[Federal Register Volume 67, Number 74 (Wednesday, April 17, 2002)]
[Notices]
[Pages 18859-18862]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-9332]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-351-605]


Frozen Concentrated Orange Juice from Brazil; Preliminary Results 
and Partial Rescission of Antidumping Duty Administrative Review

AGENCY: Import Administration, International Trade Administration, 
Department of Commerce.
SUMMARY: In response to a request by the petitioners and one producer/
exporter of the subject merchandise, the Department of Commerce is 
conducting an administrative review of the antidumping duty order on 
frozen concentrated orange juice from Brazil. This review covers one 
manufacturer/exporter of the subject merchandise to the United States. 
The period of review is May 1, 2000, through April 30, 2001.
    We have preliminarily determined that no sales have been made below 
the normal value by Branco Peres Citrus S.A. in this review. In 
addition, we have preliminarily determined to rescind the review with 
respect to Citrovita Agro-Industrial Ltda., CTM Citrus S.A., and 
Sucorrico S.A. If these preliminary results are adopted in the final 
results of this administrative review, we will instruct the Customs 
Service not to assess antidumping duties on any entries subject to this 
review.
    We invite interested parties to comment on these preliminary 
results. Parties who wish to submit comments in this proceeding are 
requested to submit with each argument: (1) a statement of the issue; 
and (2) a brief summary of the argument.

EFFECTIVE DATE: April 17, 2002.

FOR FURTHER INFORMATION CONTACT: Irina Itkin or Elizabeth Eastwood, 
Office of AD/CVD Enforcement, Office 2, Import Administration, 
International Trade Administration, U.S. Department of Commerce, 14th 
Street and Constitution Avenue, NW, Washington, DC, 20230; telephone 
(202) 482-0656 or (202) 482-3874, respectively.

SUPPLEMENTARY INFORMATION:

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 are to the Department's regulations 
at 19 CFR part 351 (2001).

Background

    On May 1, 2001, the Department of Commerce (the Department) 
published in the Federal Register a notice of ``Opportunity to Request 
an Administrative Review'' of the antidumping duty order on frozen 
concentrated orange juice (FCOJ) from Brazil (66 FR 21740).
    In accordance with 19 CFR 351.213(b)(1), on May 31, 2001, one 
producer and exporter of FCOJ, Branco Peres Citrus, S.A. (Branco 
Peres), requested an administrative review covering the period May 1, 
2000, through April 30, 2001. On May 31, 2001, the petitioners, 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., also requested an 
administrative review for the following four producers and exporters of 
FCOJ: Branco Peres; Citrovita Agro-Industrial Ltda. and its affiliated 
parties Cambuhy MC Industrial Ltda. and Cambuhy Citrus Comercial e 
Exportadora (collectively ``Citrovita''); CTM Citrus S.A. (CTM); and 
Sucorrico S.A. (Sucorrico). On June 4, 2001, we issued questionnaires 
to each of these companies.
    On June 19, 2001, the Department initiated an administrative review 
for Branco Peres, Citrovita and its affiliates Cambuhy and Cambuhy 
Exportadora, CTM, and Sucorrico (66 FR 32934).
    On August 1, 2001, Sucorrico informed the Department that it had no 
shipments of subject merchandise to the United States during the period 
of review (POR). We reviewed Customs data to confirm that neither 
Sucorrico nor CTM had shipments of subject merchandise during the POR. 
Consequently, in accordance with 19 CFR 351.213(d)(3) and consistent 
with our practice, we are preliminarily rescinding our review for CTM 
and Sucorrico. For further discussion, see the ``Partial Rescission of 
Review'' section of this notice, below.
    In August 2001, we received a response from Branco Peres to 
sections

[[Page 18860]]

A through D of the Department's questionnaire and issued a supplemental 
questionnaire to the respondent. We received a response to the 
supplemental questionnaire in September 2001.
    In January 2002, the petitioners withdrew their request for review 
for Citrovita. Consequently, we are also preliminarily rescinding our 
review for Citrovita. For further discussion, see the ``Partial 
Rescission of Review'' section of this notice, below.
    In January and February 2002, we issued additional supplemental 
questionnaires to Branco Peres. We received responses to these 
supplemental questionnaires in February and March 2002.

Scope of the Order

    The merchandise covered by this review is frozen concentrated 
orange juice 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 written description of the scope of this 
proceeding is dispositive.

Period of Review

    The POR is May 1, 2000, through April 30, 2001.

Partial Rescission of Review

    As noted above, Sucorrico informed the Department that it had no 
shipments of subject merchandise to the United States during the POR. 
We have confirmed with the Customs Service that neither Sucorrico nor 
CTM had shipments of subject merchandise during the POR. Therefore, in 
accordance with 19 CFR 351.213(d)(3) and consistent with the 
Department's practice, we are preliminarily 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).)
    In addition, on January 9, 2002, the petitioners withdrew their 
request for an administrative review of Citrovita. Although the 
petitioners asked to withdraw their review request after the 90-day 
time limit specified in 19 CFR 351.213(d)(1), the review for this 
company had not yet progressed beyond a point where it would have been 
unreasonable to allow the petitioners to withdraw their request for 
review. Therefore, in accordance with 19 CFR 351.213(d)(1) and 
consistent with our practice, we are also rescinding our review with 
respect to Citrovita.

Comparison Methodology

    To determine whether sales of FCOJ from Brazil to the United States 
were made at less than normal value (NV), we compared the export price 
(EP) to the NV, as specified in the ``Export Price'' and ``Normal 
Value'' sections of this notice, below.
    When making comparisons in accordance with section 771(16) of the 
Act, we considered all products sold in the home market as described in 
the ``Scope of the Review'' section of this notice, above, that were in 
the ordinary course of trade for purposes of determining appropriate 
product comparisons to U.S. sales.

Level of Trade

    In accordance with section 773(a)(1)(B) of the Act, to the extent 
practicable, we determine NV based on sales in the comparison market at 
the same level of trade as EP. The NV level of trade is that of the 
starting-price sales in the comparison market or, when NV is based on 
CV, that of the sales from which we derive selling, general and 
administrative expenses (SG&A) and profit. For EP, it is also the level 
of the starting-price sales, which is usually from the exporter to the 
importer.
    To determine whether NV sales are at a different level of trade 
than EP sales, we examine stages in the marketing process and selling 
functions along the chain of distribution between the producer and the 
unaffiliated customer. If the comparison-market sales are at a 
different level of trade, and the difference affects price 
comparability, as manifested in a pattern of consistent price 
differences between the sales on which NV is based and comparison-
market sales at the level of trade of the export transaction, we make a 
level-of-trade adjustment under section 773(a)(7)(A) of the Act.
    Branco Peres claimed that it made home market and U.S. sales at 
only one level of trade (i.e., sales to end users). Because Branco 
Peres performed the same selling activities for sales to all customers 
in the home market and the United States, we determined that these 
sales are at the same level of trade. Therefore, no level of trade 
adjustment is warranted for Branco Peres.

Export Price

    For sales by Branco Peres, we based the starting price on EP, in 
accordance with section 772(a) of the Act, because the subject 
merchandise was sold to unaffiliated purchasers in the United States 
prior to importation and because constructed export price methodology 
was not otherwise applicable.
    We based EP on the gross unit price to the first unaffiliated 
purchaser in the United States. Where appropriate, we made deductions 
for foreign inland freight, foreign warehousing expenses and foreign 
brokerage and handling expenses, in accordance with section 
772(c)(2)(A) of the Act. We recalculated warehousing expenses using the 
per-ton amount charged by the warehouse each month and the average 
inventory carrying period reported by Branco Peres.

Normal Value

    In order to determine whether there is a sufficient volume of sales 
in the home market to serve as a viable basis for calculating NV (i.e., 
the aggregate volume of home market sales of the foreign like product 
is greater than five percent of the aggregate volume of U.S. sales), we 
compared the volume of Branco Peres' home market sales of the foreign 
like product to the volume of U.S. sales of subject merchandise, in 
accordance with 19 CFR 351.404(b). Based on this comparison, we 
determined that Branco Peres had a viable home market during the POR. 
Consequently, we based NV on home market sales.

Cost Investigation

    In the eleventh administrative review, which was the most recently 
completed segment of the proceeding involving Branco Peres, the 
Department initiated an investigation to determine whether Branco Peres 
made home market sales during that POR at prices below the cost of 
production (COP). See Frozen Concentrated Orange Juice from Brazil; 
Final Results and Partial Rescission of Antidumping Duty Administrative 
Review, 64 FR 43650, 43652 (August 11, 1999). Even though we resorted 
to the use of total facts available in that review, we were able to 
complete the cost investigation because we were able to use the data 
provided by the petitioner to perform the cost test. Consequently, 
because the Department disregarded certain sales that failed the cost 
test in that review, pursuant to section 773(b)(2)(A)(ii) of the Act, 
we initiated a cost investigation on Branco Peres at the time we 
initiated this antidumping review because there were reasonable grounds 
to believe or suspect that Branco Peres had made home market sales 
below its COP.

[[Page 18861]]

    In this review, we calculated the COP based on the sum of Branco 
Peres' costs of materials and fabrication for the foreign like product, 
plus amounts for general and administrative and financing expenses, in 
accordance with section 773(b)(3) of the Act. We made the following 
adjustments to the reported cost data:
1. We increased the cost of raw materials to account for certain 
purchases of oranges recognized as an expense during the POR, as well 
as certain payments made to a company for which Branco Peres provided 
tolling services;
2. We deducted the net amount of PIS and COFINS taxes charged on home 
market sales revenue which was included in COP;
3. We deducted PIS and COFINS taxes from the reported offset for by-
product revenue;
4. We allocated the cost of processing equally to tolled and non-tolled 
products; and
5. We disallowed income from certain long-term loans as an offset to 
Branco Peres's financing expenses. In addition, we disallowed a 
deduction for PIS and COFINS taxes paid on financial income. We 
recalculated financing expenses accordingly.
    We compared the COP to home market 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. On 
a product-specific basis, we compared the COP to home market prices, 
less any applicable movement charges, selling expenses, and packing 
costs.
    In determining whether to disregard home 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 company's sales of a given product are made at prices less 
than the COP, we do not disregard any below-cost sales of that product 
because we determine that the below-cost sales were not made in 
``substantial quantities.'' Where 20 percent or more of Branco Peres' 
sales of a given product were at prices below the COP, we find that 
sales of the merchandise were made in ``substantial quantities'' within 
an extended period of time, as defined in sections 773(b)(2)(B) and (C) 
of the Act. In this case, we also determine whether such sales were 
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.
    We found that 100 percent of Branco Peres' home market sales were 
made at prices above the cost of production. Therefore, we did not 
disregard any home market sales. Accordingly, we based NV on delivered 
prices to home market customers because we found that all home market 
sales were in the ordinary course of trade. We made deductions from the 
starting price for taxes in accordance with section 773(a)(6)(B)(iii) 
of the Act. See Notice of Preliminary Determination of Sales at Less 
Than Fair Value and Postponement of Final Determination: Carbon and 
Certain Alloy Steel Wire Rod from Brazil issued on April 1, 2002.
    Pursuant to section 773(a)(6)(C)(iii) of the Act and 19 CFR 
351.410(c), we made a circumstance-of-sale adjustment for credit 
expenses. We recalculated credit expenses to use the average interest 
rate for the POR, rather than the annualized monthly rate reported by 
Branco Peres.
    We also deducted home market packing costs and added U.S. packing 
costs in accordance with sections 773(a)(6)(A) and (B) of the Act.

Currency Conversion

    We made currency conversions into U.S. dollars in accordance with 
section 773A(a) 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.
    Section 773A(a) of the Act directs the Department to use a daily 
exchange rate in order to convert foreign currencies into U.S. dollars 
unless the daily rate involves a fluctuation. It is the Department's 
practice to find that a fluctuation exists when the daily exchange rate 
differs from the benchmark rate by 2.25 percent. The benchmark is 
defined as the moving average of rates for the past 40 business days. 
When we determine a fluctuation to have existed, we substitute the 
benchmark for the daily rate, in accordance with established practice.

Preliminary Results of Review

    As a result of our review, we preliminarily determine that the 
following margin exists for the period May 1, 2000, through April 30, 
2001:

------------------------------------------------------------------------
                 Manufacturer/Exporter                    Percent Margin
------------------------------------------------------------------------
Branco Peres Citrus S.A................................             0.00
------------------------------------------------------------------------

    The Department will disclose to parties the calculations performed 
in connection with these preliminary results within five days of the 
date of publication of this notice. Interested parties may request a 
hearing within 30 days of the date of publication. Any hearing, if 
requested, will be held seven days after the date rebuttal briefs are 
filed. Interested parties may submit case briefs not later than 30 days 
after the date of publication of this notice. Rebuttal briefs, limited 
to issues raised in the case briefs, may be filed not later than 37 
days after the date of publication of this notice. The Department will 
publish a notice of the final results of this administrative review, 
which will include the results of its analysis of issues raised in any 
such case briefs, within 120 days of the publication of these 
preliminary results.
    Upon completion of this administrative review, the Department shall 
determine, and the Customs Service shall assess, antidumping duties on 
all appropriate entries. We have calculated importer-specific 
assessment rates for the merchandise in question by aggregating the 
dumping margins calculated for all U.S. sales to each importer and 
dividing this amount by the total quantity of those sales. The 
assessment rate will be assessed uniformly on all entries of that 
particular importer made during the POR, where appropriate. The 
Department will issue appraisement instructions directly to the Customs 
Service.
    Further, 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 for by section 751(a)(1) of 
the Act: 1) the cash deposit rates for Branco Peres will be the rate 
established in the final results of this review, except if the rate is 
less than 0.50 percent and, therefore, de minimis within the meaning of 
19 CFR 351.106, the cash deposit will be zero; 2) 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; 3) if the exporter is not a firm covered in this 
review, a prior review, or the 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 4) the cash deposit rate for all other 
manufacturers or exporters will continue to be 1.96

[[Page 18862]]

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 preliminary 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 administrative review and notice are in accordance with 
sections 751(a)(1) and 777(i)(1) of the Act.

    Dated: April 10, 2002
Faryar Shirzad,
Assistant Secretary for Import Administration.
[FR Doc. 02-9332 Filed 4-16-02; 8:45 am]
BILLING CODE 3510-DS-S