[Federal Register Volume 64, Number 154 (Wednesday, August 11, 1999)]
[Notices]
[Pages 43650-43659]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-20738]


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DEPARTMENT OF COMMERCE

International Trade Administration
[A-351-605]


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

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

SUMMARY: On February 5, 1999, the Department of Commerce published in 
the Federal Register the preliminary results of the administrative 
review of

[[Page 43651]]

the antidumping duty order on frozen concentrated orange juice from 
Brazil. This review covers the U.S. sales and/or entries of four 
manufacturers/exporters. We are rescinding this review with respect to 
two additional companies. This is the eleventh period of review, 
covering May 1, 1997, through April 30, 1998.
    We gave interested parties an opportunity to comment on our 
preliminary results. We have considered the comments we received in our 
analysis and have changed the results from those presented in the 
preliminary results of review.

EFFECTIVE DATE: August 11, 1999.

FOR FURTHER INFORMATION CONTACT: Sergio Gonzalez or Shawn Thompson, 
Office of AD/CVD Enforcement, DAS Group I, Import Administration, 
International Trade Administration, U.S. Department of Commerce, 14th 
Street and Constitution Avenue, NW, Washington, DC 20230; telephone 
(202) 482-1779 or (202) 482-1776, respectively.

APPLICABLE STATUTE AND REGULATIONS: Unless otherwise indicated, all 
citations to the Tariff Act of 1930, as amended (the Act), are 
references to the provisions effective January 1, 1995, the effective 
date of the amendments made to the Act by the Uruguay Round Agreements 
Act (URAA). In addition, unless otherwise indicated, all citations to 
the Department of Commerce's (the Department's) regulations are to the 
regulations at 19 CFR Part 351 (1998).

SUPPLEMENTARY INFORMATION:

Background

    On February 5, 1999, the Department published in the Federal 
Register its preliminary results of the 1997-1998 administrative review 
of the antidumping duty order on frozen concentrated orange juice 
(FCOJ) from Brazil (64 FR 5767). The Department has now completed this 
administrative review, in accordance with section 751(a) of the Act.

Scope of the Review

    The merchandise covered by this review is FCOJ from Brazil. The 
merchandise is currently classifiable under item 2009.11.00 of the 
Harmonized Tariff Schedule of the United States (HTSUS). The HTSUS item 
number is provided for convenience and for customs purposes. The 
Department's written description remains dispositive.

Partial Rescission of Review

    As noted in the preliminary results, in July 1998, two companies to 
whom the Department issued the questionnaire, CTM Citrus S.A. (CTM) and 
Sucorrico S.A. (Sucorrico), informed the Department that they had no 
shipments of subject merchandise to the United States during the period 
of review (POR) (i.e., May 1, 1997, through April 30, 1998). We have 
confirmed this with information received from the Customs Service. 
Therefore, in accordance with 19 CFR 351.213(d)(3) and consistent with 
the Department's practice, we are rescinding our review with respect to 
CTM and Sucorrico (see, e.g., Certain Welded Carbon Steel Pipe and Tube 
from Turkey; Final Results and Partial Rescission of Antidumping 
Administrative Review, 63 FR 35190, 35191 (June 29, 1998); and Certain 
Fresh Cut Flowers From Colombia; Final Results and Partial Rescission 
of Antidumping Duty Administrative Review, 62 FR 53287, 53288 (Oct. 14, 
1997)).

Facts Available

A. Use of Facts Available

    In accordance with section 776(a)(2)(A) of the Act, we have based 
the dumping margin for Branco Peres Citrus S.A. (Branco Peres), Cambuhy 
Citrus Comercial e Exportadora Ltd. (Cambuhy), Citrovita Agro 
Industrial S.A. (Citrovita), and Frutax Industria e Comercio Ltda. 
(Frutax) on facts available. Section 776(a)(2) of the Act provides that 
if an interested party: (1) Withholds information that has been 
requested by the Department; (2) fails to provide such information in a 
timely manner or in the form or manner requested, subject to 
subsections 782(c)(1) and (e) of the Act; (3) significantly impedes a 
determination under the antidumping statute; or (4) provides such 
information but the information cannot be verified, the Department 
shall, subject to subsection 782(d) of the Act, use facts otherwise 
available in reaching the applicable determination. Specifically, both 
Cambuhy and Frutax failed to respond to the Department's questionnaire, 
issued in June 1998, while Branco Peres and Citrovita failed to respond 
to the cost of production (COP) questionnaire. Moreover, Citrovita also 
failed to respond to a supplemental questionnaire regarding sales 
information.
    Because all four respondents have failed to respond to certain 
questionnaires and have refused to participate fully in this 
administrative review, we find that, in accordance with sections 
776(a)(2)(A) and (C) of the Act, the use of total facts available is 
appropriate. See, e.g., Notice of Final Determination of Sales at Less 
Than Fair Value: Persulfates from The People's Republic of China, 62 FR 
27222, 27224 (May 19, 1997); and Certain Grain-Oriented Electrical 
Steel From Italy: Final Results of Antidumping Duty Administrative 
Review, 62 FR 2655 (Jan. 17, 1997) (affirming Certain Grain-Oriented 
Electrical Steel From Italy: Preliminary Results of Antidumping Duty 
Administrative Review, 61 FR 36551 (July 4, 1996)).
    Section 776(b) of the Act provides that adverse inferences may be 
used with respect to a party that has failed to cooperate by not acting 
to the best of its ability to comply with requests for information. See 
Statement of Administrative Action (SAA) accompanying the URAA, H.R. 
Doc. 103-316, Vol. 1, 870 (1994). The failure of each of the four 
respondents to participate in the review or to respond completely to 
the Department's questionnaires demonstrates that each has failed to 
act to the best of its ability in complying with the Department's 
request for information in this review and, therefore, an adverse 
inference is warranted. See, e.g., Notice of Final Determination of 
Sales at Less Than Fair Value: Certain Steel Concrete Reinforcing Bars 
From Turkey, 62 FR 9737 (Mar. 4, 1997) (Rebar from Turkey); and 
Extruded Rubber Thread From Malaysia; Final Results of Antidumping Duty 
Administrative Review, 64 FR 12967 (Mar. 16, 1999).
    In situations involving non-cooperating respondents of this type, 
it is the Department's normal practice to select as adverse facts 
available the highest margin from the current or any prior segment of 
the same proceeding. (See, e.g., Certain Corrosion-Resistant Carbon 
Steel Flat Products and Certain Cut-to-Length Carbon Steel Plate from 
Canada; Final Results of Antidumping Duty Administrative Review and 
Determination to Revoke in Part, 64 FR 2173, 2175 (Jan. 13, 1999); and 
Brass Sheet and Strip from Germany; Final Results of Antidumping Duty 
Administrative Review, 63 FR 42823 (Aug. 11, 1998).) In this case, 
however, use of this margin, 2.52 percent, would not be appropriate 
because it is apparent that the respondents would benefit from their 
lack of cooperation, given that 2.52 percent is much lower than the 
margins actually calculated based on information submitted by 
respondents in this segment of the proceeding (see below). Therefore, 
we do not believe this rate is high enough to encourage participation 
in future segments of this proceeding. See, e.g., Steel Wire Rope from 
the Republic of Korea; Final

[[Page 43652]]

Results of Antidumping Duty Administrative Review and Revocation in 
Part of Antidumping Duty Order, 63 FR 17986, 17987 (April 13, 1998).
    Consequently, in accordance with section 776(b)(4) of the Act, we 
have used the data on the record of this proceeding as adverse facts 
available. Specifically, we used the data supplied by the petitioners 
in the cost allegation, as well as the sales data provided by the two 
respondents that submitted partial questionnaire responses (i.e., 
Branco Peres and Citrovita), to calculate sales-specific dumping 
margins. We then selected as the facts available rates for Branco Peres 
and Citrovita the highest company-specific and transaction-specific 
margins calculated in this manner. The highest company-specific rates 
are 39.18 and 63.55 percent, respectively. In addition, we assigned the 
higher of these rates to the two remaining respondents who did not 
submit questionnaire responses (i.e., Cambuhy and Frutax). For the 
procedures used to determine the rates, see the ``Calculation of the 
Facts Available Rate'' section, below.
    We find that the methodology described above is appropriate given 
the particular facts of this case. Specifically, we note that, unlike 
in many cases, the publicly available cost data submitted by the 
petitioners in the cost allegation was complete. The petitioners 
provided cost data for 100 percent of the products sold by Branco Peres 
and Citrovita. Moreover, this data was contemporaneous with the POR and 
specific to Brazil. Finally, this methodology results in a facts 
available rate that is sufficiently high to effectuate the purpose of 
the facts available rule--which is to encourage the participation of 
these companies in future segments of this proceeding. (See Ad Hoc 
Committee of AZ-NM-TX-FL Producers of Gray Portland Cement v. United 
States, 865 F. Supp. 857, 858 (CIT 1994), where the Court affirmed that 
the best information available provisions encourage compliance with the 
Department's requests for information, in view of the Department's lack 
of subpoena power.)

B. Calculation of the Facts Available Rates

    As mentioned above, we calculated margins based on the information 
on the record using the following methodology:
    We used the data in the cost allegation to perform the cost test 
for Branco Peres and Citrovita. The COP information in the cost 
allegation was obtained from two sources: (1) A U.S. Department of 
Agriculture Attache Report, dated June 1998, which showed the price and 
quantity of oranges needed to produce one metric ton of FCOJ in Brazil; 
and (2) a study by a University of Florida professor published in 
Citrus & Vegetable Magazine in December 1997, which showed FCOJ 
processing and general and administrative costs in Brazil.
    We compared the COP figures derived from the cost allegation to 
home market/third country prices of the foreign like product, as 
required under section 773(b) of the Act, in order to determine whether 
these sales had been made at prices below the COP. We compared product-
specific COPs to product-specific foreign market prices, less any 
applicable movement charges.
    In determining whether to disregard foreign market sales made at 
prices below the COP, we examined whether such sales were made: (1) In 
substantial quantities within an extended period of time; and (2) at 
prices which permitted the recovery of all costs within a reasonable 
period of time in the normal course of trade. See section 773(b)(1) of 
the Act.
    Pursuant to section 773(b)(2)(C)(i) of the Act, where less than 20 
percent of a respondent's sales of a given product were at prices less 
than the COP, we did not disregard any below-cost sales of that product 
because we determined that the below-cost sales were not made in 
``substantial quantities.'' Where 20 percent or more of a respondent's 
sales of a given product were at prices below the COP, we found that 
sales of that product were made in ``substantial quantities'' within an 
extended period of time (as defined in section 773(b)(2)(B) of the 
Act), in accordance with section 773(b)(2)(C)(i) of the Act. In such 
cases, we also determined that such sales were not made at prices which 
would permit recovery of all costs within a reasonable period of time, 
in accordance with section 773(b)(2)(D) of the Act. Therefore, we 
disregarded the below-cost sales.
    We found that more than 20 percent of Branco Peres' and Citrovita's 
foreign market sales within an extended period of time were at prices 
less than COP. Further, the prices did not provide for the recovery of 
costs within a reasonable period of time. We, therefore, disregarded 
the below-cost sales and, where available, used the remaining above-
cost sales as the basis for determining normal value (NV), in 
accordance with section 773(b)(1) of the Act. For those U.S. sales of 
FCOJ for which there were no comparable foreign market sales in the 
ordinary course of trade, we compared export price (EP) and constructed 
export price (CEP) to constructed value (CV), in accordance with 
section 773(a)(4) of the Act.
    In accordance with section 773(e) of the Act, we calculated CV 
using the COP data referenced above. In accordance with section 
773(e)(2)(A) of the Act, we based profit for Branco Peres on the 
amounts incurred and realized by this company in connection with the 
production and sale of the foreign like product in the ordinary course 
of trade, for consumption in the foreign country. Regarding Citrovita, 
because: (1) This company made no sales at prices above the COP; and 
(2) there was no publicly available profit rate on the record of this 
proceeding, we used a profit rate which was derived from the public 
financial statements of the sole respondent who participated in the 
most recent prior administrative review. For further discussion, see 
Comment 2 in the ``Analysis of Comments Received'' section of this 
notice.
    In accordance with the results of the cost test, we disregarded all 
foreign market sales made at prices below the COP.
    We made currency conversions into U.S. dollars, in accordance with 
section 773A of the Act, based on the exchange rates in effect on the 
dates of the U.S. sales as certified by the Federal Reserve Bank. 
Company-specific calculations are discussed below.
1. Branco Peres
    We calculated EP using the data submitted by Branco Peres in its 
September 18, 1998, supplemental questionnaire response. We based EP on 
the gross unit price to the first unaffiliated purchaser in the United 
States. We made deductions from gross unit price, where appropriate, 
for foreign inland freight, foreign inland insurance, warehousing 
costs, and port charges, in accordance with section 772(c)(2)(A) of the 
Act.
    We also calculated NV using the data submitted on September 18, 
1998. Based on the results of the cost test described above, we found 
that Branco Peres made certain third country sales during the POR at 
prices above the COP. Consequently, where a contemporaneous comparison 
existed, we based NV on these above-cost sales. Where no 
contemporaneous comparison existed, we based NV on CV.
    Where NV was based on third country sales, we based NV on the gross 
unit price to unaffiliated customers. We made deductions, where 
appropriate, for foreign inland freight, foreign inland insurance, 
warehousing costs, and port charges, in accordance with section 
773(a)(6)(B) of the Act. Pursuant to

[[Page 43653]]

section 773(a)(6)(C)(iii) of the Act, we made circumstance-of-sale 
adjustments, where appropriate, for differences in commissions and 
credit expenses.
    Where NV was based on CV, we made circumstance-of-sale adjustments, 
where appropriate, for commissions and credit expenses, in accordance 
with sections 773(a)(6)(C)(iii) and (a)(8) of the Act. Because it was 
unclear whether the processing costs included in CV contained 
commission expenses, as facts available we assumed that these costs 
were exclusive of commissions.
2. Citrovita
    We calculated CEP using the data submitted by Citrovita on August 
17, 1998. We calculated CEP based on the gross unit price to the first 
unaffiliated customer in the United States. We made deductions from 
gross unit price, where appropriate, for foreign inland freight, ocean 
freight, marine insurance, U.S. brokerage and handling expenses, U.S. 
customs duties, U.S. inland freight, and U.S. warehousing expenses, in 
accordance with section 772(c)(2)(A) of the Act. We made additional 
deductions, where appropriate, for commissions, credit expenses, U.S. 
indirect selling expenses, and U.S. inventory carrying costs, in 
accordance with section 772(d)(1) of the Act.
    Because Citrovita did not respond to the supplemental sales 
questionnaire, we adjusted its U.S. sales data to account for certain 
discrepancies in its response. Specifically, where the data shown on 
Citrovita's calculation worksheets differed from the data contained in 
the U.S. sales listing, we used the highest figure reported as facts 
available. See the memorandum to the file from Sergio Gonzalez entitled 
``Calculations Performed for Citrovita for the Preliminary Results,'' 
dated February 1, 1999.
    We made no adjustment to the price for CEP profit, pursuant to 
section 772(d)(3) of the Act, because Citrovita operated at a loss with 
respect to its sales of FCOJ during the POR. See Comment 3.
    Based on the results of the cost test described above, we found 
that Citrovita made no home market sales during the POR at prices above 
the COP. Consequently, we based NV on CV.
    For CEP-to-CV comparisons, we made circumstance-of-sale 
adjustments, where appropriate, for commissions and credit expenses 
(offset by interest revenue received by Citrovita), in accordance with 
sections 773(a)(6)(C)(iii) and (a)(8) of the Act. We computed the CV 
profit rate using the public financial statements of the sole 
respondent who participated in the most recent prior administrative 
review. (See Comment 2.) Furthermore, we recalculated home market 
credit expenses on the basis of home market price net of Brazilian 
taxes, in accordance with our practice. See, e.g., Ferrosilicon from 
Brazil; Final Results of Antidumping Duty Administrative Review, 61 FR 
59407 (Nov. 22, 1996).

Analysis of Comments Received

    We gave interested parties an opportunity to comment on the 
preliminary results. We received comments from two respondents, (i.e., 
Branco Peres and Citrovita). We received rebuttal comments from the 
petitioners, (i.e., Florida Citrus Mutual, Caulkins Indian Citrus Co., 
Citrus Belle, Citrus World, Inc., Orange-Co of Florida, Inc., Peace 
River Citrus Products, Inc., and Southern Gardens Citrus Processors 
Corp).

Comment 1: Use of Adverse Facts Available

    Both Branco Peres and Citrovita contend that the Department's 
decision to use adverse facts available to calculate the margins in 
this review is not supported by evidence on the record, is contrary to 
law, and is in violation of application of the Agreement on Application 
of Article VI of GATT 1994, Annex II (use of best information 
available) (GATT 1994).
    Specifically, these companies argue that, in order to apply adverse 
facts available, the Department must first make a finding that the 
companies did not act to the best of their ability. See Borden, Inc., 
et al., versus United States, F. Supp. 2d 1221, 1246-47 (CIT 1998). 
Both companies argue that the Department cannot make such a finding in 
this review, because each respondent submitted complete, or almost 
complete, sales data, and the failure to provide cost data was caused 
by factors beyond their control. Branco Peres asserts that it did not 
possess the cost information required by the Department (due to 
circumstances of a business proprietary nature which cannot be 
discussed here), while Citrovita maintains that it did not possess 
personnel resources sufficient to complete the review (due to an 
economic crisis in Brazil).
    According to Branco Peres, Congress intended the Department to take 
these types of circumstances into account when evaluating a 
respondent's data. In support of this assertion, Branco Peres cites the 
SAA, which states that the Department ``may take into account the 
circumstances of the party including (but not limited to) the party's 
size, its accounting systems, and computer capabilities, as well as the 
prior success of the same firm, or other similar firms, in providing 
requested information in antidumping and countervailing duty 
proceedings.'' Branco Peres asserts that, not only does it have a 
history of being a cooperative respondent in prior segments of this 
proceeding, but it also would have supplied all of the data requested 
in this segment had it been able to do so. According to Branco Peres, 
the circumstances surrounding its inability to supply cost data are 
precisely the type of circumstances envisioned by Congress.
    Branco Peres asserts that the courts have made clear that the 
Department may not use adverse facts available to penalize companies 
for failing to provide information that does not exist. Branco Peres 
maintains that the courts have similarly held that the Department may 
not characterize a party's failure to provide such information as a 
``refusal'' to provide information. See Olympic Adhesives, Inc. versus 
United States, 899 F.2d 1565, 1572 (Fed. Cir. 1990) (Olympic 
Adhesives).
    According to Branco Peres and Citrovita, given the fact that the 
Department erred with respect to finding that each did not act to the 
best of its ability, the Department's use of adverse facts available is 
contrary to law and to GATT 1994.1 Branco Peres and 
Citrovita cite to section 782(e) of the Act (19 U.S.C. 1677m(e)), which 
states that the administering authority shall not decline to use 
information that is submitted by an interested party if that 
information is verifiable, submitted on time, is not so incomplete that 
it cannot be used, has been provided to the best of the party's 
ability, and can be used without difficulty. Branco Peres and Citrovita 
also assert that their information meets each of the above three 
criteria: it was submitted on time, it can be used without difficulty 
(since the Department did, in fact, use it to some extent for purposes 
of the preliminary results); and it has been provided to the best of 
the respondents' abilities. Moreover, while they acknowledge that the 
Department would be justified in using facts available to determine COP 
for both companies (and selling expenses for Citrovita), they argue 
that there is no basis for applying total facts available.
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    \1\ The language in Annex II of the Agreement on Implementation 
of Article VI of GATT (1994) to a large extent mirrors that in 19 
USC 1677m(e).
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    According to Citrovita, the Department has discretion in deciding 
whether to make adverse inferences. As support for this position, 
Citrovita cites the preamble to the Department's

[[Page 43654]]

regulations (see Final rule, 62 FR 37296, 27340 (May 19, 1997)), which 
states that ``if the Department finds that an interested party has 
failed to cooperate by not acting to the best of its ability to comply 
with a request for information, the Department, in reaching its 
determination, `may use an inference that is adverse to the interests 
of that party in selecting from the facts otherwise available.' ''
    Citrovita argues that the Department has consistently distinguished 
between respondents who do not cooperate at all and those who attempt 
to respond to the Department's information requests but cannot do so 
completely. As support for this assertion, Citrovita cites the Notice 
of Final Determination of Sales at Less Than Fair Value: Certain Pasta 
from Italy, 61 FR 30326, 30329 (June 14, 1996) (Pasta from Italy: LTFV 
Investigation); Roller Chain, Other Than Bicycle from Japan: Final 
Results and Partial Recission of Antidumping Duty Administrative 
Review, 63 FR 63671, 63674 (Nov. 16, 1998) (Roller Chain from Japan); 
and Certain Cut-to-Length Carbon Steel Plate from Sweden: Final Results 
of Administrative Review, 62 FR 46947, 46948 (Sept. 5, 1997). Citrovita 
notes that in the former two cases the Department assigned less adverse 
facts available rates based upon a finding of partial cooperation, 
while in the latter case the Department assigned a higher rate to a 
respondent who failed to cooperate at all. Consistent with these 
findings, Citrovita contends that the Department should assign it and 
Branco Peres facts available margins which are lower than the one 
assigned to Cambuhy and Frutax, given that they fully participated in 
this review by submitting responses to the Department's sales 
questionnaire, while Cambuhy and Frutax did not respond to any requests 
for information.
    Moreover, both respondents argue that, not only was the decision to 
use adverse facts available unsupported by law or Department practice, 
but also the method used to select the facts available margin was 
completely arbitrary. According to the respondents, the Department 
should reconsider its decision because the courts have held that the 
power to use facts available against recalcitrant parties cannot be 
used arbitrarily. See AK Steel Corp., et al., v. United States, 34 F. 
Supp. 2d 756, 771 (CIT 1998).
    Specifically, the respondents note that the Department deviated 
from its normal practice of applying the highest margin ever found in 
the current or any prior segment of the same proceeding, based on a 
finding that the respondents would benefit from such a policy. Branco 
Peres argues that in order to make this finding, however, the 
Department treated the respondents' data inconsistently, in that it 
deemed it reliable for certain purposes but not others. For example, 
Branco Peres asserts that, while the Department used the data to: (1) 
Determine the extent of the respondents' below-cost sales; (2) 
determine the fact that the calculated margin would be higher than the 
highest margin calculated in any prior segment (i.e., 2.52 percent); 
and (3) calculate transaction-specific margins, it did not deem it 
reliable enough to calculate the weighted-average dumping margin. 
According to Branco Peres, the Department failed to explain why the 
respondents' information was sufficiently reliable to justify departure 
from normal procedures, but not sufficiently reliable to calculate 
weighted-average margins.
    Furthermore, Branco Peres argues that the Department failed to 
explain why Citrovita's price information is a more reliable indicator 
of Branco Peres' margin than Branco Peres' own data, especially given 
that Branco Peres submitted a response to the Department's supplemental 
questionnaire, while Citrovita did not. Indeed, Branco Peres argues 
that the Department in three separate instances disregarded manifestly 
better information that was on the record in favor of inferior 
information. Specifically, Branco Peres asserts that the Department: 
(1) Used Citrovita's, rather than Branco Peres', prices to establish 
the dumping margins for Branco Peres; (2) calculated the adverse facts 
available margin using CEP methodology (because Citrovita made CEP 
sales), although Branco Peres had no CEP sales; and (3) calculated 
profit using Branco Peres' pre-POR profits when the information on the 
record showed that neither Branco Peres nor Citrovita was operating at 
a profit during the POR. Branco Peres asserts that the use of 
Citrovita's information is impermissible in this instance, because 
courts have held that the Department may not disregard acceptable 
information in favor of what is demonstrably inferior information. See 
Rautaruukki Oy v. United States, Consol. Ct. No 97-05-00864, Slip Op. 
98-112, 1998 CIT LEXIS 109 (Aug. 4, 1998) (Rautaruukki).
    Branco Peres argues that, for purposes of the final results, the 
Department should determine its margin by comparing net U.S. prices to 
the cost information submitted by the petitioners (i.e., costs without 
profit). According to Branco Peres, the margin resulting from this 
comparison is sufficiently punitive, because it is more than twice the 
highest rate calculated in any prior review. Alternatively, the 
respondents assert that the Department should apply the weight-averaged 
rates calculated, but not used, for each respondent for purposes of the 
preliminary results. These rates are 18.33 percent for Branco Peres and 
22.09 for Citrovita.2 The respondents argue that these rates 
would not in any way reward them for not supplying information, because 
they were calculated using the cost data submitted by the petitioners. 
According to the respondents, because this cost information is 
overstated, the extent of the dumping margins is overstated as well.
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    \2\ The respondents argue that these rates should be adjusted to 
incorporate the calculation changes identified below.
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    According to the petitioners, the Department was justified in using 
adverse facts available for purposes of the preliminary results because 
neither respondent acted to the best of its ability in this proceeding. 
Regarding Branco Peres, the petitioners state that this company should 
have known that a cost investigation was likely to be initiated 
because: (1) The information used in the cost allegation was public 
information based on Brazilian industry data, which showed that the 
Brazilian FCOJ industry was experiencing losses during the POR; and (2) 
Branco Peres had been involved in cost investigations in previous 
segments of this proceeding and, therefore, was familiar with the 
procedures. The petitioners assert that Branco Peres intentionally 
planned not to respond to a COP questionnaire in hopes of obtaining a 
minimal facts available rate. Moreover, the petitioners assert that 
Branco Peres' reliance on Olympic Adhesives is misplaced, because in 
Olympic Adhesives, the court found that the Department incorrectly 
applied total facts available to a respondent who did not provide 
information which had never been directly requested; here, on the other 
hand, Branco Peres failed to respond to the Department's specific 
request for cost information.
    The petitioners argue that Citrovita's claim that it failed to 
submit a complete response because of the current economic crisis in 
Brazil is similarly without merit. According to the petitioners, if the 
Department were to allow a respondent to refuse to answer 
questionnaires on the basis on national economic problems, the entire 
process of administrative reviews would be compromised.
    Moreover, the petitioners note that the Act contains a provision 
designed to aid

[[Page 43655]]

companies who encounter difficulties in responding to the 
questionnaire. Specifically, section 782(c) of the Act affords 
interested parties in a review the opportunity to notify the Department 
when they are unable to submit the information requested, and requires 
them to provide suggested alternatives for submitting the information. 
The petitioners note that Citrovita not only failed to inform the 
Department of any difficulties in responding to the questionnaires 
prior to withdrawing from the review, but it also suggested no 
alternatives for completing the responses. Furthermore, the petitioners 
assert that Citrovita did not explain why it had sufficient staff to 
complete the initial sales questionnaire response, but not the 
supplemental and COP questionnaires.
    The petitioners state that the Department acted completely within 
its discretion in selecting the rate to use as adverse facts available 
for Branco Peres and Citrovita. Regarding Branco Peres' argument that 
the Department should have used its own information in order to 
calculate a margin, the petitioners note that the SAA at page 869 does 
not require the Department to prove that the facts available margin is 
based on the best alternative information. Rather, the petitioners 
state that this section of the SAA merely requires that the information 
or inferences used as facts available be reasonable under the 
circumstances. Further, the petitioners note that both the GATT and the 
URAA direct the Department to consider the extent to which a party may 
benefit from its own lack of cooperation. The petitioners argue that in 
this case the respondents' failure to respond to the Department's cost 
questionnaire could be due in part to the respondents' expectations 
that they would receive a lower rate by not cooperating. According to 
the petitioners, the information selected for facts available should 
take this possibility into account.
    Regarding Branco Peres' assertion that its information is reliable 
since the Department used it in part, the petitioners assert that the 
Department never made a determination that this information was fully 
accurate. Rather, the petitioners maintain that the Department simply 
used this information to determine if there were reasonable grounds to 
initiate a cost investigation. According to the petitioners, the level 
of the reliance on accuracy and detail of information for margin 
calculation purposes is much greater than for the purpose of 
determining the extent of sales below the COP. Finally, the petitioners 
assert that the use of information for one purpose does not necessarily 
make it reliable for a completely different purpose. Consequently, the 
petitioners argue that, even if Branco Peres' sales information were 
somehow more reliable than Citrovita's, the Department was still well 
within its discretion in this case to choose which facts available rate 
to apply and to make an adverse inference in doing so.

DOC Position

    We disagree with the respondents, in part. We find that our 
determination to rely on adverse facts available is reasonable, 
supported by evidence on this record, and otherwise in accordance with 
law (as discussed below). Nonetheless, we have reconsidered the 
methodology used to select the adverse facts available margin for 
Branco Peres. For purposes of the final results, we assigned this 
company the highest transaction-specific margin generated using its own 
data.
    According to section 776(a) of the Act, the Department shall use 
the facts otherwise available in reaching a determination if:
    (1) Necessary information is not available on the record, or
    (2) An interested party or any other person--
    (A) Withholds information that has been requested by the 
administering authority or the Commission under this title,
    (B) Fails to provide such information by the deadlines for 
submission of the information or in the form and manner requested, 
subject to subsections (c)(1) and (e) of section 782,
    (C) Significantly impedes a proceeding under this title, or
    (D) provides such information but the information cannot be 
verified as provided in section 782(i).
    In this proceeding, both Branco Peres and Citrovita submitted an 
apparently complete response to the initial sales questionnaire. 
However, neither responded to the Department's request for COP and CV 
information. Moreover, Citrovita also did not respond to the 
supplemental sales questionnaire. While we may have been able to ``fill 
in the gaps'' in Citrovita's sales data without a supplemental 
response, we were unable to do so with respect to the COP/CV data. This 
information is vital to our dumping analysis, because: (1) It provides 
the basis for determining whether comparison market sales can be used 
to calculate normal value; and (2) in certain instances (e.g., when 
there are no comparison market sales made at prices above the COP), it 
is used as the basis of NV itself. In cases involving a sales-below-
cost investigation, as in this case, lack of COP/CV information renders 
a company's response so incomplete as to be unuseable. See, e.g., 
Notice of Final Determination of Sales at Less Than Fair Value: 
Stainless Steel Plate in Coils from Canada, 64 FR 15457 (Mar. 31, 1999) 
(Plate from Canada); Certain Cut-to-Length Carbon Steel Plate from 
Mexico: Final Results of Antidumping Duty Administrative Review, 64 FR 
76, 82 (Jan. 4, 1999); Notice of Final Results and Partial Rescission 
of Antidumping Duty Administrative Review: Canned Pineapple Fruit From 
Thailand, 63 FR 43661, 43664 (Aug. 14, 1998) (Pineapple from Thailand); 
Rebar from Turkey, 62 FR at 9737-3738; and Certain Cut-to-Length Carbon 
Steel Plate From Sweden: Final Results of Antidumping Duty 
Administrative Review, 62 FR 18396, 18401 (Apr. 15, 1997).
    Accordingly, because both companies failed to submit information 
which was not only specifically requested by the Department but was 
also fundamental to the dumping analysis, we find that they withheld 
information necessary to reach a determination and/or significantly 
impeded the proceeding. Consequently, we have assigned these companies 
margins based on total facts available, as required by sections 
776(a)(2)(A) and (C) of the Act.
    According to section 776(b) of the Act, if the Department finds 
that an interested party fails to cooperate by not acting to the best 
of its ability to comply with a request for information, the Department 
may use an inference that is adverse to the interests of that party in 
selecting from the facts otherwise available. We have determined that 
the respondents did not act to the best of their ability in this 
proceeding, as required by section 776(b) of the Act, because we find 
that the failure to provide the information requested was not beyond 
either respondent's control.
    Regarding Branco Peres, we note that this company possessed the 
information necessary to complete the review at the time that the 
review was initiated. At initiation, the information was within Branco 
Peres' control. Although Branco Peres subsequently maintained control 
of the sales data only, there is no evidence to indicate that it was 
outside Branco Peres' ability to maintain control over the data 
necessary to respond to the cost questionnaire. As with its sales data, 
the company could have made an adequate provision to retain this cost 
data. Not only was Branco Peres aware that the possibility of a cost 
investigation existed (in light of its participation in cost 
investigations in previous segments of this proceeding),

[[Page 43656]]

but it should have been aware that such an investigation was likely, 
given that the information used in the cost allegation was public 
information based on Brazilian industry data.
    Furthermore, although Branco Peres' factual circumstances changed 
during the course of the review, this does not relieve Branco Peres of 
the obligation to attempt to comply, to the best of its ability, with 
the request for information. In this case, Branco Peres provided no 
evidence that it attempted to obtain the cost information necessary to 
complete the review. Finally, we note that section 782(c) of the Act 
affords interested parties in a review the opportunity to notify the 
Department when they are unable to submit the information requested, 
and requires them to provide suggested alternatives for submitting the 
information. Although Branco Peres notified the Department of its 
purported inability to submit the information, it provided no 
suggestions for submitting alternative information. See, e.g., Notice 
of Final Results and Partial Rescission of Antidumping Duty 
Administrative Review: Certain Pasta From Turkey, 63 FR 68429, 68429 
(December 11, 1998); and Notice of Final Results and Partial Rescission 
of Antidumping Duty Administrative Review: Certain Pasta From Italy, 64 
FR 6615, 6616 (Feb. 10, 1999) (Pasta from Italy). Consequently, we find 
that Branco Peres did not act to the best of its ability in this 
proceeding.
    For the foregoing reasons, we find that Branco Peres' reliance on 
Olympic Adhesives is misplaced. In Olympic Adhesives, the respondent 
failed to provide information which had never been directly requested 
by the Department and had never existed. Here, there is no dispute that 
the information exists. Moreover, the information was directly 
requested by the Department; Branco Peres simply did not provide it; 
nor did it attempt to provide reasonable alternative information.
    Regarding Citrovita, we note that this company possessed the sales 
and cost information requested by the Department, but it opted to 
withdraw from the review rather than to submit this information. In its 
withdrawal letter, Citrovita stated:

[t]he Department's recent decision to initiate a sales below cost 
investigation will make it extremely difficult, if not impossible, 
for Citrovita to complete the required responses within the time 
frame allotted. The current economic crisis in Brazil has forced us 
to maintain the bare minimum of staff and we simply do not have the 
personnel resources to dedicate to completing the review.

It is clear from this statement that Citrovita made a conscious 
decision not to allocate any more resources to participating in this 
review. Although Citrovita cites the deadlines for submitting its 
responses, it did not request an extension of these deadlines. Indeed, 
had Citrovita requested such an extension, the company could have 
reasonably expected that the Department would grant it, given that 
Citrovita had requested and received extensions for filing both its 
initial and supplemental sales responses in this review.
    Moreover, we find Citrovita's concerns related to staffing 
unpersuasive. We note that Citrovita was able to submit its initial 
questionnaire response without raising similar staffing concerns. 
Acceptance of Citrovita's argument in this proceeding would be 
tantamount to giving companies the option not to dedicate their 
resources to response preparation, which would have the practical 
effect of waiving the requirement that companies submit cost responses 
at all. The Department has a long-standing practice of denying these 
types of administrative burden arguments. See, e.g., Pasta from Italy, 
Plate from Canada, Roller Chain from Japan, and Pineapple from 
Thailand.
    Nonetheless, Congress recognized that on occasion respondents may 
experience legitimate difficulties in collecting information. The SAA 
indicates that the Department has the discretion to modify its request 
for information if promptly asked to do so by an interested party, to 
avoid imposing an unreasonable burden on the party. Specifically, the 
SAA states that the Department:

Will take due account of difficulties experienced by parties, 
particularly small companies, in supplying information, and will 
provide such assistance as [the Department considers] practicable * 
* * Section 782(c)(1) is intended to alleviate some of the 
difficulties encountered by small firms and firms in developing 
countries, particularly with regard to the submission of data in 
computerized form. It is not intended to exempt small firms from the 
requirements of the antidumping and countervailing duty laws.

SAA at 864 and 865 (emphasis added). As noted in the SAA, section 
782(c) of the Act directs the Department to mitigate the burden imposed 
on respondents under certain circumstances (e.g., when a company is 
unable to submit data in the appropriate computer format). It is clear 
from the SAA, however, that Congress did not intend the Department to 
exempt firms from submitting questionnaire responses because the 
preparation of these responses would place an unreasonable 
administrative burden on respondents.
    Although section 782(c)(1) of the Act allows the Department to 
consider the ability of the respondent to submit information, Citrovita 
did not attempt to invoke this provision. Specifically, Citrovita did 
not request that the Department modify its reporting requirements to 
alleviate its administrative burden, nor did it provide any alternative 
solutions. It merely withdrew from the proceeding. Thus, we find that 
Citrovita was not unable to respond to our information requests; it was 
simply unwilling to do so. Consequently, we also find that Citrovita 
did not act to the best of its ability in this review.
    Accordingly, we have made an adverse inference in selecting the 
margins for both respondents for purposes of the final results. Section 
776(b) of the Act provides that the Department may use the following 
sources of information in making adverse inferences:
    (1) The petition,
    (2) A final determination in the investigation under this title,
    (3) Any previous review under section 751 or determination under 
section 753, or
    (4) Any other information placed on the record.
    In this case, in accordance with section 776(b)(4) of the Act, we 
have continued to use the data on the record of this proceeding as 
adverse facts available. Specifically, we used the data supplied by the 
petitioners in the cost allegation, as well as the sales data provided 
by Branco Peres and Citrovita, to calculate sales-specific dumping 
margins. We then selected as the facts available rate for each company 
the highest transaction-specific margin generated using its own data.
    We disagree with the respondents that the methodology used to 
select the facts available margins is arbitrary. In choosing these 
margins, we looked to the SAA for guidance. Specifically, the SAA 
states:

Where a party has not cooperated, Commerce and the Commission may 
employ adverse inferences about missing information to ensure that 
the party does not obtain a more favorable result by failing to 
cooperate than if it had cooperated fully. In employing adverse 
inferences, one factor the agencies will consider is the extent to 
which a party may benefit from its own lack of cooperation.

SAA at 870 (emphasis added).
    As noted in the ``Facts Available'' section of this notice, the 
data on the record indicates that the respondents were dumping during 
the POR at rates higher than the highest rate ever

[[Page 43657]]

determined in any other segment of this proceeding. For this reason, we 
find that assigning them the highest rate ever determined would allow 
the respondents to benefit from their lack of cooperation.
    Similarly, we find that using the data in the cost allegations to 
calculate company-specific weighted-average dumping margins potentially 
would allow the respondents to benefit. Contrary to the respondents' 
assertions, there is no evidence on the record that the costs in these 
allegations were overstated. Rather, we find that it is equally likely 
that these costs are understated with respect to Branco Peres and 
Citrovita, because they are based on average data from the Brazilian 
FCOJ industry, which is comprised of both high-and low-cost producers. 
Thus, we find that the use of this information is not adverse to the 
respondents.
    According to the SAA, at 869, there is no requirement that the 
information used as facts available be the best alternative 
information. Rather, the SAA merely requires that the facts available 
be reasonable to use under the circumstances. As we discussed above, 
the highest company-specific margin is a reasonable use of facts 
available.\3\
---------------------------------------------------------------------------

    \3\ We disagree with Branco Peres that we should calculate this 
dumping margin without incorporating an element for CV profit. 
Because our calculations show that Branco Peres made comparison 
market sales in the ordinary course of trade during the POR, we have 
used the profit derived from these sales in the computation of CV 
for Branco Peres. For further discussion, see Comment 2 below.
---------------------------------------------------------------------------

    We disagree with Branco Peres that the Department may not disregard 
its sales information because the Department has not only deemed this 
information reliable, but this information meets the requirements of 
section 782(e) of the Act. We find that Branco Peres' arguments are 
without merit, because, in situations involving the application of 
total facts available, it is the Department's practice to evaluate 
whether a respondent's data in toto should be disregarded under section 
782(e) of the Act. Given the fact that Branco Peres did not submit a 
complete questionnaire response, the five requirements of section 
782(e) of the Act were not met. Therefore, the Department is not 
required to use this information. See, e.g., Pineapple from Thailand 
and Certain Welded Carbon Steel Pipes and Tubes From Thailand: Final 
Results of Antidumping Duty Administrative Review, 62 FR 53808, 53819-
20 (Oct. 16, 1997).
    Moreover, although we have ultimately reached the same conclusion, 
we also disagree with Branco Peres' rationale as to why the Department 
should not base its margin on Citrovita's data in this review. We note 
that in certain cases it may be appropriate to base the facts available 
rate for one respondent on another company's margin. However, in such 
instances the Department does not attempt to assign rates of companies 
who are similarly situated to the non-cooperating respondent, nor do we 
take into account whether these companies primarily made EP or CEP 
sales. See, e.g., Extruded Rubber Thread from Malaysia; Final Results 
of Antidumping Duty Administrative Review, 63 FR 12752, 12763 (Mar. 16, 
1998). Furthermore, we find that Branco Peres' citation to Rautaruukki 
equally does not apply here, because the court in that case merely held 
that the Department may not continue to use as facts available any 
rates which were subsequently invalidated on remand. Rather, the court 
mandated that the Department must use the updated rates when choosing 
margins in proceedings involving facts available.
    Nonetheless, we agree that we should base Branco Peres' margin on 
its own data. This data has probative value and is sufficiently 
adverse.
    Finally, we disagree with Citrovita's argument that the Department 
should assign it a rate which is less adverse than the margins assigned 
to those companies who did not respond at all. While we acknowledge 
that the Department has, in other proceedings, assigned less adverse 
rates in instances where a respondent has made a sufficient effort to 
cooperate (see, e.g., Pasta from Italy: LTFV Investigation), we do not 
consider it appropriate to do so here. Citrovita essentially terminated 
its participation in the review, failing to respond at all to the COP/
CV section of the questionnaire. Moreover, in order to assign different 
rates to the ``less cooperative'' respondents in this case, the 
Department would be required to either: (1) Assign lower margins than 
we consider suitable to Branco Peres and Citrovita; or (2) select a 
more adverse rate for Cambuhy and Frutax. Neither of these options is 
appropriate.
    Although there are more adverse rates available to the Department, 
use of these rates would require us to resort to the data in the 
petition. Given the facts that: (1) The data on the record is more 
probative of current conditions than is the data contained in the 
petition; (2) unlike in many cases, this data can actually be used to 
calculate dumping margins; \4\ and (3) we have determined that the 
rates calculated using the facts available are sufficiently high to 
encourage participation in future segments of the proceeding, we find 
that there is no need to resort to the petition in this segment.
---------------------------------------------------------------------------

    \4\ Although the respondents failed to respond to the cost 
questionnaire, complete cost information exists on this record. 
Specifically, the cost allegation contains costs for 100 percent of 
the products sold by Branco Peres and Citrovita.
---------------------------------------------------------------------------

Comment 2: CV Profit Calculation for Citrovita

    For purposes of the preliminary results, the Department based the 
CV profit rate on information contained in the 1995 public financial 
statements of Branco Peres, because these were the most recent 
financial statements available to the Department showing a profit on 
the sale of FCOJ. Citrovita argues this methodology is not in 
accordance with the statute because the Department ignored Citrovita's 
own income statement in favor of another producer's pre-POR data.
    In support of its position, Citrovita cites section 773(e)(2)(B) of 
the Act, which provides the following three alternatives for 
calculating CV profit when there are no home market sales in the 
ordinary course of trade:
    (i) The actual amounts incurred and realized by the specific 
exporter or producer being examined * * * in connection with the 
production and sale, for consumption in the foreign country, of 
merchandise that is in the same general category of products as the 
subject merchandise;
    (ii) The weighted average of the actual amounts incurred and 
realized by exporters or producers that are subject to the * * * review 
(other than the exporter or producer described in clause (i)) * * * in 
connection with the production and sale of a foreign like product, in 
the ordinary course of trade, for consumption in the foreign country; 
or
    (iii) the amounts * * * based on any other reasonable method, 
except that the amount of profit may not exceed the amount normally 
realized by exporters or producers (other than the exporter or producer 
described in clause (i)) in connection with the sale, for consumption 
in the foreign country, of merchandise that is in the same general 
category of products as the subject merchandise.
    According to Citrovita, the Department correctly did not invoke 
subsection (i) above, because it found that Citrovita made all of its 
home market sales at prices below the COP. However, Citrovita maintains 
that the Department erred in using Branco Peres' financial statements 
because Branco

[[Page 43658]]

Peres did not have home market sales of FCOJ, as required by both 
subsections (ii) and (iii). Moreover, Citrovita notes that these 
financial statements reflected worldwide sales which were made two 
years prior to the instant period of review.
    Citrovita asserts that, because the requirements of subsections 
(ii) and (iii) cannot be met due to the absence of appropriate data on 
the record, the Department should calculate the CV profit rate based on 
the combined income statement of Citrovita and Votorantrade, 
Citrovita's affiliated exporter. Alternatively, Citrovita argues that, 
should the Department disregard these statements because they reflect a 
combined loss, the Department should use only Votorantrade's income 
statement because this statement shows a profit. According to 
Citrovita, the Department would be justified in using Citrovita's own 
experience to calculate the CV profit rate because the SAA, at 841, 
states that ``in situations where the producer and exporter are 
separate companies, the Administration intends that Commerce may 
continue to calculate constructed value based on the total profit and 
total SG&A expenses realized and incurred by both companies.''
    The petitioners disagree, asserting that the Department acted 
within its discretion in selecting the CV profit rate. According to the 
petitioners, section 776(b) of the Act authorizes the Department to use 
information derived from previous administrative reviews when drawing 
adverse inferences. Furthermore, the petitioners assert that there was 
no reason for the Department to rely on secondary information from one 
of Citrovita's affiliated parties when it had an actual profit figure 
from another respondent engaged directly in FCOJ production.

DOC Position

    We disagree with Citrovita and as part of our adverse facts 
available determination we have continued to base CV profit on the 1995 
financial statements of Branco Peres. Based on the results of our 
analysis, we found that Citrovita made no home market sales in the 
ordinary course of trade during the POR. According to section 
773(e)(2)(B) of the Act, the Department has three alternatives for 
calculating CV profit in these circumstances. Specifically, section 
773(e)(2)(B) directs the Department to use: (1) The respondent's own 
profits earned on home market sales, made in the ordinary course of 
trade, of the same general category of merchandise; (2) another 
respondent's profits earned on home market sales, made in the ordinary 
course of trade, of the foreign like product; or (3) profits based on 
any other reasonable method, as long as they do not exceed the amount 
normally realized on home market sales by other exporters or producers 
of the same general category of merchandise. However, the Department is 
not required to follow any of these approaches, given that we have made 
a determination to base the respondents' margins on adverse facts 
available.
    Moreover, contrary to Citrovita's assertion, the Department has 
interpreted section 773(e)(2) of the Act as requiring a positive amount 
for profit in the calculation of CV. Although the URAA and the 
subsequent revisions to U.S. law eliminated the use of a minimum 
profit, it did not eliminate the presumption of a profit element 
altogether. For a discussion of the reasoning behind our interpretation 
in this area, see Silicomanganese from Brazil, Final Results of 
Antidumping Administrative Review, 62 FR 37877-37878 (July 15, 1997). 
Consequently, contrary to Citrovita's assertions, the Department cannot 
use the combined income statements of Citrovita and Votorantrade to 
determine Citrovita's profit, because these statements show a loss.
    We also disagree with Citrovita that we can base profit on the 
income statement of Votorantrade alone. As Citrovita correctly noted, 
the SAA states:

In situations where the producer and exporter are separate 
companies, the Administration intends that Commerce may continue to 
calculate total profit and total SG&A expenses realized and incurred 
by both companies.

SAA at 841. Thus, the SAA directs the Department to use combined data 
in cases where the producer and exporter are separate. In any event, 
however, we find that it would be inappropriate to use Votorantrade's 
data, because this company appears to function as a middle man between 
Citrovita and its U.S. affiliate. Thus, the profit shown on this income 
statement is merely an intra-corporate profit, because it is derived in 
large part from transactions between affiliated parties.
    Because we are precluded from determining profit under the 
methodology advocated by Citrovita, we have continued to base the 
amount of profit on the facts available under the methodology used for 
purposes of the preliminary results. Specifically, we have continued to 
use the most recent financial statements available to the Department 
showing a profit on the sale of FCOJ. We find that this method is 
reasonable, because these financial statements are for the sale of the 
foreign like product in question. Moreover, we find that these 
financial statements continue to have probative value, because the 
profit percentage computed from them is comparable to the profit 
percentage computed using the proprietary data submitted by Branco 
Peres in this administrative review. See the memorandum to the file 
from Sergio Gonzalez regarding this topic, dated August 4, 1999. 
Finally, we find that this method does not conflict with the intent of 
the Act, because: (1) This alternative does not require that profit be 
determined on home market sales; and (2) there is no information 
available to use in determining the profit ``cap.'' See the SAA at 841.

Comment 3: CEP Profit Calculation for Citrovita

    For purposes of the preliminary results, the Department also based 
the CEP profit rate for Citrovita on the 1995 financial statements of 
Branco Peres. According to Citrovita, this methodology is contrary to 
law, as well as a direct contradiction of Department policy as set 
forth in the SAA. Specifically, Citrovita notes that the SAA states, at 
155, that ``if there is no profit to be allocated (because the 
affiliated entity is operating at a loss in the United States and 
foreign markets) Commerce will make no adjustment under section 
772(d)(3)'' of the Act. In addition, Citrovita cites to section 772(f) 
of the Act, which requires the Department to use total actual profit in 
calculating the CEP profit deduction.
    Citrovita asserts that its own financial statements show that the 
company operated at a loss during 1997. Therefore, Citrovita argues 
that the Department should make no adjustment to U.S. price for CEP 
profit for purposes of the final results.

DOC Position

    Section 772(f)(1) of the Act states that the Department will 
calculate CEP profit by multiplying the total actual profit by the 
applicable percentage of U.S. expenses to total expenses. According to 
section 772(f)(2)(D) of the Act, ``total actual profit'' is defined as 
the total profit earned by the foreign producer, exporter, and 
affiliated parties with respect to the sale of the same merchandise for 
which total expenses are determined.
    Because the data on the record shows that Citrovita operated at an 
aggregate loss in its home and U.S. markets during the POR, we have 
made no adjustment for CEP profit for purposes of the final

[[Page 43659]]

results, in accordance with section 772(f)(1) of the Act.

Comment 4: CEP Offset

    Citrovita argues that the Department improperly denied it a CEP 
offset for purposes of the preliminary results. Citrovita maintains 
that it is entitled to a CEP offset in accordance with 19 CFR 
351.412(f) because: (1) It does not sell in the home market at a level 
of trade that is comparable to the CEP level of trade; and (2) it 
cannot quantify a level of trade adjustment. According to Citrovita, 
this offset should equal total home market indirect selling expenses, 
capped by the amount of indirect selling expenses incurred on U.S. 
sales.

DOC Position

    We disagree. Section 351.412(f) states that the Department will 
grant a CEP offset only under the following conditions: (1) NV is 
compared to CEP; (2) NV is determined at a more advanced level of trade 
than the level trade of the CEP; and (3) despite the fact that a person 
has cooperated to the best of its ability, the data available do not 
provide an appropriate basis to determine whether the difference in 
level of trade affects price comparability. In this case, we find that 
neither of the second two criteria has been met. Specifically, we note 
that there is no information on the record to establish that NV is at a 
more advanced level of trade than the CEP. Moreover, we have found that 
Citrovita has not cooperated to the best of its ability in this 
administrative review. (See Comment 1.) Consequently, we find that 
Citrovita is not entitled to a CEP offset for purposes of the final 
results.

Final Results of Review

    As a result of our review, we find that the following margins exist 
for the period May 1, 1997, through April 30, 1998:

------------------------------------------------------------------------
                                                                 Margin
                    Manufacturer/exporter                       percent
------------------------------------------------------------------------
Branco Peres Citrus, S.A.....................................      39.18
Cambuhy Citrus Comercial e Exportadora Ltda..................      63.55
Citrovita Agro Industrial S.A................................      63.55
Frutax Industria e Comercio Ltda.............................      63.55
------------------------------------------------------------------------

    The Department shall determine, and the Customs Service shall 
assess, antidumping duties on all appropriate entries. The duty 
assessment rates for importers of subject merchandise will be those 
rates listed above. These rates will be assessed uniformly on all 
entries of FCOJ made during the POR. The Department will issue 
appraisement instructions directly to the Customs Service.
    Further, the following deposit requirements will be effective for 
all shipments of frozen concentrated orange juice 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 for by section 751(a)(1) of the Act: (1) The cash deposit 
rates for the reviewed companies will be the rates for those firms as 
stated above; (2) for previously investigated companies not listed 
above, the cash deposit rate will continue to be the company-specific 
rate published for the most recent period; (3) if the exporter is not a 
firm covered in this review, or the 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 (4) 
the cash deposit rate for all other manufacturers or exporters will 
continue to be 1.96 percent, the all others rate established in the 
LTFV investigation.
    These 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 351.402(f) 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 
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 351.305(a)(3) 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) of the Act (19 U.S.C. 1675(a)(1)), section 777(i) of 
the Act (19 U.S.C. 1677f(i)), and 19 CFR 351.210(c).

    Dated: August 4, 1999.
Robert S. LaRussa,
Assistant Secretary for Import Administration.
[FR Doc. 99-20738 Filed 8-10-99; 8:45 am]
BILLING CODE 3510-DS-P