successor-in-interest to Frutesp and

Frutropic since the revocation of both companies from the 1897 AD order, in 1991 and 1994

respectively, and thus has not paid any duties under the old order. LDCI CCR Request at 3-4,

C.R. at 4-5. Customs’ Notice of Action appropriately requested that Plaintiff submit a changed

circumstances review request in order to affirm its exclusion from the 1987 order under the “all

others” rate based on the fact that Plaintiff was trading under the name Coinbra-Frutesp, a

company not in existence at the time of the original order, not subject to the original

investigation, and never revoked from the order in its own capacity. Plaintiff predictably

submitted a request for a changed circumstances review in which it reiterated the position that it

had taken for the duration of the period in which it owned and operated Frutesp and Frutropic,

namely that Coinbra-Frutesp was the successor-in-interest to both and therefore the revocation

from the order should apply to all entries of FCOJ by Coinbra-Frutesp. Id. at 5, C.R. at 6. 

Plaintiff’s subsequent withdrawal of its request for review and its change in position would at

minimum render it liable for its omission to pay duties under the old order dating back almost a

decade. 
24

Plaintiff argues that Custom’s Notice of Action was “final and conclusive” agency action

rendering Coinbra-Frutesp liable under the old order absent a request for a scope ruling or

changed circumstances review. Plaintiff’s Motion at 24-25 (citing Fujitsu Ten Corp. of Am. v.

United States, 21 CIT 104, 107, 957 F. Supp. 245 (1997), aff’d sub nom. Sandvik Steel Co. v.

United States, 164 F.3d 596 (Fed. Cir. 1998); Sandvik Steel Co. v. United States, 21 CIT 140,

142, 957 F. Supp. 276 (1997), aff’d 164 F.3d 596). Plaintiff also contends that Customs’ Notice

of Action is part of the record despite Commerce’s exclusion of the document from the

administrative record because it was untimely filed. Plaintiff’s Motion at 23 n.15; see Rejection

Letter at 1-2, C.R. at 90-91. Plaintiff’s argument fails to recognize that Commerce makes scope

decisions that are binding upon Customs, not vice versa. Indeed, Customs’ role in liquidating

entries subject to antidumping orders is “merely ministerial” and “follows Commerce’s

instructions in assessing and collecting duties.” Mitsubishi Elec. Am., Inc. v. United States, 44

F.3d 973, 977 (Fed. Cir. 1994). In Mitsubishi Elec., the Federal Circuit stressed that the statute

upon which Plaintiff also relies, “makes clear that Customs does not make any section 1514

antidumping decisions” and that “Customs cannot modify . . . [Commerce’s] determinations,

their underlying facts, or their enforcement.” Id. (internal citations omitted). Plaintiff’s proposed

reading of the statute would divest Commerce of its role of “issuing, interpreting and

implementing anti-dumping orders.” Defendant’s Motion at 39. The real effect of the statute’s

language is to prevent producers and exporters from retroactively challenging the scope of an

order once the entries are liquidated by Customs and the exporter did not request a scope

decision from Commerce at the time. See 19 U.S.C. § 1514(b). Further, Plaintiff’s reliance on

Sandvik Steel and Fujitsu Ten does not lend support to the proposition that Customs’ liquidation
25

is “final and conclusive;” in fact, nothing in these opinions suggest that Commerce is precluded

from making a scope determination that is contrary to Customs’ scope determination prior to the

liquidation of entries.

Customs’ Notice of Action did not become part of the record and therefore cannot be

relied upon as forming the basis for Plaintiff’s liability under the old order. According to

prevailing case law only “documents and materials directly or indirectly considered by agency

decision-makers” become part of the administrative record. Thompson v. United States, 885 F.2d

551, 555 (9th Cir. 1989). Plaintiff has not adequately demonstrated that Commerce considered

Customs’ Notice of Action in its investigation and therefore this court is similarly unable to base

a decision on a document which is not contained in the record, and upon which the agency’s

determination did not rely. This court held that “those documents at the agency which become

sufficiently intertwined with the relevant inquiry are part of the record, no matter how or when

they arrived at the agency.” Acciai Speciali Terni S.p.A. v. United States, 24 CIT 1064, 1071,

118 F. Supp. 2d 1298 (2000) (internal citations omitted). However, there Commerce used

significant portions of the administrative records in two separate proceedings to arrive at its

conclusion in both proceedings, therefore creating an overlap which necessitated that the court

was able to consider both records on review of the agency’s determination. Id. at 1072. This is

not the case here.

Furthermore, the notice of rescission of the changed circumstances review did not state

that “CBP would continue to suspend liquidation of Coinbra-Frutesp’s entries of FCOJ.”

Plaintiff’s Motion at 28. It stated that Customs would continue to suspend liquidation “as

appropriate” of “FCOJ from Brazil,” because at the time of the notice of rescission the 1987
26

order was still in effect. Notice of Rescission, 70 Fed. Reg. 19,417. The fact that Commerce did

not issue a final determination in the changed circumstances review prior to rescission of the

review and the issue becoming moot after the revocation of the old order did not automatically

subject Coinbra-Frutesp to liability for duties under the “all others” rate of the old order. 

As a result of the fact that Customs’ Notice of Action does not establish legally binding

antidumping duty liability upon Coinbra-Frutesp under the old order and because the Notice of

Action never became part of the administrative record underlying Commerce’s investigation that

led to the inclusion of Coinbra-Frutesp into the new investigation, Coinbra-Frutesp was not

subject to the old antidumping order on FCOJ from Brazil when the petition for the new

investigation was filed. 

3

Commerce May Conduct a Successor-in-Interest Investigation to Decide Whether an Entity

Falls Within the Scope of the Antidumping Investigation

Louis Dreyfus contends that Commerce developed its successor-in-interest test to be able

to consider a company’s change in circumstances after an antidumping order is in place, but that

Commerce acted contrary to law by making its successor-in-interest determination after the order

to which it applied was revoked. Plaintiff’s Motion at 30-31 (citing Marine Harvest (Chile) S.A.

v. United States, 26 CIT 1295, 1310, 244 F. Supp. 2d 1364 (2002)). Plaintiff stresses that

Commerce in the past has only made successor-in-interest determinations in the context of orders

still in effect. Id. at 31 (citing Jia Farn Mfg., 17 CIT at 190). 

Defendant argues that the successor-in-interest determination was made in the context of

the new investigation, and that Commerce may “lawfully address successor-in-interest issues as
27

necessary to define and interpret the scope of an investigation and order.” Defendant’s Motion at

28. Defendant further notes that Plaintiff is not contesting the merits of the successor-in-interest

determination, but the time and context in which it was made. Id.

Commerce examined the successor-in-interest issue both in the context of the 1987 order

and in the new investigation. In its initiation notice Commerce stated that “the Department will

also examine the successor-in-interest issues for both Frutesp and Frutropic in the context of this

proceeding” and further noted that “should the Department find Louis Dreyfus or COINBRAFrutesp to be the successor-in-interest to these companies, the successor company will be

included as part of this proceeding.” Initiation of OJ AD Inv., 70 Fed. Reg. at 7,234. Plaintiff’s

petition for the changed circumstances review addresses the successor-in-interest issue in the

context of the old order advocating that Coinbra-Frutesp and/or Louis Dreyfus be considered the

successor-in-interest to Frutesp and Frutropic so as to remain revoked from AD liability under

the old order. LDCI CCR Request at 3-4, C.R. at 4-5. Given the subsequent change in Plaintiff’s

position regarding its successor-in-interest relationship with Frutesp and Frutropic and

Commerce’s rescission of the changed circumstances review it remained incumbent upon

Commerce to determine whether Plaintiff was the successor-in-interest for purposes of the new

investigation. This determination could have affected liability under the old order, but this issue

was moot due to the revocation of the 1987 order prior to the issuance of the final determination.

1987 FCOJ AD Order, 52 Fed. Reg. 16,426; Notice of Rescission, 70 Fed. Reg. 19,417; Final

Determination, 71 Fed. Reg. 2,183. In response to Plaintiff’s contention that Commerce is

prohibited from performing a successor-in-interest determination under the Tariff Act in these

circumstances, Commerce in its Issues and Decisions Memorandum stated that “while the Act
8

 Contrary to Plaintiff’s assertions, Valkia Ltd. v. United States, Slip Op. 04-71, 2004 CIT

LEXIS 66 (CIT June 18, 2004) does not stand for the proposition that the only exception to when

Commerce may utilize the successor-in-interest test outside an administrative review or changed

circumstances review is “where there is a change of circumstances during a LTFV investigation

that would justify use of the successor-in-interest test.” Plaintiff’s Motion at 31 n.21 (emphasis in

original). In fact, the case is illustrative of the fact that Commerce has discretion to apply the test

outside of its conventional use when the need arises.

28

does not expressly provide for this type of determination in an LTFV investigation, we find that

it does also not expressly prohibit it.” Decision Memo at 16, C.R. at 77. Coupled with Plaintiff’s

withdrawal of its petition for a changed circumstances review, this is sufficient to warrant

Commerce’s inclusion of the successor-in-interest issue in its final determination. Moreover,

Commerce’s scope determination merely affirmed Plaintiff’s stated position and long-standing

practice of not paying duties under the old order, in turn subjecting Louis Dreyfus to the new

investigation and subsequent order. Commerce has the discretion to define the scope of an

investigation and there is no law prohibiting it from applying its successor-in-interest test as a

mechanism to determine whether a certain producer should be included in the scope.8 Commerce

is entitled to deference in making its determination and acted consistently with its authority and

discretion in deciding that a successor-in-interest finding was an appropriate means of

determining the scope of the investigation and subsequent order. Chevron, 467 U.S. at 843. 

4

Commerce Did Not Expand the Scope of the Investigation in its Final Determination by

Including Coinbra-Frutesp Within the Scope

According to Plaintiff, Commerce lacked the authority to include Coinbra-Frutesp within

the scope of the final determination because the ITC excluded merchandise produced and

exported by Plaintiff from the scope of its preliminary injury determination. Plaintiff’s Motion at
29

33. Plaintiff contends that while Commerce may clarify the scope of an investigation, it is

statutorily prohibited from expanding the scope. Id. (citing Royal Bus. Mach., Inc. v. United

States, 1 CIT 80, 87, 507 F. Supp. 1007 (1980)). The principal assertion made by Plaintiff is that

Commerce is prohibited from expanding the scope “mid-stream” because (1) Commerce’s final

determination may only apply to merchandise that served as the basis for the ITC’s affirmative

preliminary injury determination and, (2) the scope at each stage of the investigation must remain

unchanged. Id. at 34.

Defendant argues that because the scope from the outset of the investigation

contemplated the inclusion of Coinbra-Frutesp, Commerce’s subsequent inclusion of Plaintiff

constituted a mere clarification of the scope and not an expansion. Defendant’s Motion at 31-32. 

Defendant furthermore distinguishes Plaintiff’s support for its proposition as relying exclusively

on cases in which there was a request to modify, as opposed to expand, the scope to include

merchandise not covered at the outset of the investigation. Id.

It is well established that Commerce must show caution in expanding the scope of an

investigation to cover merchandise that was either not included or specifically excluded at the

outset of an investigation. See, e.g., Smith Corona Corp. v. United States, 16 CIT 562, 565, 796

F. Supp. 1532 (1992). Plaintiff also provides persuasive authority that supports the notion that

Commerce may only include in its final determination merchandise that served as a basis for

ITC’s preliminary injury determination. Plaintiff’s Motion at 34 (citing 19 U.S.C. §§ 1677(25),

1673b(a)(1)). However, case law suggests that Commerce has broad authority to modify the

scope of an investigation so long as it is supported by substantial evidence and does not have a

prejudicial effect. Torrington Co. v. United States, 14 CIT 507, 511 n.3, 745 F. Supp. 718 (1990),
30

aff’d, 938 F.2d 1276 (Fed. Cir. 1991). Here, Frutropic, Frutesp and Coinbra-Frutesp were

specifically mentioned in the initiation notice as conditionally subject to the investigation and

were clearly producers and exporters of the “class or kind of merchandise” under investigation.

Initiation of OJ AD Inv., 70 Fed. Reg. at 7,234; 19 U.S.C. § 1677. In Commerce’s Issues and

Decision Memorandum, the Department noted that “[i]n both our notice of initiation and the

preliminary determination, we stated that we intended to make a successor-in-interest finding

with respect to Coinbra-Frutesp in order to determine whether its exports of FCOJM are subject

to this proceeding.” Decision Memo at 12, C.R. at 73. Commerce did not suspend liquidation of

entries of Coinbra-Frutesp’s FCOJM simply because it is prohibited from imposing provisional

measures on imports upon which the ITC did not make a preliminary injury determination. Id. at

19, C.R. at 80 (citing 19 U.S.C. § 1673). Plaintiff’s contention that the merchandise was

excluded ab initio is therefore without merit. Additionally, Commerce was not undertaking a

scope determination nor does the inclusion of a successor-in-interest to a party already within the

scope of the investigation act to expand it. Indeed, had Coinbra-Frutesp been excluded from the

scope in the final determination, this may have served to alter the scope. Plaintiff’s conditional

inclusion into the investigation did not cause prejudice, and although Plaintiff was not

specifically mentioned in the ITC’s preliminary determination, Coinbra-Frutesp was mentioned

in its final determination. Final ITC Injury Determination at IV-1. The inclusion of CoinbraFrutesp was therefore reflected in both agencies’ actions throughout the investigation, and the

scope of the investigation was not unlawfully expanded by the inclusion of Plaintiff. 
31

C

Coinbra-Frutesp Could Lawfully be Subject to the New Investigation Because it was

Revoked from the Old Order

Plaintiff argues that Commerce’s investigation was unlawfully commenced upon revoked

producers and exporters because producers that are revoked from an order remain conditionally

subject to the order from which they have been revoked. Plaintiff’s Motion at 36-37. Plaintiff

contends that the statutory scheme which imposes reinstatement of AD liability on revoked

producers that resume dumping subjects the revoked producers to conditional liability for the

life-span of the order. Id. (citing 19 U.S.C. § 1675(d); 19 C.F.R. § 351.222(b)(2)(i)(B)). 

Here, Commerce’s new investigation covered an expanded class of goods, namely

FCOJM and NFC. The statute to which Plaintiff refers merely authorizes the revocation of a

specific producer from an AD order but does not preclude Commerce from initiating a new

investigation where dumping is alleged in an expanded class of goods. Plaintiff contends that

“incorporating into a new investigation merchandise that is already subject to an antidumping

duty order, albeit revoked, is not a permissible remedial measure to determine whether there has

been a resumption of sales at less than fair value.” Plaintiff’s Motion at 37 (citing NTN Bearing,

13 CIT at 94). In opposition to Plaintiff’s analysis, Defendant-Intervenors note that Commerce’s

authority to reinstate revoked producers under Asahi Chem. Indus. Co. v. United States, 13 CIT

987, 990, 727 F. Supp. 625 (1989) remains limited because the court found that “the revocation

determination of Commerce quashes the effect of an antidumping order, notwithstanding the

language in the regulation implying that the revoked order may be reinstated.” DefendantIntervenors’ Motion at 37. Furthermore, Plaintiff’s argument that in Sebacic Acid from the

People’s Republic of China, Commerce concluded that a party that is conditionally revoked from
32

an order is still subject to the order. Plaintiff’s Motion at 39 (citing Sebacic Acid From the

People’s Republic of China: Preliminary Results of Changed Circumstances Review and Intent

To Reinstate the Antidumping Duty Order, 69 Fed. Reg. 68,879 (November 26, 2004) (“Sebacic

Acid”)). Plaintiff’s argument is not without merit, but fails to show that in the event that

dumping of an expanded group of merchandise recurs, Commerce is compelled to proceed

against the revoked producers by conducting a changed circumstances review and reinstating an

old order, as opposed to launching a new investigation. Here, Commerce acted reasonably by

initiating a new investigation. Plaintiff was not procedurally disadvantaged by a new proceeding

in lieu of a reinstatement proceeding because Commerce as part of a new investigation is

required to make an affirmative injury determination and impose a more liberal de minimis

margin standard. See Defendant-Intervenors’ Motion at 39. Furthermore, whereas Commerce in

Sebacic Acid experienced a short time between the revocation of the order and resumption of

dumping, here, the old order went into effect in 1987, leaving an extended gap between

revocations and resumption of dumping activity. Production, market and monetary conditions 

changed during that time and NFC, a new product, was added to the market since the old order

was put in place. As a result, reinstatement would not have adequately provided for the changes

in market conditions. In Sebacic Acid, however, Commerce reasonably subjected only one

producer to reexamination and reinstated that producer because extensive dumping was occurring

through a single exporter that was distorting the market. Here, almost all producers were

revoked from the old order and absent any statutory barriers to launching a new expanded

investigation, Commerce reasonably exercised its discretion in initiating an investigation

including revoked and excluded producers. 
33

V

Conclusion

For the foregoing reasons, Commerce’s final determination in Notice of Final

Determination of Sales at Less Than Fair Value and Affirmative Final Determination of Critical

Circumstances: Certain Orange Juice from Brazil, 71 Fed. Reg. 2,183 (January 13, 2006) is

affirmed. 

___/s/ Evan J. Wallach___

 Evan J. Wallach, Judge

Dated: June 19, 2007

New York, New York
UNITED STATES COURT OF INTERNATIONAL TRADE

____________________________________

:

LOUIS DREYFUS CITRUS INC., :

:

Plaintiff, :

: Before: WALLACH, Judge

v. : Court No.: 06-00122

:

UNITED STATES, :

:

Defendant, :

and :

 :

FLORIDA CITRUS MUTUAL et al., :

:

Defendant-Intervenors. :

____________________________________:

ORDER AND JUDGMENT

This case having come before the court upon the Rule 56.2 Motion for Judgment Upon

the Agency Record filed by Louis Dreyfus Citrus Inc. (“Plaintiff’s Motion”); the court having

reviewed all pleadings and papers on file herein, having heard oral argument by each party, and

after due deliberation, having reached a decision herein; now, in conformity with said decision, it

is hereby

ORDERED ADJUDGED AND DECREED that Plaintiffs’ Motion is DENIED; and it is

further

ORDERED ADJUDGED AND DECREED that the decision of the U.S. Department of

Commerce (“Commerce”) in Notice of Final Determination of Sales at Less Than Fair Value and

Affirmative Final Determination of Critical Circumstances: Certain Orange Juice from Brazil, 71

Fed. Reg. 2,183 (January 13, 2006) is hereby SUSTAINED; and it is further
ORDERED that all parties shall review the court’s Opinion in this matter and notify the

court in writing on or before Tuesday, June 26, 2007. whether any information contained in the

Opinion is confidential, identify any such information, and request its deletion from the public

version of the Opinion to be issued thereafter. The parties shall suggest alternative language for

any portions they wish deleted. If a party determines that no information needs to be deleted, that

party shall so notify the court in writing on or before June 26, 2007.

_/s/ Evan J. Wallach_______

 Evan J. Wallach, Judge

Dated: June 19, 2007

New York, New York