United States Court of Appeals for the Federal Circuit 

2008-1102 

FLORIDA CITRUS MUTUAL, 

A. DUDA & SONS (doing business as Citrus Belle), CITRUS WORLD, INC., 

and SOUTHERN GARDENS CITRUS PROCESSING CORPORATION 

(doing business as Southern Gardens), 

 Plaintiffs-Appellants, 

v. 

UNITED STATES, 

 Defendant-Appellee, 

and 

FISCHER S/A AGROINDUSTRIA, 

 Defendant-Appellee, 

and 

CITRUS PRODUCTS, INC. and SUCOCITRICO CUTRALE LTDA, 

 Defendants-Appellees. 

Matthew T. McGrath, Barnes, Richardson & Colburn, of Washington, DC, argued 

for plaintiffs-appellants. With him on the brief was Stephen W. Brophy. 

Michael J. Dierberg, Trial Attorney, Commercial Litigation Branch, Civil Division, 

United States Department of Justice, of Washington, DC, argued for defendant-appellee 

United States. With him on the brief were Jeffrey S. Bucholtz, Acting Assistant Attorney 

General; Jeanne E. Davidson, Director; and Franklin E. White, Jr., Assistant Director. 

Of counsel on the brief was Mildred E. Steward, Senior Attorney, Office of Chief 

Counsel for Import Administration, United States Department of Commerce, of 

Washington, DC. Of counsel was Mykhaylo A. Gryzlov. 

Robert G. Kalik, Kalik Lewin, of Bethesda, Maryland, for defendant-appellee 

Fischer S/A Agroindustria. With him on the brief was Brenna S. Lenchak. 

Christopher Dunn, Heller Ehrman LLP, of Washington, DC, for defendantsappellees Citrus Products, Inc., and Sucocitrico Cutrale Ltda. With him on the brief was 

Valerie S. Ellis. 

Appealed from: United States Court of International Trade 

Judge Evan J. Wallach 
United States Court of Appeals for the Federal Circuit 2008-1102 

FLORIDA CITRUS MUTUAL, 

A. DUDA & SONS (doing business as Citrus Belle), CITRUS WORLD, INC., 

and SOUTHERN GARDENS CITRUS PROCESSING CORPORATION 

(doing business as Southern Gardens), 

Plaintiffs-Appellants, 

v. 

UNITED STATES, 

Defendant-Appellee, 

and 

FISCHER S/A AGROINDUSTRIA, 

Defendant-Appellee, 

and 

CITRUS PRODUCTS, INC. and SUCOCITRICO CUTRALE LTDA, 

Defendants-Appellees. 

 Appeal from the United States Court of International Trade in case no. 

 06-00114, Judge Evan J. Wallach. 

__________________________ 

DECIDED: December 18, 2008 

__________________________ 

Before MICHEL, Chief Judge, and MOORE, Circuit Judge, O’GRADY, District Judge.

*

 *

 Honorable Liam O’Grady, District Judge, United States District Court for 

the Eastern District of Virginia, sitting by designation. 
O’GRADY, District Judge. 

The question presented in this appeal is whether the Department of Commerce 

(“Commerce”) reasonably interpreted ambiguous language in 19 U.S.C. 

§ 1677a(c)(2)(A). This language allows a reduction in the U.S. price of imported 

merchandise for “United States import duties” before that domestic price is compared 

against the foreign price in an antidumping analysis. The court finds Commerce’s 

interpretation reasonable because it accords with the statutory language and accurately 

reflects the overall duty costs to importers. Accordingly, we affirm the decision of the 

Court of International Trade. 

I. BACKGROUND 

A. Proceedings Before The Department of Commerce. 

 Appellants are four U.S. orange juice producers, Florida Citrus Mutual, A. Duda & 

Sons, Citrus World, Inc., and Southern Gardens Citrus Processing Corp., collectively 

referred to as “FCM.” Appellees are Brazilian orange juice producers: Citrosuco 

Paulista S.A. d/b/a Fischer S/A-Agroindustria (“Fischer”), and Citrus Products, Inc. and 

Sucocitrico Cutrale SA (“Cutrale”). 

On December 27, 2004, FCM filed an antidumping petition with the Department 

of Commerce and the U.S. International Trade Commission (“ITC”), alleging that sales 

of two types of frozen orange juice from Brazil were materially injuring the domestic 

industry. On February 11, 2005, Commerce launched an investigation. It selected 

Fischer, Cutrale, and Montecitrus Industria e Comercio Limitada (“Montecitrus”)—the 

 

2008-1102 2
three largest Brazilian orange juice importers—as mandatory respondents in the 

investigation. On March 7, 2005, Commerce distributed the standard antidumping duty 

questionnaire to the Brazilian companies. Section C of the questionnaire asked the 

respondents to report the “unit amount of any customs duty paid on the subject 

merchandise.” Fischer and Cutrale reported figures for “import duties” that included 

refunds the companies had received as part of U.S. “drawback” programs. These 

drawback programs allow foreign companies to receive refunds of duties paid on 

merchandise that is exported, or destroyed, within three years of entry into the United 

States. Over FCM’s objection, Commerce calculated the “constructed export price” 

using net import duties, which were the duties paid to Customs minus the drawback 

refunds as reported by Fischer and Cutrale. Fischer and Cutrale argued that the 

drawback refunds should be used to offset U.S. duties paid as that amount more 

accurately reflected the actual duties paid by the companies on the imported orange 

juice. 

 Whether Fischer and Cutrale were entitled to the proposed offset for drawback 

refunds was an issue of first impression for Commerce. Commerce performed an 

antidumping analysis—comparing export price or constructed export price in the United 

States to the normal value in the foreign market.1

 In its Final Determination, Commerce 

 1

 Under the statute the terms “export price” and “constructed export price” 

are defined as follows: 

(a) Export price. The term “export price” means the price at which the subject 

merchandise is first sold (or agreed to be sold) before the date of importation by 

the producer or exporter of the subject merchandise outside of the United States 

to an unaffiliated purchaser in the United States or to an unaffiliated purchaser 

for exportation to the United States, as adjusted under subsection (c) of this 

section. 

2008-1102 3
concluded that the applicable statute, 19 U.S.C. § 1677a(c)(2)(A), allowed the offset for 

drawback refunds. It therefore calculated a constructed export price for Fischer and 

Cutrale by reducing the U.S. price of the orange juice by the net duties paid. In its 

Issues and Decision Memorandum, Commerce explained that calculating net import 

duties would “encompass the net duty experience of the respondents.” Commerce 

further reasoned that the calculation of net import duties was consistent with the 

statutory mandate to reduce U.S. price by all movement expenses incident to importing 

the goods into the United States. It concluded that allowing the offset for drawback 

refunds provided a fair comparison to normal value of the orange juice in the Brazilian 

market. 

On February 2, 2006, FCM filed a ministerial error allegation, which asserted that 

Commerce had erred in calculating dumping margins for Cutrale and Fischer in its Final 

Determination. On February 21, 2006, Commerce published an Amended Final 

Determination, in which it corrected various ministerial errors and made minor 

adjustments to its original calculations, but rejected FCM’s challenge to its price 

calculation methodology. On March 9, 2006, Commerce published its antidumping 

order as Antidumping Duty Order: Certain Orange Juice from Brazil, 71 Fed. Reg. 

12,183 (Dep’t of Commerce Mar. 9, 2006). 

 

(b) Constructed export price. The term “constructed export price” means the 

price at which the subject merchandise is first sold (or agreed to be sold) in the 

United States before or after the date of importation by or for the account of the 

producer or exporter of such merchandise or by a seller affiliated with the 

producer or exporter, to a purchaser not affiliated with the producer or exporter, 

as adjusted under subsections (c) and (d) of this section. 

19 U.S.C. § 1677a(a)-(b).

2008-1102 4
B. Proceedings Before the Court of International Trade. 

 On April 6, 2006, FCM timely filed a civil action in the U.S. Court of International 

Trade. On May 23, 2006 and June 6, 2006, respectively, the court granted Fischer and 

Cutrale’s motions to intervene as interested parties. The court held oral argument on 

July 25, 2007, wherein FCM asserted that Commerce’s determination to adjust the U.S. 

price by the net import duties (allowing the drawback refund offset) was improper. FCM 

also argued that Commerce employed improper methodology for calculating the net 

import duties. 

The court rejected FCM’s arguments in their entirety. In Florida Citrus Mutual v. 

United States, 515 F. Supp. 2d 1324 (Ct. Int’l Trade 2007), the court found that 

Commerce had reasonably interpreted “United States import duties” to mean net import 

duties, and thus sustained Commerce’s determination. It reasoned that Commerce’s 

construction of the statute reflected “a policy decision which was made within the 

statutory scheme and is well within the bounds of the agency’s discretion in accordance 

with Chevron.” Id. at 1332. The court rejected FCM’s argument that because the 

drawback refunds came later in time they could not be “incident to bringing the subject 

merchandise” into the United States, reasoning that the refunds should be considered 

part of the movement expenses enumerated by the statute. Id. at 1334. The court 

concluded that Commerce’s methodology produced an accurate U.S. price in accord 

with the statute. 

II. DISCUSSION 

A. Jurisdiction.

2008-1102 5
 FCM appeals from the decision of the U.S. Court of International Trade entered 

on September 13, 2007. The Court of International Trade exercised subject matter 

jurisdiction under 28 U.S.C. § 1581(c). Appellants filed a timely notice of appeal on 

November 9, 2007. This court has jurisdiction over the appeal under 28 U.S.C. § 

1295(a)(5). 

B. Standard of Review. 

 “We review de novo whether Commerce’s interpretation of a governing statutory 

provision is in accordance with law, but we do so within the framework established by 

Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).” 

Agro Dutch Indus. Ltd. v. United States, 508 F.3d 1024, 1029-30 (Fed. Cir. 2007). 

“Under Chevron, a reviewing court must first ask ‘whether Congress has directly spoken 

to the precise question at issue.’” FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 

120, 132 (2000) (quoting Chevron, 467 U.S. at 842). “If Congress has done so, the 

inquiry is at an end; the court ‘must give effect to the unambiguously expressed intent of 

Congress.’” Id. at 132 (quoting Chevron, 467 U.S. at 843). “In the absence of clear 

direction from the statute,” we must proceed to “ask whether there is ambiguous 

statutory language that might authorize the agency to fill a statutory gap,” and “whether 

Commerce’s interpretation of ambiguous statutory language is based on a permissible 

interpretation of the statute.” Agro Dutch Indus., 508 F.3d at 1030 (internal quotation 

marks omitted); see also Chevron, 467 U.S. at 843 (“[I]f the statute is silent or 

ambiguous with respect to the specific issue, the question for the court is whether the 

agency’s answer is based on a permissible construction of the statute.”). Ultimately, 

“this court will uphold Commerce’s determinations, findings, and conclusions unless 

2008-1102 6
they are ‘unsupported by substantial evidence on the record, or otherwise not in 

accordance with the law.’” Wheatland Tube Co. v. United States, 495 F.3d 1355, 1359 

(Fed. Cir. 2007) (quoting 19 U.S.C. § 1516a(b)(1)(B)(i)). 

C. Analysis. 

1. Commerce’s Decision To Account For Drawback Refunds Was Reasonable. 

The drawback program permits importers to claim reimbursement of 99 percent 

of U.S. duties paid on imports when “commercially interchangeable” merchandise is 

either (1) exported from the United States, or (2) destroyed within three years of the 

date of importation. 19 C.F.R. § 191.32(a) (2008); see generally 19 U.S.C. § 1313. The 

Code of Federal Regulations defines “drawback” as “the refund or remission, in whole 

or in part, of a customs duty, fee or internal revenue tax which was imposed on 

imported merchandise under Federal law because of its importation.” 19 C.F.R. 

§ 191.2(i). Thus, drawbacks allow import duties, which are levied on goods imported 

into the United States for sale, to be refunded when substituted goods are exported, 

destroyed, or used in manufacturing instead of being sold in the United States. As a 

practical matter, U.S. Customs and Border Protection receives a deposit of the duties 

due from the importer, which is later adjusted if the importer exercises its drawback 

rights in a timely fashion. 

Fischer and Cutrale claimed and received drawback refunds under two statutory 

provisions: 19 U.S.C. §§ 1313(b) and 1313(j)(2). Cutrale claimed refunds under Section 

1313(j)(2), which allows a “substitution drawback.” Under this provision, an importer 

may receive duty refunds if it then exports from the United States “commercially 

interchangeable” merchandise within three years. 19 U.S.C. § 1313(j)(2). Fischer 

2008-1102 7
claimed refunds under Section 1313(b), which allows a “manufacturing substitution 

drawback.” Id. § 1313(b). Under this provision, if the importer uses the substituted 

merchandise in further manufacturing or production in the United States, the importer 

becomes eligible for “an amount of drawback equal to that which would have been 

allowable had the merchandise used therein been imported.” Id. The importer may 

claim the refund after the “exportation or destruction” of the substituted merchandise. 

19 C.F.R. § 191.22(a). Before Commerce, Fischer asserted that adding oils and 

essences to its orange juice constituted a further manufacturing process in the United 

States, which qualified it for “manufacturing substitution drawback” refunds under 

Section 1313(b). 

Dumping is the sale of foreign goods in the United States at less than fair value. 

See 19 U.S.C. § 1677(34). To determine whether dumping occurred, Commerce 

compares the “export price” or “constructed export price” with the normal price of the 

goods in the foreign market. Generally under U.S. antidumping laws, constructed 

export price is the price at which the goods under investigation are sold, or agreed to be 

sold, for exportation to the United States to the first unaffiliated purchaser in the United 

States. See 19 U.S.C. § 1677a(b). Commerce adjusts this price in accordance with 

statutory factors to achieve “a fair ‘apples-to-apples’ comparison” between U.S. price 

and foreign market value “at a similar point in the chain of commerce.” Torrington Co. v. 

United States, 68 F.3d 1347, 1352 (Fed. Cir. 1995). If the adjusted price of the goods is 

less than the normal value of the goods in the foreign market, and there is a finding of 

material injury, Commerce will issue an affirmative finding of dumping. Agro Dutch

Indus., 508 F.3d at 1028 (citing 19 U.S.C. §§ 1673-1673(d)). Commerce will issue an 

2008-1102 8
antidumping order that imposes additional dumping duties equal to “the amount by 

which the normal value exceeds the export price or constructed export price of the 

subject merchandise.” 19 U.S.C. § 1677(35)(A). 

 Section 1677a(c)(2)(A) requires that U.S. price shall be reduced by: 

the amount, if any, included in such price, attributable to any additional costs, 

charges, or expenses, and United States import duties, which are incident to 

bringing the subject merchandise from the original place of shipment in the 

exporting country to the place of delivery in the United States. 

To achieve this “apples-to-apples” comparison the agency should adjust the U.S. 

price by subtracting the “United States import duties” paid. Fischer and Cutrale 

argued—and Commerce agreed—that “United States import duties” should be 

calculated by including an offset for the drawback refunds each company claimed. 

Because this offset lowered the amount of import duties paid, and that amount was 

subtracted from the price, the offset raised the constructed export price. A higher price 

makes it less likely that Commerce will make a finding of dumping because dumping is 

present only where the adjusted price is less than the normal value of the goods in the 

foreign market. See Agro Dutch Indus., 508 F.3d at 1028. 

 The statute neither defines “import duties” nor specifies whether “import duties” 

should include the net import duties (taking into account drawback refunds) or gross 

duties. The statute therefore is ambiguous, and Commerce was entitled to supply its 

own reasonable interpretation. See Agro Dutch Indus., 508 F.3d at 1030; see also

Wheatland Tube, 495 F.3d at 1359-60 (holding that the term “United States import 

duties” in Section 1677a(c)(2)(A) is ambiguous). We now must ask “whether 

Commerce’s interpretation of ambiguous statutory language is based on a permissible 

2008-1102 9
interpretation of the statute.” FAG Italia S.p.A. v. United States, 291 F.3d 806, 815 

(Fed. Cir. 2002). 

 We find Commerce’s interpretation reasonable because it accords with the 

statutory language and accurately reflects the overall duty costs to importers. The 

statute requires that the price be reduced by the “amount attributable to any . . . United 

States import duties, which are incident to bringing the subject merchandise . . . to the 

place of delivery in the United States.” 19 U.S.C. § 1677a(c)(2)(A). First, rather than 

“United States import duties,” which could mean either gross or net import duties, 

Congress could have used the terms “gross import duties,” or perhaps “duties assessed 

at the time the subject merchandise is imported.” Either of those phrases would have 

foreclosed the interpretation that Commerce adopted here. But Congress did not, 

instead opting for the unqualified phrase “import duties.” Second, drawback refunds are 

“attributable to” import duties because “attributable to” describes a loose associative 

relationship. See The American Heritage Dictionary of the English Language 85 (1976) 

(defining “attribute” as “to regard or assign as belonging to or resulting from someone or 

something; ascribe”). Because drawback refunds cannot be obtained without the 

foreign company first importing merchandise and being assessed import duties on that 

merchandise, the duties are part and parcel of the import duty regime. Furthermore, 

Congress’ use of the inclusive term “any” in front of “import duties” indicates that the 

adjustment should account for the entire universe of import duties. Finally, drawback 

refunds also are “incident to bringing the subject merchandise . . . into the United 

States.” “Incident to” commonly means “contingent upon or related to something else.” 

Id. at 664. Drawback refunds are contingent upon and related to importing merchandise 

2008-1102 10
because they cannot be claimed without first importing merchandise and paying the 

duties to Customs. In sum, the statute is broad enough to allow the offset and 

Commerce’s interpretation was reasonable. 

 Moreover, as noted above, the purpose of adjusting U.S. price by movement 

costs is to enable a fair “apples-to-apples” comparison between foreign and domestic 

price. This goal is furthered by inclusion of all import expenses—including the offset for 

refunds—because the resulting amount accurately represents the importer’s overall 

duty liability. Appellants insist that drawback refunds cannot be considered because 

such refunds are not assessed on goods at the time of importation. But the statute 

does not contain any such requirement. Indeed, appellants’ interpretation would not 

reflect the total amount of duties the importer actually pays on the imported goods 

because the “import duties” amount would not include duties that were later refunded. 

In accord with its statutory mandate to calculate the most accurate U.S. price for 

comparison with foreign value, Commerce reasonably discounted import duties for 

which the companies ultimately were reimbursed. This decision was consistent with the 

statutory scheme and well within Commerce’s authority under Chevron. 

2. Commerce’s Method Of Calculating Net Duties Was Reasonable. 

Appellants also contend that Commerce’s methodology in calculating net duties 

was flawed for two reasons: (1) there is no proof that the net duties or refunds were 

“passed through,” i.e., reflected in the price paid by U.S. purchasers; and (2) Commerce 

counted duty refunds received by Cutrale during the period of investigation on orange 

juice that entered the U.S. before the period of investigation. Under the law of this 

court, “Commerce is the ‘master of antidumping law,’ and reviewing courts must accord 

2008-1102 11
deference to the agency in its selection and development of proper methodologies.” 

Thai Pineapple Pub. Co. v. United States, 187 F.3d 1362, 1365 (Fed. Cir. 1999) 

(citations omitted). Thus, Commerce’s methodologies for calculating dumping margin 

are “presumptively correct.” Id.

 Section 1677a(c)(2)(A) requires that an adjustment to price be based upon 

import duties that are “included in such price.” Appellants argue that this language 

requires foreign producers to adduce evidence demonstrating that the drawback 

refunds actually affected the price paid by U.S. purchasers. Commerce reasonably 

concluded that such proof is not required. In Daewoo Electronics Co. v. International

Union, we interpreted similar language in Section 1677a(d)(1)(C), which allowed a price 

adjustment “only to the extent that such taxes are added to or included in the price of 

. . . merchandise.” 6 F.3d 1511, 1514 (Fed. Cir. 1993). We held that where Commerce 

adjusts domestic prices for excise taxes not charged on exports, it need not inquire as 

to whether those taxes are “passed through” to the customer. “The statutory language 

does not mandate that [the International Trade Administration] look at the effect of the 

tax on consumers rather than on the [foreign] company.” Id. at 1517. Likewise here, 

Commerce need not analyze whether taxes are “passed through” to U.S. customers. 

As appellants admit, the statute contains no provision mandating such an inquiry.2

 

Appellants’ second challenge is that Commerce erroneously counted drawback 

refunds that Cutrale received for merchandise imported prior to the period of 

 2

 As noted by the Court of International Trade, when defining the term “price 

adjustment” in its regulations, Commerce commented that “price adjustments include 

such things as discounts and rebates that do not constitute part of the net price actually 

paid by a customer.” Florida Citrus, 515 F. Supp. 2d at 1333 (citing Antidumping 

Duties: Countervailing Duties, 62 Fed. Reg. 27,296, 27,344 (May 19, 1997)). 

2008-1102 12
2008-1102 13

investigation. The statute requires adjustments for “costs, charges, expenses and 

United States import duties,” but, as explained above, it does not restrict these 

adjustments only to expenses incurred at the time of importation. Under Sections 

1313(b) and 1313(j)(2) importers have up to three years to claim drawback refunds, 

even though the import duties are paid to Customs at the time of importation. Because 

of this three-year lag, it is inherent that some of the claimed refunds will pertain to 

merchandise actually imported prior to the period of investigation.3

 In light of the 

discretion vested in Commerce to interpret the antidumping statute, it was reasonable to 

allow an offset for drawback refunds claimed for merchandise imported prior to the 

period of investigation. 

III. CONCLUSION 

 For the foregoing reasons, we affirm the decision of the Court of International 

Trade. Each party shall bear its own costs. 

AFFIRMED.

 3

 This could result in a partial wash, as foreign companies presumably will 

import merchandise during the period of investigation for which they might claim refunds 

after the period ends—too late to receive any adjustment in price.