[Federal Register Volume 64, Number 66 (Wednesday, April 7, 1999)]
[Notices]
[Pages 16901-16904]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-8618]


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DEPARTMENT OF COMMERCE

International Trade Administration
[A-351-605]


Final Results of Expedited Sunset Review: Frozen Concentrated 
Orange Juice from Brazil

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

ACTION: Notice of Final Results of Expedited Sunset Review: Frozen 
Concentrated Orange Juice (FCOJ) from Brazil.

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SUMMARY: On December 2, 1998, the Department of Commerce (``the 
Department'') initiated a sunset review of the antidumping order on 
frozen concentrated orange juice from Brazil (63 FR 66527) pursuant to 
section 751(c) of the Tariff Act of 1930, as amended (``the Act''). On 
the basis of a notice of intent to participate and substantive comments 
filed on behalf of the domestic interested parties and inadequate 
response (in this case, no response) from respondent interested 
parties, the Department determined to conduct an expedited review. As a 
result of this review, the Department finds that revocation of the 
antidumping order would be likely to lead to continuation or recurrence 
of dumping at the levels indicated in the Final Results of the Review 
section of this notice.

FOR FURTHER INFORMATION CONTACT: Darla D. Brown or Melissa G. Skinner, 
Office of Policy for Import Administration, International Trade 
Administration, U.S. Department of Commerce, 14th Street and 
Constitution Avenue, NW, Washington, D.C. 20230; telephone: (202) 482-
3207 or (202) 482-1560, respectively.

EFFECTIVE DATE: April 7, 1999.

Statute and Regulations

    This review was conducted pursuant to sections 751(c) and 752 of 
the Act. The Department's procedures for the conduct of sunset reviews 
are set forth in Procedures for Conducting Five-year (``Sunset'') 
Reviews of Antidumping and Countervailing Duty Orders, 63 FR 13516 
(March 20, 1998) (``Sunset Regulations''). Guidance on methodological 
or analytical issues

[[Page 16902]]

relevant to the Department's conduct of sunset reviews is set forth in 
the Department's Policy Bulletin 98:3--Policies Regarding the Conduct 
of Five-year (``Sunset'') Reviews of Antidumping and Countervailing 
Duty Orders; Policy Bulletin, 63 FR 18871 (April 16, 1998) (``Sunset 
Policy Bulletin'').

Scope

    The merchandise subject to this antidumping order is frozen 
concentrated orange juice from Brazil. 1 Such merchandise is 
currently classifiable under Harmonized Tariff Schedule (HTS) item 
number 2009.11.00. The HTS item number is provided for convenience and 
Customs purposes only. The written description remains dispositive.
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    \1\  Pulpwash, a by-product of FCOJ which is composed of water-
extracted soluble orange solids, was found to be outside of the 
scope of the order (55 FR 26721, June 29, 1990).
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    This review covers imports from all manufacturers and exporters of 
frozen concentrated orange juice from Brazil, other than imports 
produced by Sucocitrico Cutrale, S.A., which was excluded from the 
order (52 FR 16426, May 5, 1987), as well as Cargill Citrus Ltda, 
Citrosuco Paulista S.A., Coopercitrus Industrial Frutesp S.A., and 
Montectirus Trading S.A., for which the order was revoked (56 FR 52510, 
October 21, 1991) and Frutropic, for which the order was also revoked 
(59 FR 53137, October 21, 1994).

Background

    On December 2, 1998, the Department initiated a sunset review of 
the antidumping order on frozen concentrated orange juice from Brazil 
(63 FR 66527), pursuant to section 751(c) of the Act. The Department 
received a Notice of Intent to Participate on behalf of Florida Citrus 
Mutual, Caulkins Indiantown Citrus Co., Citrus Belle, Citrus World, 
Inc., Orange Co. of Florida, Inc., Peace River Citrus Products, Inc., 
and Southern Gardens Citrus Processors Corp. (collectively ``the 
domestic interested parties'') on December 17, 1998, within the 
deadline specified in section 351.218(d)(1)(i) of the Sunset 
Regulations. Pursuant to 19 USC Sec. 1677(9)(G)(iii), the domestic 
interested parties claimed interested party status as a coalition 
representative of growers and processors of oranges and orange juice. 
In addition, Florida Citrus Mutual, a trade association representing 
growers of oranges used in the production of FCOJ, was the original 
petitioner in the antidumping duty investigation of FCOJ from Brazil. 
We received a complete substantive response from the domestic 
interested parties on January 4, 1999, within the 30-day deadline 
specified in the Sunset Regulations under section 351.218(d)(3)(i). We 
did not receive a substantive response from any respondent interested 
party to this proceeding. As a result, pursuant to 19 CFR 
351.218(e)(1)(ii)(C), the Department determined to conduct an 
expedited, 120-day, review of this order. On February 8, 1999, the 
domestic interested parties submitted a copy of the preliminary results 
of the latest administrative review of FCOJ from Brazil, covering the 
period between May 1, 1997 and April 30, 1998.2
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    \2\ See Frozen Concentrated Orange Juice from Brazil; 
Preliminary Results and Partial Rescission of Antidumping Duty 
Administrative Review, 64 FR 5767 (February 5, 1999).
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Determination

    In accordance with section 751(c)(1) of the Act, the Department 
conducted this review to determine whether revocation of the 
antidumping order would be likely to lead to continuation or recurrence 
of dumping. Section 752(c) of the Act provides that, in making this 
determination, the Department shall consider the weighted-average 
dumping margins determined in the investigation and subsequent reviews 
and the volume of imports of the subject merchandise for the period 
before and the period after the issuance of the antidumping order, and 
shall provide to the International Trade Commission (``the 
Commission'') the magnitude of the margin of dumping likely to prevail 
if the order is revoked.
    The Department's determinations concerning continuation or 
recurrence of dumping and the magnitude of the margin are discussed 
below. In addition, parties' comments with respect to continuation or 
recurrence of dumping and the magnitude of the margin are addressed 
within the respective sections below.

Continuation or Recurrence of Dumping

    Drawing on the guidance provided in the legislative history 
accompanying the Uruguay Round Agreements Act (``URAA''), specifically 
the Statement of Administrative Action (``the SAA''), H.R. Doc. No. 
103-316, vol. 1 (1994), the House Report, H.R. Rep. No. 103-826, pt. 1 
(1994), and the Senate Report, S. Rep. No. 103-412 (1994), the 
Department issued its Sunset Policy Bulletin providing guidance on 
methodological and analytical issues, including the bases for 
likelihood determinations. In its Sunset Policy Bulletin, the 
Department indicated that determinations of likelihood will be made on 
an order-wide basis (see section II.A.3). In addition, the Department 
indicated that normally it will determine that revocation of an 
antidumping order is likely to lead to continuation or recurrence of 
dumping where (a) dumping continued at any level above de minimis after 
the issuance of the order, (b) imports of the subject merchandise 
ceased after the issuance of the order, or (c) dumping was eliminated 
after the issuance of the order and import volumes for the subject 
merchandise declined significantly (see section II.A.3).
    In addition to guidance on likelihood provided in the Sunset Policy 
Bulletin and legislative history, section 751(c)(4)(B) of the Act 
provides that the Department shall determine that revocation of the 
order would be likely to lead to continuation or recurrence of dumping 
where a respondent interested party waives its participation in the 
sunset review. In the instant review, the Department did not receive a 
substantive response from any respondent interested party. Pursuant to 
section 351.218(d)(2)(iii) of the Sunset Regulations, this constitutes 
a waiver of participation.
    The antidumping order on FCOJ from Brazil was published in the 
Federal Register on May 5, 1987 (52 FR 16426). Since that time, the 
Department has conducted several administrative reviews.3 On 
October 21, 1991, the Department revoked the order with respect to 
imports produced by Cargill Citrus Ltda, Citrosuco Paulista S.A., 
Coopercitrus Industrial Frutesp S.A., and Montectirus Trading S.A. (56 
FR 52510, October 21, 1991). On October 21, 1994, the Department also 
revoked

[[Page 16903]]

the order for Frutropic (59 FR 53137, October 21, 1994 ). The order 
remains in effect for all other manufacturers and exporters of the 
subject merchandise.
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    \3\ See Frozen Concentrated Orange Juice from Brazil; Final 
Results of Antidumping Duty Administrative Review, 55 FR 26721 (June 
29, 1990); Frozen Concentrated Orange Juice from Brazil; Final 
Results and Termination in Part of Antidumping Duty Administrative 
Review, 55 FR 47502 (November 14, 1990); 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 (October 21, 1991); Frozen 
Concentrated Orange Juice from Brazil; Final Results and Termination 
in Part of Antidumping Duty Administrative Review, 57 FR 12910 
(April 14, 1992); Frozen Concentrated Orange Juice from Brazil; 
Final Results of Antidumping Duty Administrative Review and 
Revocation of Order in Part, 59 FR 53137 (October 21, 1994); Notice 
of Final Results of Antidumping Duty Administrative Review: Frozen 
Concentrated Orange Juice from Brazil, 62 FR 5798 (February 7, 
1997); Frozen Concentrated Orange Juice from Brazil; Final Results 
of Antidumping Duty Administrative Review, 62 FR 29328 (May 30, 
1997); Frozen Concentrated Orange Juice from Brazil; Final Results 
of Antidumping Duty Administrative Review, 63 FR 26145 (May 12, 
1998).
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    In its substantive response, the domestic interested parties argued 
that the actions taken by producers and exporters of FCOJ during the 
life of the order indicate that the likely effect of revocation of the 
order in this case would be that dumping of FCOJ would continue or 
resume, and that margins would increase (see Substantive Response of 
the Domestic Interested Parties, January 4, 1999, at 3). With respect 
to whether dumping continued at any level above de minimis after the 
issuance of the order, the domestic interested parties stated that 
while there have been determinations of de minimis or zero margins for 
certain producers in the past, in the current administrative review 
(covering entries during the period June 1997-May 1998), the Department 
has found enough evidence of sales in home or third country markets 
below cost of production of FCOJ to initiate a cost investigation (see 
Substantive Response of the Domestic Interested Parties, January 4, 
1999, at 4-5).
    With respect to whether imports of the subject merchandise ceased 
after the issuance of the order, the domestic interested parties 
maintained that since FCOJ is a commodity product, the fact that import 
volumes have risen or declined in absolute terms since the imposition 
of the order is of lesser probative value (see id.). They went on to 
argue that agricultural commodities, such as FCOJ, require additional 
analysis, due to the perishable nature of the article and its 
production cycles (see id.).
    In conclusion, the domestic interested parties argued that the 
Department should determine that there is a likelihood that dumping 
would continue were the order revoked because dumping margins have 
existed throughout the life of the order for some Brazilian exporters/
producers of FCOJ.
    As discussed in Section II.A.3 of the Sunset Policy Bulletin, the 
SAA at 890, and the House Report at 63-64, if companies continue 
dumping with the discipline of an order in place, the Department may 
reasonably infer that dumping would continue if the discipline were 
removed. A dumping margin above de minimis continues to exist for 
shipments of the subject merchandise from Branco Peres Citrus S.A. 
4
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    \4\ See Frozen Concentrated Orange Juice From Brazil: Final 
Results of Antidumping Administrative Review, 63 FR 26145 (May 12, 
1998).
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    Consistent with section 752(c) of the Act, the Department also 
considers the volume of imports before and after issuance of the order. 
The Department's statistics on imports of FCOJ from Brazil between 1985 
and 1998, demonstrate that in 1987, the year the order was imposed, 
imports of FCOJ fell sharply (from approximately 2.2 billion liters in 
1986 to approximately 2 million liters in 1987).5 Since the 
imposition of the order, imports of FCOJ have not reached the pre-order 
level; however, imports of subject merchandise have not consistently 
decreased either.
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    \5\ See U.S. Census Bureau Report IM146.
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    As noted above, in conducting its sunset reviews, the Department 
considers the weighted-average dumping margins and volume of imports 
when determining whether revocation of an antidumping duty order would 
lead to the continuation or recurrence of dumping. Based on this 
analysis, the Department finds that the existence of dumping margins 
above de minimis levels after the issuance of the order is highly 
probative of the likelihood of continuation or recurrence of dumping. 
Therefore, the Department finds no reason to consider the domestic 
interested parties' argument that additional analysis is required for 
antidumping orders on agricultural products. A deposit rate above a de 
minimis level continues in effect for exports of the subject 
merchandise by at least one known Brazilian manufacturer/exporter. 
Therefore, given that dumping has continued over the life of the order, 
respondent interested parties waived participation in this sunset 
review, and absent argument and evidence to the contrary, the 
Department determines that dumping is likely to continue if the order 
were revoked.

Magnitude of the Margin

    In the Sunset Policy Bulletin, the Department stated that it 
normally will provide to the Commission the margin that was determined 
in the final determination in the original investigation. Further, for 
companies not specifically investigated or for companies that did not 
begin shipping until after the order was issued, the Department 
normally will provide a margin based on the ``all others'' rate from 
the investigation. (See section II.B.1 of the Sunset Policy Bulletin.) 
Exceptions to this policy include the use of a more recently calculated 
margin, where appropriate, and consideration of duty absorption 
determinations. (See sections II.B.2 and 3 of the Sunset Policy 
Bulletin.)
    The Department, in its final determination of sales at less than 
fair value (``LTFV''), published a weighted-average dumping margin for 
one Brazilian producer/exporter, Citrosuco Paulista, of frozen 
concentrated orange juice (52 FR 8324, March 17, 1987). As discussed 
above, the order with respect to Citrosuco Paulista has been revoked. 
The final LTFV determination also contained an ``all others'' rate. We 
note that, to date, the Department has not issued any duty absorption 
findings in this case.
    In its substantive response, the domestic interested parties 
recommended that the Department deviate from its stated policy of 
selecting rates from the original investigation. Specifically, the 
domestic interested parties suggested that, because it is a commodity 
product, FCOJ should not be treated as other industrial products, where 
pricing may vary considerably from one producer to another. Rather, 
they suggested that current market conditions will dictate the level of 
dumping if there were no order. Therefore, the domestic interested 
parties requested that the Department apply the new, higher, dumping 
margin of 65.2 percent found in the preliminary results and partial 
rescission of the most recent antidumping duty administrative review 
(64 FR 5767, February 5, 1999).
    Because the results of the ongoing administrative review have not 
yet been finalized, the Department believes it is not appropriate to 
rely on those results for the purpose of this determination. Further, 
we note that, although FCOJ is a commodity product, the magnitude of 
any margin of dumping is determined based on factors other than market 
price alone, for example, cost of production. Therefore, absent 
persuasive evidence to the contrary, the Department continues to 
believe that as noted in the Sunset Policy Bulletin, the margins from 
the original investigation are the only calculated rates that reflect 
the behavior of exporters without the discipline of the order in place.
    The Department finds no reason to deviate from its stated policy of 
reporting the margins from the original investigation. The Department 
finds the margins calculated in the original investigation are 
probative of the behavior of Brazilian producers/exporters if the order 
were revoked as they are the only margins which reflect their actions 
absent the discipline of the order. Therefore, the Department will 
report to the Commission all others rate from the original 
investigation as

[[Page 16904]]

contained in the Final Results of Review section of this notice. The 
Department has not reported the calculated margin for Citrosuco 
Paulista, S.A., the only company with a calculated margin in the 
investigation, because the order with respect to Citrosuco Paulista has 
been revoked.

Final Results of Review

    As a result of this review, the Department finds that revocation of 
the antidumping order would likely lead to continuation or recurrence 
of dumping at the margins listed below:

------------------------------------------------------------------------
                                                                Margin
                   Manufacturer/exporter                      (percent)
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All Others.................................................         1.96
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    This notice 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 19 CFR 351.305 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 five-year (``sunset'') review and notice are in accordance 
with sections 751(c), 752, and 777(i)(1) of the Act.

    Dated: April 1, 1999.
Robert S. LaRussa,
Assistant Secretary for Import Administration.
[FR Doc. 99-8618 Filed 4-6-99; 8:45 am]
BILLING CODE 3510-DS-P