[Federal Register Volume 63, Number 91 (Tuesday, May 12, 1998)]
[Notices]
[Pages 26145-26147]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-12446]


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DEPARTMENT OF COMMERCE

International Trade Administration
[A-351-605]


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

AGENCY: Import Administration, International Trade Administration, 
Department of Commerce.

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SUMMARY: On January 14, 1998, the Department of Commerce published in 
the Federal Register the preliminary results of the administrative 
review of the antidumping duty order on frozen concentrated orange 
juice from Brazil. This review covers two producers/exporters, Branco 
Peres Citrus, S.A. and CTM Citrus, S.A. (formerly Citro-pectina). The 
Department terminated the review with respect to another firm, 
Citrovita S.A. See Frozen Concentrated Orange Juice from Brazil: 
Preliminary Results of Administrative Review; Termination in Part; and 
Intent Not to Revoke in Part, 63 FR 2202 (January 14, 1998). This 
review covers the period May 1, 1993, through April 30, 1994.
    We gave interested parties an opportunity to comment on our 
preliminary results. We have based our analysis on the comments 
received and have changed the results from those presented in the 
preliminary results of review.

EFFECTIVE DATE: May 12, 1998.

FOR FURTHER INFORMATION CONTACT: Fabian Rivelis or Irina Itkin, Office 
5, AD/CVD Enforcement, Group II, Import Administration, International 
Trade Administration, U.S. Department of Commerce, 14th Street and 
Constitution Avenue, NW, Washington, DC 20230; telephone: (202) 482-
3853 or (202) 482-0656, respectively.

SUPPLEMENTARY INFORMATION:

Background

    On January 14, 1998, the Department of Commerce (the Department) 
published in the Federal Register its preliminary results of the 1993-
1994 administrative review of the antidumping duty order on frozen 
concentrated orange juice (FCOJ) from Brazil (62 FR 2202). The 
Department has now completed this administrative review, in accordance 
with section 751(a) of the Tariff Act of 1930, as amended (the Act).

Applicable Statute and Regulations

    The Department is conducting this administrative review in 
accordance with section 751 of the Act. Unless otherwise indicated, all 
citations to the statute and to the Department's regulations are in 
reference to the provisions as they existed on December 31, 1994.

Scope of the Review

    The merchandise covered by this review is frozen concentrated 
orange juice from Brazil. The merchandise is currently classifiable 
under subheading 2009.11.00 of the Harmonized Tariff Schedule of the 
United States (HTSUS). The HTSUS subheading is provided for convenience 
and for customs purposes. The written description remains dispositive.

Analysis of Comments Received

    We gave interested parties an opportunity to comment on the 
preliminary results. We received comments only from Branco Peres Citrus 
S.A. (Branco Peres).
    Comment 1: Calculation of Comparison Market Commissions.
    For the preliminary results, the Department based foreign market 
value (FMV) on the applicable minimum export price 1 (MEP) 
as a third-country offer for sale where no contemporaneous third-
country sale existed. In cases where FMV was based on the MEP, we used 
the weighted average of the charges and adjustments reported for actual 
third-country sales.
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    \1\ During the period of review, the minimum export price was a 
floor price set by the Carteira do Comercio Exterior de Banco do 
Brasil (CACEX), the export department of the Bank of Brazil. Minimum 
export prices were based on the price of FCOJ on the New York Cotton 
Exchange. Because the price movements of FCOJ on the futures market 
are irregular, the minimum export price may have remained the same 
or may have changed several times within a month.
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    According to Branco Peres, the Department erred in calculating a 
single average commission amount and applying it to four separate MEPs 
when calculating FMV. Branco Peres asserts that this methodology 
understated the amount of the commission that it would have paid if the 
merchandise had actually been sold at the MEP. Specifically, Branco 
Peres maintains that the commission amount would have been based on a 
fixed commission percentage and would have been higher than the average 
commission used by the Department.
    Branco Peres asserts that the calculation of the single average 
commission amount is inconsistent with the calculation of U.S. 
commissions, which was based on the fixed commission percentage for 
each U.S. sale. Branco Peres maintains that the amount of both the 
third country and U.S. commissions should be exactly the same because, 
in every comparison, the U.S. price was exactly the same as the MEP. 
According to Branco Peres, the Department's use of inconsistent 
methodologies not only results in an unfair comparison, but also 
generates a dumping margin greater than de minimis. Branco Peres 
asserts that the Department should correct this error by deducting from 
FMV a commission amount based on the fixed commission percentage.
    Branco Peres also argues that the Department's use of a single 
average commission amount for the period of review (POR) violated long-
standing Department policy. Branco Peres states that the Department's 
practice in the 1993-1994 period for cases from Brazil, as illustrated 
in Notice of Final Determination of Sales at Less Than Fair Value: 
Certain Hot-Rolled Carbon Steel Flat Products from Brazil, 58 FR 37091, 
37093 (July 9, 1993), was to determine expenses on a monthly basis 
because Brazil's economy experienced hyper-inflation during that 
period. Therefore, Branco Peres asserts that the Department must 
calculate expenses based on the actual monthly expenses in effect for 
each MEP period.
    Nonetheless, Branco Peres argues that if the Department continues 
to use a single average commission, it should revise its calculation to 
include only those commissions related to sales which were 
contemporaneous with its U.S. sales, under the Department's usual 
price-to-price methodology for administrative reviews. Branco Peres 
notes that the Department calculated a single average commission based 
on the average commission expenses related to all third-country sales 
to the Netherlands, even though only four of those sales were 
contemporaneous with the U.S. sales in question.
    DOC Position: We agree. Our review of the record of this case shows 
that a fixed commission rate was in effect for all of Branco Peres' 
export sales during the POR and that the payment of a commission based 
on this rate is Branco Peres' normal business practice. Our calculation 
of the average POR commissions understated the commissions Branco Peres 
would have paid if it had made the sale at the MEP. Accordingly, we 
have calculated commissions by applying the

[[Page 26146]]

commission rate to the MEP. This calculation is consistent with our 
calculations for Branco Peres in the 1992-1993 review, where the MEP 
was also used as an offer for sale to calculate FMV. See Notice of 
Final Results of Antidumping Duty Administrative Review: Frozen 
Concentrated Orange Juice from Brazil, 62 FR 5798 (February 7, 1997).
    Comment 2: Revocation of the Antidumping Duty Order With Respect to 
Branco Peres.
    Branco Peres argues that, if the Department recalculates its 
comparison market commissions, the Department should revoke the 
antidumping duty order against it because its margin in this review 
(1993-1994) is de minimis. Branco Peres notes that its margin in the 
1995-1996 review was zero, and no review was conducted in the 
intervening year. That review was terminated because both Branco Peres 
and CTM withdrew their requests for review and there were no other 
requests for review (see Frozen Concentrated Orange Juice from Brazil: 
Termination of Antidumping Administrative Review, 60 FR 53163 (October 
12, 1995)). Branco Peres cites section 351.222(d) of the Department's 
new regulations, published on May 19, 1997, which permits revocation 
after the Department has conducted reviews in the first and third years 
of a three-year period and has found zero or de minimis dumping 
margins. Branco Peres states that the Department's rationale not to 
revoke it from the order after the 1995-1996 review period no longer 
applies because the new regulations are now in effect.
    Branco Peres asserts that it is similarly entitled to revocation 
under section 353.25(a) of the Department's old regulations, because 
that regulation required only that the company under review has ``sold 
the merchandise at not less than foreign market value for a period of 
at least three consecutive years.'' Branco Peres claims that it meets 
this requirement because in the intervening year its entries were 
liquidated at a zero duty deposit rate. Branco Peres asserts that 
revocation now does not contradict the Department's final results in 
the 1995-1996 review, where the Department stated that it had denied 
revocation for a respondent which had withdrawn from the second period 
of review. Branco Peres notes that in that case the Department could 
not conclude that the respondent in question had exported the 
merchandise at not less than fair value during the entire three year 
period because, in the intervening year, it had entered merchandise at 
deposit rates that were greater than de minimis. See 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 FR 52510, 52512 (October 21, 1991).
    DOC Position: We disagree. The new regulations cited by Branco 
Peres did not take effect until June 19, 1997, well after the 
initiation of the 1995-1996 review. In addition, although it does not 
affect the result here, we note that the instant review was initiated 
prior to the effective date of the new regulations. As stated in the 
final results of the 1995-1996 review, the Department can conclude that 
a producer has sold merchandise at not less than fair value for three 
consecutive years, within the meaning of 19 CFR 353.25(a), only 
pursuant to administrative reviews actually conducted for each of the 
three years. See Frozen Concentrated Orange Juice from Brazil: Final 
Results of Antidumping Duty Administrative Review, 62 FR 29328 (May 30, 
1997) (1995-1996 FCOJ Review). Because no administrative review was 
conducted for the intervening 1994-1995 period, we cannot make this 
conclusion. Accordingly, we have determined not to revoke the 
antidumping duty order with respect to Branco Peres.

Final Results of Review

    As a result of the comments received we have revised our 
preliminary results and determine that the following margins exist for 
the period May 1, 1993, through April 30, 1994:

------------------------------------------------------------------------
                                                                Percent 
           Manufacturer/exporter              Review period      margin 
------------------------------------------------------------------------
Branco Peres..............................     5/1/93-4/30/94       0.18
CTM Citrus S.A............................     5/1/93-4/30/94       0.00
------------------------------------------------------------------------

    The Department has not revoked the antidumping duty order with 
respect to either Branco Peres or CTM Citrus S.A. (CTM) because neither 
Branco Peres nor CTM has demonstrated three consecutive years of sales 
at not less than FMV.
    The Department shall determine, and the Customs Service shall 
assess, antidumping duties on all appropriate entries. Individual 
differences between United States Price and FMV may vary from the 
percentages stated above. We have calculated a company-specific duty 
assessment rate based on the ratio of the total amount of antidumping 
duties calculated for the examined sales made during the POR to the 
total value of subject merchandise entered during the POR. The rate 
will be assessed uniformly on all entries of that particular company 
made during the POR. The Department will issue appraisement 
instructions directly to the Customs Service.
    Furthermore, the following deposit requirements will be effective 
for all shipments of FCOJ from Brazil, entered, or withdrawn from 
warehouse, for consumption on or after the publication date of the 
final results of this administrative review, as provided by section 
751(a)(1) of the Act: (1) Because a subsequent administrative review of 
Branco Peres has been completed, the cash deposit rate for this company 
will continue to be the rate calculated in that administrative review 
(see 1995-1996 FCOJ Review); (2) the cash deposit rate for CTM will be 
the calculated margin in the final results of this administrative 
review, as stated above; (3) for previously reviewed or investigated 
companies not listed above, the cash deposit rate will continue to be 
the company-specific rate published for the most recent period; (4) if 
the exporter is not a firm covered in this review, a prior review, or 
the original less-than-fair-value (LTFV) investigation, but the 
manufacturer is, the cash deposit rate will be the rate established for 
the most recent period for the manufacturer of the merchandise; and (5) 
for all other producers and/or exporters of this merchandise, the cash 
deposit rate will be 1.96 percent, the ``all others'' rate from the 
LTFV investigation. These cash deposit requirements, when imposed, 
shall remain in effect until publication of the final results of the 
next administrative review.
    This notice serves as a final reminder to importers of their 
responsibility under 19 CFR 353.26 to file a certificate regarding the 
reimbursement of antidumping duties prior to liquidation of the 
relevant entries during this review period. Failure to comply with this 
requirement could result in the Secretary's presumption that

[[Page 26147]]

reimbursement of antidumping duties occurred and the subsequent 
assessment of double antidumping duties.
    This notice also serves as the only reminder to parties subject to 
administrative protective order (APO) of their responsibility 
concerning the disposition of proprietary information disclosed under 
APO in accordance with section 353.34(d) of the Department's 
regulations. Timely notification of return/destruction of APO materials 
or conversion to judicial protective order is hereby requested. Failure 
to comply with the regulations and the terms of an APO is a 
sanctionable violation.
    This administrative review and notice are in accordance with 
section 751(a)(1)(B) of the Act (19 U.S.C. 1675(a)(1)) and 19 CFR 
353.22.

    Dated: May 5, 1998.
Robert S. LaRussa,
Assistant Secretary for Import Administration.
[FR Doc. 98-12446 Filed 5-11-98; 8:45 am]
BILLING CODE 3510-DS-P