[Federal Register Volume 70, Number 163 (Wednesday, August 24, 2005)]
[Notices]
[Pages 49557-49566]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E5-4633]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-351-840]


Notice of Preliminary Determination of Sales at Less Than Fair 
Value, Postponement of Final Determination, and Affirmative Preliminary 
Critical Circumstances Determination: Certain Orange Juice from Brazil

AGENCY: Import Administration, International Trade Administration, 
Department of Commerce.
SUMMARY: We preliminarily determine that certain orange juice from 
Brazil is being, or is likely to be, sold in the United States at less 
than fair value, as provided in section 733(b) of the Tariff Act of 
1930, as amended (the Act). In addition, we preliminarily determine 
that there is a reasonable basis to believe or suspect that critical 
circumstances exist with respect to the subject merchandise exported 
from Brazil.
    Interested parties are invited to comment on this preliminary 
determination. Because we are postponing the final determination, we 
will make our final determination not later than 135 days after the 
date of publication of this preliminary determination in the Federal 
Register.

EFFECTIVE DATE: August 24, 2005.

FOR FURTHER INFORMATION CONTACT: Elizabeth Eastwood or Jill Pollack, 
AD/CVD Operations, Office 2, Import Administration, International Trade 
Administration, U.S. Department of Commerce, 14th Street and 
Constitution Avenue, NW, Washington, DC 20230; telephone: (202) 482-
3874 or (202) 482-4593, respectively.

SUPPLEMENTARY INFORMATION:

Preliminary Determination

    We preliminarily determine that certain orange juice from Brazil is 
being, or is likely to be, sold in the United States at less than fair 
value (LTFV), as provided in section 733 of the Act. The estimated 
margins of sales at LTFV are shown in the ``Suspension of Liquidation'' 
section of this notice. In addition, we preliminarily determine that 
there is a reasonable basis to believe or suspect that critical 
circumstances exist with respect to the subject merchandise exported 
from Brazil. The critical circumstances analysis for the preliminary 
determination is discussed below under the section ``Critical 
Circumstances.''

Background

    Since the initiation of this investigation (see Notice of 
Initiation of Antidumping Duty Investigation: Certain Orange Juice from 
Brazil, 70 FR 7233 (Feb. 11, 2005) (Initiation Notice)), the following 
events have occurred.
    On March 3, 2005, the United States International Trade Commission 
(ITC) preliminarily determined that there is a reasonable indication 
that imports of certain orange juice from Brazil are materially 
injuring the United States industry. See ITC Investigation No. 731-TA-
1089.
    On March 7, 2005, we selected Sucocitrico Cutrale, S.A. (Cutrale), 
the largest producer/exporter of certain orange juice from Brazil, as a 
mandatory respondent in this proceeding and issued Cutrale an 
antidumping questionnaire.
    On March 14, 2005, we also selected the two next largest producers/
exporters of certain orange juice from Brazil (i.e., Fischer S/A - 
Agroindustria (Fischer) and Montecitrus Industria e Comercio Limitada 
(Montecitrus)) as mandatory respondents in this proceeding. See the 
March 14, 2005, memorandum to Louis Apple, Director, Office 2, from 
Elizabeth Eastwood, Jill Pollack, Nichole Zink, and Ryan Douglas 
entitled, ``Antidumping Duty Investigation of Certain Orange Juice from 
Brazil - Selection of Respondents.'' We issued antidumping 
questionnaires to these exporters on March 14, 2005.
    On March 31, 2005, the petitioners\1\ requested that the Department 
``clarify'' the scope of the instant investigation to include exports 
of FCOJM from producers and exporters previously covered by a separate 
antidumping duty order on frozen concentrated orange juice (FCOJ) from 
Brazil. From April 4 through April 14, 2005, we received comments on 
the petitioners' request from various Brazilian orange juice producers, 
as well as additional comments from the petitioners.
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    \1\ The petitioners in this investigation are the Florida Citrus 
Mutual, A. Duda & Sons, Inc. (doing business as Citrus Belle), 
Citrus World, Inc., and Southern Garden Citrus Processing 
Corporation (doing business as Southern Gardens).
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    On April 11, 2005, Cutrale requested that the Department revise the 
period of investigation (POI) in this proceeding.
    We received section A questionnaire responses from Cutrale and 
Fischer on April 11, 2005. On April 15 and 18, 2005, respectively, the 
Department issued supplemental section A questionnaires to Fischer and 
Cutrale. On April 19, 2005, we received a section A questionnaire 
response from Montecitrus.
    On April 22, 2005, we rejected Cutrale's request to revise the POI. 
See the April 22, 2005, memorandum to Louis Apple, Director, Office 2, 
from Jill

[[Page 49558]]

Pollack, Analyst, entitled, ``Request by Sucocitrico Cutrale Ltda. for 
a Revised Period of Investigation in the Antidumping Duty Investigation 
of Certain Orange Juice from Brazil.''
    We received section B and C questionnaire responses from Cutrale 
and Fischer on April 27, and 29, 2005, respectively.
    On May 5 and 6, 2005, respectively, we issued a second supplemental 
section A questionnaire to Cutrale, and a supplemental questionnaire 
regarding sections B and C to Fischer.
    On May 6, 2005, Cutrale and Fischer submitted responses to the 
Department's first supplemental section A questionnaires.
    On May 9, 2005, Montecitrus withdrew its participation from this 
antidumping proceeding and requested that the Department remove from 
the record of this proceeding all documents containing business 
proprietary information submitted by or on behalf of Montecitrus. On 
May 26, 2005, we certified to the destruction of all business 
proprietary information.
    On May 11 and 16, 2005, respectively, the petitioners alleged that 
Cutrale and Fischer made home market sales below the cost of production 
(COP) and, therefore, requested that the Department initiate a sales-
below-cost investigation of these respondents.
    On May 12, 2005, Cutrale submitted its response to the Department's 
second supplemental section A questionnaire.
    On May 23 and 31, 2005, respectively, we initiated sales-below-cost 
investigations for Cutrale and Fischer and, as a result, requested that 
Cutrale and Fischer respond to section D of the questionnaire. See the 
May 23, 2005, memorandum to Louis Apple, Director, Office 2, from 
Nichole Zink, Analyst, entitled, ``Petitioners' Allegation of Sales 
Below the Cost of Production for Sucocitrico Cutrale Ltda'' (Cutrale 
Cost Initiation Memo) and May 31, 2005, memorandum to Louis Apple, 
Director, Office 2, from Elizabeth Eastwood, Senior Analyst, entitled, 
``Petitioners' Allegation of Sales Below the Cost of Production for 
Fischer S/A-Agroind[uacute]stria'' (Fischer Cost Initiation Memo).
    On May 27, 2005, we issued a second supplemental section A 
questionnaire to Fischer.
    On June 2, 2005, the petitioners made a timely request pursuant to 
19 CFR 351.205(e) for a 50-day postponement of the preliminary 
determination, pursuant to section 733(c)(1)(A) of the Act. The 
petitioners stated that a postponement of the preliminary determination 
was necessary in order to permit the Department and the petitioners to 
fully analyze the information that had been submitted in the 
investigation and to analyze cost information.
    On June 7 and 9, 2005, respectively, we issued a supplemental 
questionnaire regarding sections B and C to Cutrale and a supplemental 
questionnaire regarding section B to Fischer.
    On June 10, 2005, Fischer submitted its response to the 
Department's second supplemental section A questionnaire.
    On June 7, 2005, pursuant to sections 733(c)(1)(A) and (b)(1) of 
the Act and 19 CFR 351.205(f), the Department postponed the preliminary 
determination until no later than August 16, 2005. See Postponement of 
Preliminary Determination of Antidumping Duty Investigation: Certain 
Orange Juice from Brazil, 70 FR 34086 (June 13, 2005).
    On June 21, 2005, Cutrale submitted its response to the 
Department's section D questionnaire.
    On June 24, 2005, we issued a supplemental section C questionnaire 
to Fischer.
    On June 27, 2005, we informed the petitioners that in order for the 
Department to consider revising the scope of this proceeding, they 
would need to amend the original petition. For further discussion, see 
the ``Scope Comments'' section of this notice below.
    On June 28, 2005, Fischer submitted its response to the 
Department's section D questionnaire.
    On June 29, 2005, the Department issued its third supplemental 
section A questionnaire to Fischer.
    On July 1, 2005, Fischer responded to the Department's supplemental 
section B questionnaire. On July 5, 2005, Cutrale responded to the 
Department's supplemental sections B and C questionnaire.
    On July 13, 2005, Fischer submitted its response to the 
Department's third supplemental section A questionnaire.
    On July 14, 2005, we issued a supplemental section D questionnaire 
to Fischer.
    On July 22, 2005, Fischer submitted its response to the 
Department's supplemental section C questionnaire.
    On July 25, 2005, the petitioners alleged that critical 
circumstances exist with respect to imports of certain orange juice 
from Brazil. Accordingly, pursuant to section 732(e) of the Act, on 
July 28, 2005, we requested information from Cutrale and Fischer 
regarding monthly shipments to the United States during the period June 
2001 through June 2005.
    On July 26, 2005, and August 4, 2005, respectively, Cutrale and 
Fischer submitted their responses to the Department's supplemental 
section D questionnaires.
    On August 1 and 2, 2005, respectively, Cutrale and Fischer 
requested that the Department postpone its final determination in the 
event of an affirmative preliminary determination, in accordance with 
section 735(a)(2) of the Act.
    On August 3, 2005, we issued a second supplemental questionnaire 
regarding sections B and C to Cutrale. On August 10, 2005, we issued 
additional supplemental questionnaires to both respondents. Because the 
deadline for this information is after the date of the preliminary 
determination, we will consider it for the final determination.
    On August 11, 2005, we received monthly shipment information from 
Cutrale and Fischer. Because this information was received too late for 
use in the preliminary determination, we will consider it in the final 
determination. The critical circumstances analysis for the preliminary 
determination is discussed below under ``Critical Circumstances.''

Postponement of Final Determination

    Section 735(a)(2) of the Act provides that a final determination 
may be postponed until not later than 135 days after the date of the 
publication of the preliminary determination if, in the event of an 
affirmative preliminary determination, a request for such postponement 
is made by exporters who account for a significant proportion of 
exports of the subject merchandise, or in the event of a negative 
preliminary determination, a request for such postponement is made by 
the petitioner. The Department's regulations, at 19 CFR 351.210(e)(2), 
require that requests by respondents for postponement of a final 
determination be accompanied by a request for extension of provisional 
measures from a four-month period to not more than six months.
    Pursuant to section 735(a)(2) of the Act, on August 1 and August 2, 
2005, respectively, Cutrale and Fischer requested that, in the event of 
an affirmative preliminary determination in this investigation, the 
Department postpone its final determination until not later than 135 
days after the date of the publication of the preliminary determination 
in the Federal Register, and extend the provisional measures to not 
more than six months. In accordance with 19 CFR 351.210(b), because (1) 
our preliminary determination is affirmative, (2) Cutrale and Fischer 
account for a significant proportion of exports of the subject 
merchandise, and (3) no compelling reasons for denial exist, we are 
granting the respondents' request and are

[[Page 49559]]

postponing the final determination until no later than 135 days after 
the publication of this notice in the Federal Register. Suspension of 
liquidation will be extended accordingly.

Period of Investigation

    The POI is October 1, 2003, through September 30, 2004. This period 
corresponds to the four most recent fiscal quarters prior to the month 
of the filing of the petition (i.e., December 2004).

Scope of Investigation

    The scope of this investigation includes certain orange juice for 
transport and/or further manufacturing, produced in two different 
forms: (1) frozen orange juice in a highly concentrated form, sometimes 
referred to as FCOJM; and (2) pasteurized single-strength orange juice 
which has not been concentrated, referred to as NFC.
    At the time of the filing of the petition, there was an existing 
antidumping duty order on FCOJ from Brazil. See Antidumping Duty Order; 
Frozen Concentrated Orange Juice from Brazil, 52 FR 16426 (May 5, 
1987). Therefore, the scope of this investigation with regard to FCOJM 
covers only FCOJM produced and/or exported by those companies which 
were excluded or revoked from the pre-existing antidumping order on 
FCOJ from Brazil as of December 27, 2004. Those companies are Cargill 
Citrus Limitada, Cutrale, Fischer\2\, and Montecitrus.
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    \2\ At the time of this company's revocation, this company was 
doing business under the name Citrosuco Paulista S.A. (Citrosuco). 
See the ``Successor-in-Interest'' section of this notice, below, for 
further discussion.
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    The Department also revoked the pre-existing antidumping duty order 
on FCOJ with regard to two additional companies, Coopercitrus 
Industrial Frutesp (Frutesp) and Frutropic S.A. (Frutropic). See Frozen 
Concentrated Orange Juice; Final Results and Termination in Part of 
Antidumping Duty Administrative Review; Revocation in Part of the 
Antidumping Duty Order, 56 FR 52510 (Oct. 21, 1991), and Frozen 
Concentrated Orange Juice; Final Results of Antidumping Duty 
Administrative Review and Revocation of Order in Part, 59 FR 53137 
(Oct. 21, 1994). After revocation, both of these companies experienced 
changes in their corporate organization and are now doing business 
under the name COINBRA-Frutesp. Therefore, in order to determine 
whether these companies are subject to this proceeding, the Department 
must make successor-in-interest findings with respect to each entity. 
We intend to make such findings no later than the final determination 
in this case. We note that, should the Department find COINBRA-Frutesp 
to be the successor-in-interest to one or both of these companies, 
exports of FCOJM by the successor company will be included in this 
proceeding. See the ``Successor-in-Interest'' section of this notice, 
below, for further discussion.
    Excluded from the scope of the investigation are reconstituted 
orange juice and frozen concentrated orange juice for retail (FCOJR). 
Reconstituted orange juice is produced through further manufacture of 
FCOJM, by adding water, oils and essences to the orange juice 
concentrate. FCOJR is concentrated orange juice, typically at 42[deg] 
Brix, in a frozen state, packed in retail-sized containers ready for 
sale to consumers. FCOJR, a finished consumer product, is produced 
through further manufacture of FCOJM, a bulk manufacturer's product.
    The subject merchandise is currently classifiable under subheadings 
2009.11.00, 2009.12.25, 2009.12.45, and 2009.19.00 of the Harmonized 
Tariff Schedule of the United States (HTSUS). These HTSUS subheadings 
are provided for convenience and for customs purposes only and are not 
dispositive. Rather the written description of the scope of this 
investigation is dispositive.

Successor-in-Interest

    As noted above, at the time of the filing of the petition, there 
was an existing antidumping duty order on FCOJ from Brazil. Therefore, 
the scope with regard to FCOJM covers only FCOJM produced and/or 
exported by those companies which were excluded or revoked from the 
pre-existing antidumping order on FCOJ from Brazil as of December 27, 
2004. Three of the revoked companies, Citrosuco, Frutesp, and 
Frutropic, informed the Department that they have undergone certain 
ownership changes since the time of their revocation and are now doing 
business under different names. In our notice of initiation, we 
indicated that we intended to make successor-in-interest determinations 
with respect to these companies in order to determine if the FCOJM 
exports of the ``new'' companies fall within the scope of this 
proceeding.
    Regarding Citrosuco, prior to the initiation of this investigation, 
Citrosuco informed the Department that it is now doing business under 
the name Fischer, and it claimed that Fischer is the successor-in-
interest to Citrosuco. On March 8, 2005, we issued a separate 
questionnaire to Fischer relating to the successor-in-interest issue. 
On April 11, 2005, Fischer submitted its response. Based on our 
analysis of this submission, we find that the company's organizational 
structure, management, production facilities, supplier relationships, 
and customers have remained essentially unchanged. Furthermore, Fischer 
has provided sufficient documentation of its name change. Based on all 
the evidence reviewed, we find that Fischer operates as the same 
business entity as Citrosuco. Thus, we find that Fischer is the 
successor-in-interest to Citrosuco and, as a consequence, its exports 
of FCOJM are subject to this proceeding. For further discussion, see 
the August 16, 2005, memorandum to Joseph A. Spetrini, Acting Assistant 
Secretary, from Barbara E. Tillman, Acting Deputy Assistant Secretary, 
entitled, ``Successor-In-Interest Determination for Fischer S.A. 
Agroindustria in the Less-Than-Fair-Value Investigation on Certain 
Orange Juice from Brazil.''
    Regarding Frutesp and Frutropic, these entities were purchased by 
the Louis Dreyfus group in the early 1990's and they are now producing 
and exporting FCOJM under the name COINBRA-Frutesp. Because the 
corporate structure changes for these companies are not recent and 
involve complex transactions, additional consideration is required to 
determine their successor-in-interest status. Accordingly, we intend to 
make our successor-in-interest findings no later than the final 
determination.

Scope Comments

    In accordance with the preamble to our regulations, we set aside a 
period of time for parties to raise issues regarding product coverage 
and encouraged all parties to submit comments no later than April 1, 
2005. (See Antidumping Duties; Countervailing Duties; Final Rule, 62 FR 
27296, 27323 (May 19, 1997) and Initiation Notice at 70 FR 7234.)
    As noted in the ``Background'' section above, on March 31, 2005, 
the petitioners requested that the Department clarify the scope of the 
investigation to include exports of FCOJM from producers and exporters 
previously covered by a separate antidumping duty order on FCOJ from 
Brazil. We received additional comments from the following interested 
parties on this issue: Citrovita Agro Industrial Ltda. (Citrovita), 
COINBRA-Frutesp, Cutrale, Louis Dreyfus Citrus, Inc., and Montecitrus. 
On June 27, 2005, we notified the petitioners that in order for the 
Department to consider revising the scope of the instant investigation 
as requested, the petitioners would need to

[[Page 49560]]

amend the original petition. Because the petitioners have not submitted 
such an amendment, we have continued to define the scope of this 
investigation as initiated.
    On April 1, 2005, Cutrale agreed with the Department's initial 
treatment of FCOJM and NFC as a single class or kind of merchandise.
    On May 10, 2005, U.S. Customs and Border Protection (CBP) raised 
concerns that the scope as currently drafted could encompass 
merchandise other than FCOJM and NFC, under the HTSUS subheadings for 
reconstituted juice and non-orange juice products ``other'' (i.e., 
2009.12.45 and 2009.19.00). Therefore, CBP recommended removing these 
HTSUS subheadings from the scope of the instant investigation. See the 
May 10, 2005, memorandum to the file, from Jill Pollack, Analyst, 
entitled: ``Conversation with Customs Official Regarding the Harmonized 
Tariff Schedule (HTS) Codes Included in the Scope of the Antidumping 
Duty Investigation of Certain Orange Juice from Brazil (A-351-840).'' 
On May 31, 2005, the petitioners opposed this request on the grounds 
that both of the HTSUS subheadings cover orange juice products that 
lack specific HTSUS numbers, but which are included in the written 
description of the scope. Therefore, the petitioners maintain these 
subheadings should be retained in order to alleviate circumvention 
concerns. After considering the petitioners' comments, we find that it 
is appropriate to continue to include the HTSUS subheadings in question 
in the scope description set forth above.

Use of Facts Available (FA) for Montecitrus

    One of the mandatory respondents in this case, Montecitrus, 
notified the Department on May 9, 2005, that it no longer intended to 
participate in the investigation. Section 776(a)(2) of the Act provides 
that, if an interested party: (A) withholds information requested by 
the Department, (B) fails to provide such information by the deadline, 
or in the form or manner requested, (C) significantly impedes a 
proceeding, or (D) provides information that cannot be verified, the 
Department shall use, subject to sections 782(d) and (e) of the Act, 
facts otherwise available in reaching the applicable determination.
    In the instant investigation, by withdrawing its information from 
the record, the Department preliminarily finds that, pursuant to 
section 776(a)(2)(A), Montecitrus withheld requested information. 
Further, pursuant to section 776(a)(2)(B), the Department preliminarily 
determines Montecitrus failed to provide the information requested by 
the Department within the established deadlines. Finally, by 
withdrawing from the investigation and ceasing to participate in the 
proceeding, the Department preliminarily finds that, pursuant to 
section 776(a)(2)(C), Montecitrus significantly impeded the 
investigation. Consequently, pursuant to sections 776(a)(2)(A)-(C) of 
the Act, the Department preliminarily finds that the application of 
facts available is warranted.
    In selecting from among the facts otherwise available, section 
776(b) of the Act authorizes the Department to use an adverse inference 
if the Department finds that an interested party failed to cooperate by 
not acting to the best of its ability to comply with a request for 
information. See, e.g., Notice of Final Determination of Sales of Less 
Than Fair Value and Final Negative Critical Circumstances: Carbon and 
Certain Alloy Steel Wire Rod from Brazil, 67 FR 55792, 55794-96 (Aug. 
30, 2002). To examine whether the respondent cooperated by acting to 
the best of its ability under section 776(b) of the Act, the Department 
considers, inter alia, the accuracy and completeness of submitted 
information and whether the respondent has hindered the calculation of 
accurate dumping margins. See, e.g., Notice of Final Determination of 
Sales at Less Than Fair Value: Certain Cold-Rolled Flat-Rolled Carbon 
Quality Steel Products From Brazil, 65 FR 5554, 5567 (Feb. 4, 2000). In 
the instant investigation, by ceasing to participate in the 
investigation, Montecitrus decided not to cooperate and thus did not 
act to the best of its ability to comply with a request for 
information. Consequently, we find that an adverse inference is 
warranted in determining an antidumping duty margin for Montecitrus.
    Sections 776(b) and (c) of the Act authorize the Department to use, 
as adverse facts available (AFA), information derived from the 
petition, a final investigation determination, a previous 
administrative review, or any other information placed on the record. 
The Department's practice when selecting an adverse rate from among the 
possible sources of information is to ensure that the margin is 
sufficiently adverse to induce respondents to provide the Department 
with complete and accurate information in a timely manner.'' See, e.g., 
Carbon and Certain Alloy Steel Wire Rod from Brazil: Notice of Final 
Determination of Sales at Less Than Fair Value and Final Negative 
Critical Circumstances, 67 FR 55792 (Aug. 30, 2002); Static Random 
Access Memory Semiconductors from Taiwan: Final Determination of Sales 
at Less than Fair Value, 63 FR 8909 (Feb. 23, 1998). The Department 
applies AFA ``to ensure that the party does not obtain a more favorable 
result by failing to cooperate than if it had cooperated fully.'' See 
Statement of Administrative Action accompanying the Uruguay Round 
Agreements Act, H.R. Doc. No. 103-316, vol. 1, at 870 (1994) (SAA).
    In accordance with our standard practice, as AFA, we are assigning 
Montecitrus a rate which is the higher of: (1) The highest margin 
stated in the notice of initiation (i.e., the recalculated petition 
margin); or (2) the highest margin calculated for any respondent in 
this investigation. See, e.g., Notice of Final Determination of Sales 
at Less Than Fair Value: Purified Carboxymethylcellulose From Sweden, 
70 FR 28278 (May 17, 2005). In this case, the preliminary AFA margin is 
60.29 percent, which is the highest margin stated in the notice of 
initiation. See Initiation Notice, 70 FR at 7236. We find that this 
rate is sufficiently high as to effectuate the purpose of the facts 
available rule (i.e., to encourage participation in future segments of 
this proceeding).

Corroboration of Information

    Section 776(b) of the Act authorizes the Department to use as AFA 
information derived from the petition, or any other information placed 
on the record. Section 776(c) of the Act requires the Department to 
corroborate, to the extent practicable, secondary information used as 
FA. Secondary information is defined as ``{i{time} nformation derived 
from the petition that gave rise to the investigation or review, the 
final determination concerning the subject merchandise, or any previous 
review under section 751 concerning the subject merchandise.'' See 19 
CFR 351.308 (c) and (d); see also the SAA at 870.
    The SAA clarifies that ``corroborate'' means that the Department 
will satisfy itself that the secondary information to be used has 
probative value. See the SAA at 870. The SAA also states that 
independent sources used to corroborate such evidence may include, for 
example, published price lists, official import statistics and customs 
data, and information obtained from interested parties during the 
particular investigation. Id. To corroborate secondary information, the 
Department will, to the extent practicable, examine the reliability and 
relevance of the information used.

[[Page 49561]]

    In order to determine the probative value of the margins in the 
petition for use as AFA for purposes of this preliminary determination, 
we used information submitted by the two participating respondents 
(i.e., Cutrale and Fischer) in their questionnaire responses on the 
record of this investigation. We reviewed the adequacy and accuracy of 
the information in the petition during our pre-initiation analysis of 
the petition, to the extent appropriate information was available for 
this purpose (see the February 7, 2005, Initiation Checklist). In 
accordance with section 776(c) of the Act, to the extent practicable, 
we examined the key elements of the export price (EP) and constructed 
value (CV) calculation on which the highest margin in the petition was 
based.
    In order to corroborate the petition's EP calculation, we compared 
the PIERS data for FCOJM provided by the petitioners in their February 
3, 2005, petition supplement to the prices of FCOJM reported by Cutrale 
and Fischer. These prices are comparable to the PIERS data reported by 
the petitioners, thus corroborating the petition U.S. price data. In 
addition, the petitioners calculated a net U.S. price by deducting 
foreign inland freight and insurance, brokerage, handling, and port 
charges from the PIERS data used to derive U.S. price. We corroborated 
these expense amounts by comparing them to the expenses reported by 
Cutrale and Fischer in their questionnaire responses. In order to 
corroborate the petitioners' CV calculation, we compared the 
petitioners' CV data for FCOJM, as adjusted in the notice of 
initiation, to the CV data reported by the respondents for FCOJM. As 
discussed in the August 16, 2005, memorandum to the file from Nichole 
Zink, Analyst, entitled, ``Corroboration of Data Contained in the 
Petition for Assigning Facts Available Rates'' (Corroboration Memo), we 
find that the figure used by the petitioners is comparable to the 
information reported by Cutrale and Fischer, thus corroborating the 
petition cost data. Therefore, we preliminarily determine that the 
petition EP and CV information has probative value. Accordingly, we 
find that the highest margin stated in the notice of initiation, 60.29 
percent, is corroborated within the meaning of section 776(c) of the 
Act. For further discussion, see the Corroboration Memo.

Fair Value Comparisons

    To determine whether sales of certain orange juice from Brazil to 
the United States were made at LTFV, we compared the constructed export 
price (CEP) to the normal value (NV), as described in the ``Constructed 
Export Price'' and ``Normal Value'' sections of this notice, below. In 
accordance with section 777A(d)(1)(A)(i) of the Act, we compared POI 
weighted-average CEPs to POI weighted-average NVs.

Product Comparisons

    In accordance with section 771(16) of the Act, we considered all 
products produced and sold by Cutrale and Fischer in the home market 
during the POI that fit the description in the ``Scope of 
Investigation'' section of this notice to be foreign like products for 
purposes of determining appropriate product comparisons to U.S. sales. 
We compared U.S. sales to sales made in the home market, where 
appropriate. Where there were no sales of identical merchandise in the 
home market made in the ordinary course of trade to compare to U.S. 
sales, we compared U.S. sales to sales of the most similar foreign like 
product made in the ordinary course of trade. In making the product 
comparisons, we matched foreign like products based on the physical 
characteristics reported by the respondents in the following order of 
importance: product type and organic designation. Where there were no 
sales of identical or similar merchandise made in the ordinary course 
of trade, we made product comparisons using CV.

Constructed Export Price

A. Cutrale
    In accordance with section 772(b) of the Act, we calculate CEP for 
those sales where the merchandise was first sold (or agreed to be sold) 
in the United States before or after the date of importation by or for 
the account of the producer or exporter, or by a seller affiliated with 
the producer or exporter, to a purchaser not affiliated with the 
producer or exporter. In this case, we are treating all of Cutrale's 
U.S. sales as CEP sales because they were made in the United States by 
Cutrale's U.S. affiliates on behalf of Cutrale, within the meaning of 
section 772(b) of the Act. We excluded certain U.S. sales made pursuant 
to futures contracts from our analysis including: 1) sales to the New 
York Board of Trade (NYBOT) that have not been shipped as of the date 
of the preliminary determination because the country of origin of the 
merchandise is not yet known; and 2) sales that were destined for 
Canada.
    For sales made pursuant to futures contracts, we are considering 
using as date of sale the date of the ``sell'' contract which resulted 
in the delivery of merchandise. However, although Cutrale reported the 
date of these ``sell'' contracts in its most recent U.S. sales listing, 
this information was not received in time for use in the preliminary 
determination. For purposes of this preliminary determination, as date 
of sale, we used the date the futures contract was either: 1) noticed 
for delivery to the NYBOT, in the case of sales to the NYBOT; or 2) the 
date the NYBOT was notified that certain futures contracts were to be 
applied in an ``exchange for physicals'' transaction. We intend to 
further examine the issue of the appropriate date of sale for futures 
contracts for the final determination. In accordance with our practice, 
for all other CEP sales, we used the earlier of shipment date from the 
U.S. affiliate to the customer or the U.S. affiliate's invoice date as 
the date of sale because these were the dates on which the material 
terms of sale were finalized. See, e.g., Notice of Final Determination 
of Sales at Less Than Fair Value: Structural Steel Beams from Germany, 
67 FR 35497 (May 20, 2002), and accompanying ``Issues and Decision 
Memorandum'' at Comment 2.
    We based CEP on the packed delivered prices to unaffiliated 
purchasers in the United States. For sales made pursuant to futures 
contracts, we adjusted the reported gross unit price (i.e., the notice 
price) to include gains and losses incurred on the futures contract 
which resulted in the shipment of subject merchandise. All other gains 
and losses related to futures trading activities have been included in 
indirect selling expenses (see discussion on indirect selling expenses 
below). Where appropriate, we made adjustments for billing adjustments 
and early payment discounts.
    In addition, we made deductions for movement expenses, in 
accordance with section 772(c)(2)(A) of the Act; these included, where 
appropriate, foreign inland freight, foreign warehousing expenses, 
foreign brokerage and handling expenses, ocean freight, U.S. brokerage 
and handling, U.S. customs duties (including harbor maintenance fees 
and merchandise processing fees), U.S. inland freight expenses (i.e., 
freight from port to warehouse), and U.S. warehousing expenses. 
Regarding U.S. customs duties, Cutrale reported that it received 
certain ``drawback'' amounts associated with duties paid on U.S. sales 
and subsequently refunded under a U.S. duty drawback program. However, 
because Cutrale has provided an insufficient link between the amount of 
U.S. duties paid and the duty drawback received, we disallowed the 
``drawback'' amounts reported by Cutrale for the preliminary 
determination. We have requested

[[Page 49562]]

additional information from Cutrale regarding this program and will 
consider it in our final determination.
    In accordance with section 772(d)(1) of the Act and 19 CFR 
351.402(b), we deducted those selling expenses associated with economic 
activities occurring in the United States, including direct selling 
expenses (i.e., bank charges, commissions, imputed credit expenses, and 
repacking), and indirect selling expenses (including inventory carrying 
costs, gains and losses on ``rolled over'' futures contracts, and other 
indirect selling expenses). In instances where the information reported 
in Cutrale's sales listing differed from that reflected in its 
narrative, we relied on the narrative information. For further 
discussion, see the August 16, 2005, memorandum to the file, from Jill 
Pollack entitled, ``Calculations performed for Sucocitrico Cutrale 
Ltda. in the Investigation of Certain Orange Juice from Brazil'' 
(Cutrale calculation memo).
    Pursuant to section 772(d)(3) of the Act, we further reduced the 
starting price by an amount for profit to arrive at CEP. In accordance 
with section 772(f) of the Act, we calculated the CEP profit rate using 
the expenses incurred by Cutrale and its U.S. affiliates on their sales 
of the subject merchandise in the United States and the profit 
associated with those sales.
B. Fischer
    In accordance with section 772(b) of the Act, we calculate CEP for 
those sales where the merchandise was first sold (or agreed to be sold) 
in the United States before or after the date of importation by or for 
the account of the producer or exporter, or by a seller affiliated with 
the producer or exporter, to a purchaser not affiliated with the 
producer or exporter. In this case, we are treating all of Fischer's 
U.S. sales as CEP sales because they were made in the United States by 
Fischer's U.S. affiliate on behalf of Fischer, within the meaning of 
section 772(b) of the Act. We preliminarily determine that invoice date 
is the appropriate date of sale because that is the date that the 
material terms of sale are agreed upon. See 19 CFR 351.401(i).
    We based CEP on the packed delivered prices to unaffiliated 
purchasers in the United States. Where appropriate, we made adjustments 
for rebates. We made deductions for movement expenses, in accordance 
with section 772(c)(2)(A) of the Act; these included, where 
appropriate, foreign inland freight expenses, foreign warehousing 
expenses, foreign brokerage and handling expenses, ocean freight 
expenses, bunker fuel surcharges, marine insurance expenses, U.S. 
brokerage and handling expenses, U.S. customs duties (including harbor 
maintenance fees and merchandise processing fees), U.S. inland freight 
expenses (i.e., freight from port to warehouse or to customer), and 
U.S. warehousing expenses. Regarding U.S. customs duties, Fischer also 
reported that it received certain ``drawback'' amounts related to U.S. 
sales. However, because Fischer has provided an insufficient link 
between the amount of U.S. duties paid and the duty drawback received, 
we disallowed the ``drawback'' amounts reported by Fischer for the 
preliminary determination. We have requested additional information 
from Fischer regarding the U.S. duty drawback program and will consider 
it for the final determination.
    In accordance with section 772(d)(1) and (2) of the Act and 19 CFR 
351.402(b), we deducted those selling expenses associated with economic 
activities occurring in the United States, including direct selling 
expenses (i.e., further manufacturing, imputed credit expenses, and 
repacking), and indirect selling expenses (including inventory carrying 
costs and other indirect selling expenses). We recalculated Fischer's 
U.S. credit expenses using the average interest rate reported by 
Fischer in its July 22 response. Regarding inventory carrying costs, 
Fischer did not report these expenses in its U.S. sales listing. 
Therefore, we calculated these expenses using FA. As FA, we based 
Fischer's inventory carrying period on the information contained in the 
public version of Cutrale's section C response. Finally, in instances 
where the information reported in Fischer's sales listing differed from 
that reflected in its narrative, we relied on the narrative 
information. For further discussion, see the August 16, 2005, 
memorandum to the file from Elizabeth Eastwood entitled, ``Calculations 
performed for Fischer S/A - Agroindustria in the Investigation of 
Certain Orange Juice from Brazil'' (Fischer calculation memo).
    Pursuant to section 772(d)(3) of the Act, we further reduced the 
starting price by an amount for profit to arrive at CEP. In accordance 
with section 772(f) of the Act, we calculated the CEP profit rate using 
the expenses incurred by Fischer and its U.S. affiliate on their sales 
of the subject merchandise in the United States and the profit 
associated with those sales.

Normal Value

A. Home Market Viability
    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 equal to or greater than five percent of the aggregate volume of 
U.S. sales), we compared each respondent's volume of home market sales 
of the foreign like product to the volume of its U.S. sales of the 
subject merchandise, in accordance with section 773(a)(1)(C) of the 
Act.
    In this investigation, we determined that the aggregate volume of 
home market sales of the foreign like product for each respondent was 
sufficient to permit a proper comparison with its U.S. sales of the 
subject merchandise.
B. Affiliated Party Transactions and Arm's-Length Test
    As noted below, Fischer made sales of the foreign like product to 
affiliated customers during the POI. To test whether these sales to 
affiliated customers were made at arm's length, where possible, we 
compared the prices of sales to affiliated and unaffiliated customers, 
net of all movement charges, direct selling expenses, and packing. 
Where the price to that affiliated party was, on average, within a 
range of 98 to 102 percent of the price of the same or comparable 
merchandise sold to the unaffiliated parties at the same level of trade 
(LOT), we determined that the sales made to the affiliated party were 
at arm's length. See Modification Concerning Affiliated Party Sales in 
the Comparison Market, 67 FR 69186 (Nov. 15, 2002).
C. 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 LOT as the CEP. Pursuant to 19 CFR 351.412(c)(1), the NV LOT 
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 CEP, it is 
the level of the constructed sale from the exporter to the importer.
    To determine whether NV sales are at a different LOT than CEP 
sales, we examine stages in the marketing process and selling functions 
along the chain of distribution between the producer and the 
unaffiliated customer. See 19 CFR 351.412(c)(2). If the comparison-
market sales are at a different LOT, 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 LOT of the export transaction, we make an LOT 
adjustment under section 773(a)(7)(A) of

[[Page 49563]]

the Act. Finally, for CEP sales, if the NV level is more remote from 
the factory than the CEP level and there is no basis for determining 
whether the difference in levels between NV and CEP affects price 
comparability, we adjust NV under section 773(a)(7)(B) of the Act (the 
CEP-offset provision). See Notice of Final Determination of Sales at 
Less Than Fair Value: Certain Cut-to-Length Carbon Steel Plate from 
South Africa, 62 FR 61731 (Nov. 19, 1997).
    In this investigation, we obtained information from each respondent 
regarding the marketing stages involved in making the reported home 
market and U.S. sales, including a description of the selling 
activities performed by each respondent for each channel of 
distribution. Company-specific LOT findings are summarized below.
    Cutrale claimed that it made home market sales at only one LOT 
(i.e., sales to original equipment manufacturers). Because Cutrale 
performed the same selling activities for sales to all customers in the 
home market (i.e., engineering services, packing, inventory 
maintenance, processing, technical assistance, rebates, cash discounts, 
guarantees, freight and delivery, and post-sale warehousing), we 
determine that all home market sales by Cutrale were at the same LOT.
    Fischer also claimed that it made home market sales at one LOT, 
although it reported home market sales to the following customer 
categories: reconstitutors and/or repackagers, institutional food 
service providers, and drink producers. Because Fischer performed the 
same selling activities for sales to all customers in the home market 
(i.e., inventory maintenance, order processing/invoicing, freight and 
delivery arrangements, and receipt of payment), we also determine that 
all home market sales by Fischer were at the same LOT.
    Both respondents made only CEP sales during the POI. In order to 
determine whether NV was established at an LOT which constituted a more 
advanced stage of distribution than the LOT of the CEP for these 
companies, we compared the selling functions performed for home market 
sales with those performed with respect to the CEP transaction, which 
excludes economic activities occurring in the United States. We found 
that both respondents performed essentially the same selling functions 
in their sales offices in Brazil for both home market and U.S. sales. 
Therefore, the respondents' sales in Brazil were not at a more advanced 
stage of marketing and distribution than the constructed U.S. LOT, 
which represents an F.O.B. foreign port price after the deduction of 
expenses associated with U.S. selling activities. Because we find that 
no difference in LOT exists between markets, we find that neither an 
LOT adjustment nor a CEP offset is warranted for either Cutrale or 
Fischer.
D. Cost of Production Analysis
    Based on our analysis of the petitioners' allegations, we found 
that there were reasonable grounds to believe or suspect that Cutrale's 
and Fischer's sales of certain orange juice in the home market were 
made at prices below their respective COP. Accordingly, pursuant to 
section 773(b) of the Act, we initiated sales-below-cost investigations 
to determine whether Cutrale's and Fischer's sales were made at prices 
below their respective COPs. See the Cutrale Cost Initiation Memo, and 
the Fischer Cost Initiation Memo.
1. Calculation of COP
    In accordance with section 773(b)(3) of the Act, we calculated COP 
based on the sum of the cost of materials and fabrication for the 
foreign like product, plus an amount for SG&A, and interest expenses. 
See ``Test of Home Market Sales Prices'' section below for treatment of 
home market selling expenses. We relied on the COP data submitted by 
Cutrale and Fischer except in the following instances.
A. Cutrale
1. We revised the allocation of Cutrale's net by-product revenue 
between FCOJM and NFC; and
2. We revised Cutrale's general and administrative (G&A) expense to 
include a write-off of fixed assets and a gain on the sale of fixed 
assets.
    For further discussion of these adjustments, see the memorandums 
from Ji Young Oh and Laurens van Houten to Neal Halper entitled ``Cost 
of Production and Constructed Value Adjustments for the Preliminary 
Determination - Sucocitrico Cutrale Ltda.'' dated August 16, 2005.
B. Fischer
1. We revised the per-unit reported costs for NFC and FCOJM to reflect 
the different brix levels between products;
2. We revised Fischer's G&A expense rate calculation to exclude packing 
and freight from the cost of goods sold denominator; and
3. We based the COP for one of Fischer's production facilities on AFA. 
As AFA, we have relied on the costs recorded in the affiliate's trial 
balance for the applicable months. See below for further discussion.
    For further details regarding these adjustments, see the Memorandum 
from Heidi Schriefer and Frederick Mines to Neal M. Halper entitled 
``Cost of Production and Constructed Value Calculation Adjustments for 
the Preliminary Determination - Fischer S/A - Agroindustria'' dated 
August 16, 2005.
    As noted above, in its original section A and D responses, Fischer 
stated that it owned and operated three production facilities that 
produced the merchandise under consideration. In the supplemental 
section A response, Fischer stated that one of the three facilities was 
actually leased from an affiliated party. Subsequently, in its 
supplemental section D response, Fischer stated that its previous 
representations were erroneous and that there were actually no leased 
facilities. Instead, Fischer claimed that the third facility was wholly 
owned and operated by its affiliate during three months of the POI and 
the affiliate produced the merchandise under consideration. We reviewed 
the record evidence and determined that: (1) These two producers are 
affiliated under section 771(33)(E) of the Act; and 2) Fischer and its 
affiliate should be treated as one entity for dumping calculation 
purposes under 19 CFR 351.401(f). Specifically, both entities have 
production facilities for similar or identical products that would not 
require substantial retooling of either facility to restructure 
manufacturing priorities and there is significant potential for the 
manipulation of price or production. Thus, Fischer and its affiliate 
should be treated as one entity for purposes of this investigation. 
However, as noted above, the respondent failed to provide the costs 
associated with the third production facility.
    Section 776(a) of the Act provides that, (1) if necessary 
information is not available on the record, or (2) if an interested 
party or any other person (A) withholds information that has been 
requested by the administering authority; (B) fails to provide such 
information by the deadlines for the submission of the information or 
in the form and manner requested, subject to subsections (c)(1) and (e) 
of section 782 of the Act; (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) of the Act, the Department 
shall, subject to section 782(d) of the Act, use the facts otherwise 
available in reaching the applicable determination under this title. As 
noted above, in selecting from among the facts otherwise available, 
section 776(b) of the Act authorizes the Department to use an adverse 
inference if the Department finds that an interested party failed to 
cooperate by not acting to the best of its ability to

[[Page 49564]]

comply with a request for information. See, e.g., Notice of Final 
Determination of Sales of Less Than Fair Value and Final Negative 
Critical Circumstances: Carbon and Certain Alloy Steel Wire Rod from 
Brazil, 67 FR 55792, 55794-96 (Aug. 30, 2002). To examine whether the 
respondent cooperated by acting to the best of its ability under 
section 776(b) of the Act, the Department considers, inter alia, the 
accuracy and completeness of submitted information and whether the 
respondent has hindered the calculation of accurate dumping margins. 
See, e.g., Notice of Final Determination of Sales at Less Than Fair 
Value: Certain Cold-Rolled Flat-Rolled Carbon Quality Steel Products 
From Brazil, 65 FR 5554, 5567 (Feb. 4, 2000).
    In the instant case, Fischer stated in its questionnaire response 
that it owned and operated three production facilities that produced 
the merchandise under consideration, indicating that the cost of 
producing merchandise under consideration for all three facilities was 
included in the reported costs. However, as mentioned earlier, in the 
supplemental questionnaire, we discovered that Fischer did not in fact 
operate one of the three manufacturing facilities but rather that its 
affiliate operated the facility. Fischer failed to provide the COP 
related to this facility. As a result, necessary information is not 
available on the record and Fischer withheld information requested by 
the Department, warranting the application of facts available pursuant 
to sections 776(a)(1) and (2)(A) of the Act. Moreover, we preliminarily 
determine that Fischer did not cooperate to the best of its ability in 
failing to provide this cost information. Based on the data Fischer was 
able to provide with respect to this affiliate, it is reasonable to 
assume that Fischer has access to this affiliate's COP data and could 
have provided it in response to the Department's requests. However, 
Fischer failed to do so. Furthermore, Fischer should have known that 
the affiliate's COP information was required by the Department because 
it was requested in the general instructions for the Department's 
antidumping questionnaire. Therefore, to account for the POI production 
costs related to the affiliate's cost of producing merchandise under 
consideration, we applied AFA for purposes of the preliminary 
determination pursuant to section 776(b) of the Act. As AFA, for the 
per-unit costs of the third facility, we have relied on the costs 
recorded in the affiliate's trial balance for the applicable months. 
Subsequent to this preliminary determination, the Department will 
solicit further information related to the affiliate's cost of 
producing the merchandise under consideration. However, if the 
solicited information is not provided, the Department may make 
additional adverse inferences related to the total reported cost of 
production for purposes of the final determination.
2. Test of Home Market Sales Prices
    On a product-specific basis, we compared the adjusted weighted-
average COP to the home market sales of the foreign like product, as 
required under section 773(b) of the Act, in order to determine whether 
the sale prices were below the COP. The prices were exclusive of any 
applicable billing adjustments, movement charges, and direct and 
indirect selling expenses. In determining whether to disregard home 
market sales made at prices less than its COP, we examined, in 
accordance with sections 773(b)(1)(A) and (B) of the Act, whether such 
sales were made (1) within an extended period of time in substantial 
quantities, and (2) at prices which permitted the recovery of all costs 
within a reasonable period of time.
3. Results of the COP Test
    Pursuant to section 773(b)(2)(C) of the Act, where less than 20 
percent of the respondent's sales of a given product during the POI are 
at prices less than the COP, we do not disregard any below-cost sales 
of that product, because we determine that in such instances the below-
cost sales were not made in substantial quantities. Where 20 percent or 
more of the respondent's sales of a given product during the POI are at 
prices less than the COP, we determine that the below-cost sales 
represent substantial quantities within an extended period of time, in 
accordance with section 773(b)(1)(A) of the Act. In such cases, we also 
determine whether such sales were made at prices which would not permit 
recovery of all costs within a reasonable period of time, in accordance 
with section 773(b)(1)(B) of the Act.
    We found that, for Cutrale, less than 20 percent of Cutrale's home 
market sales failed the cost test. Therefore, we did not disregard any 
home market sales when calculating Cutrale's NV. Regarding Fischer, we 
found that, for certain specific products, more than 20 percent of 
Fischer's home market sales during the POI were at prices less than the 
COP and, in addition, the below-cost sales did not provide for the 
recovery of costs within a reasonable period of time. We therefore 
excluded these sales and used the remaining sales, if any, as the basis 
for determining Fischer's NV, in accordance with section 773(b)(1) of 
the Act. Where there were no sales of any comparable product at prices 
above the COP, we used CV as the basis for determining NV.
E. Calculation of Normal Value Based on Comparison Market Prices
1. Cutrale
    For Cutrale, we calculated NV based on ex-factory prices to 
unaffiliated customers. We made adjustments, where appropriate, to the 
starting price for Brazilian taxes and billing adjustments in 
accordance with section 773(a)(6)(B)(iii) of the Act. We made no 
adjustment to the starting price for home market rebates for purposes 
of the preliminary determination because the amounts reported were 
provisional. Nonetheless, we have requested further information from 
Cutrale regarding the payment of these rebates and will consider it for 
the final determination.
    We made deductions from the starting price for home market credit 
expenses (offset by interest revenue) pursuant to section 773(a)(6)(C) 
of the Act. Because Cutrale reported that it had no home market 
borrowings during the POI, we recalculated home market credit expenses 
using the SELIC interest rate published by the International Monetary 
Fund's International Financial Statistics (i.e., the ``SELIC'' rate). 
Where applicable, in accordance with 19 CFR 351.410(e), we offset any 
commission paid on a U.S. sale by reducing the NV by the amount of home 
market indirect selling expenses and inventory carrying costs, up to 
the amount of the U.S. commission.
    Finally, we deducted home market packing costs and added U.S. 
packing costs, where appropriate, in accordance with sections 
773(a)(6)(A) and (B) of the Act.
2. Fischer
    We reclassified certain of Fischer's reported sales to unaffiliated 
parties as sales to an affiliate because Fischer had an ownership 
interest in this customer during the POI.
    We calculated NV based on delivered prices to unaffiliated 
customers or prices to affiliated customers that we determined to be at 
arm's length. We made adjustments, where appropriate, to the starting 
price for Brazilian taxes in accordance with section 773(a)(6)(B)(iii) 
of the Act. We deducted foreign inland freight expenses in accordance 
with section 773(a)(6)(B)(ii) of the Act.
    In addition, we made deductions under section 773(a)(6)(C) of the 
Act for credit expenses (offset by interest revenue). We recalculated 
home market credit expenses using the ``SELIC'' rate because Fischer 
did not report home market borrowings during the POI.

[[Page 49565]]

Finally, we deducted home market packing costs in accordance with 
sections 773(a)(6)(A) and (B) of the Act. Regarding sales packed by an 
affiliated party, we disallowed those packing expenses for purposes of 
our price-to-price comparisons because Fischer failed to demonstrate 
that these packing expenses were at arm's length.

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.

Critical Circumstances

    On July 25, 2005, the petitioners alleged that there is a 
reasonable basis to believe or suspect critical circumstances exist 
with respect to the antidumping investigation of certain orange juice 
from Brazil. In accordance with 19 CFR 351.206(c)(2)(i), because the 
petitioners submitted their critical circumstances allegation more than 
20 days before the scheduled date of the preliminary determination, the 
Department must issue a preliminary critical circumstances 
determination not later than the date of the preliminary determination.
    Section 733(e)(1) of the Act provides that the Department will 
preliminarily determine that critical circumstances exist if there is a 
reasonable basis to believe or suspect that: (A)(i) there is a history 
of dumping and material injury by reason of dumped imports in the 
United States or elsewhere of the subject merchandise; or (ii) the 
person by whom, or for whose account, the merchandise was imported knew 
or should have known that the exporter was selling the subject 
merchandise at less than its fair value and that there was likely to be 
material injury by reason of such sales; and (B) there have been 
massive imports of the subject merchandise over a relatively short 
period. Section 351.206(h)(1) of the Department's regulations provides 
that, in determining whether imports of the subject merchandise have 
been ``massive,'' the Department normally will examine: (i) the volume 
and value of the imports; (ii) seasonal trends; and (iii) the share of 
domestic consumption accounted for by the imports. In addition, 19 CFR 
351.206(h)(2) provides that an increase in imports of 15 percent during 
the ``relatively short period'' of time may be considered ``massive.'' 
Section 351.206(i) of the Department's regulations defines ``relatively 
short period'' as normally being the period beginning on the date the 
proceeding begins (i.e., the date the petition is filed) and ending at 
least three months later. The regulations also provide, however, that 
if the Department finds that importers, exporters, or producers had 
reason to believe, at some time prior to the beginning of the 
proceeding, that a proceeding was likely, the Department may consider a 
period of not less than three months from that earlier time.
    In determining whether the above statutory criteria have been 
satisfied, we examined: (1) the evidence presented in the petitioners' 
submission of July 25; (2) information obtained from the USITC 
Interactive Tariff and Trade DataWeb (USITC dataweb); and (3) the ITC 
preliminary injury determination.
    To determine whether there is a history of injurious dumping of the 
merchandise under investigation, in accordance with section 
733(e)(1)(A)(i) of the Act, the Department normally considers evidence 
of an existing antidumping duty order on the subject merchandise in the 
United States or elsewhere to be sufficient. See Preliminary 
Determination of Critical Circumstances: Steel Concrete Reinforcing 
Bars From Ukraine and Moldova, 65 FR 70696 (Nov. 27, 2000). With regard 
to imports of certain orange juice from Brazil, the petitioners make no 
specific mention of a history of dumping for Brazil. We are not aware 
of any antidumping order in any country on certain orange juice from 
Brazil. For this reason, the Department does not find a history of 
injurious dumping of the subject merchandise from Brazil pursuant to 
section 733(e)(1)(A)(i) of the Act.
    To determine whether the person by whom, or for whose account, the 
merchandise was imported knew or should have known that the exporter 
was selling the subject merchandise at less than its fair value and 
that there was likely to be material injury by reason of such sales in 
accordance with 733(e)(1)(A)(ii) of the Act, the Department normally 
considers margins of 25 percent or more for EP sales, or 15 percent or 
more for CEP transactions, sufficient to impute knowledge of dumping. 
See, e.g., Preliminary Determination of Sales at Less Than Fair Value: 
Certain Cut-to-Length Carbon Steel Plate from the People's Republic of 
China, 62 FR 31972, 31978 (Oct. 19, 2001). Each respondent reported 
only CEP sales. The preliminary dumping margins calculated for Cutrale 
and Fischer are greater than 15 percent. Based on the ITC's preliminary 
determination of material injury, and the preliminary dumping margins 
calculated for all respondents, we find there is a reasonable basis to 
impute, to importers, knowledge of dumping and likely injury. See the 
August 16, 2005, memorandum to Barbara E. Tillman, Acting Deputy 
Assistant Secretary, from Louis Apple, Director, entitled, 
``Antidumping Duty Investigation of Certain Orange Juice from Brazil - 
Affirmative Preliminary Determination of Critical Circumstances'' 
(Critical Circumstances Memo) at Attachment II.
    For Montecitrus, we have used AFA in the critical circumstances 
analysis. As AFA in this case, we assigned Montecitrus the highest 
margin stated in the notice of initiation, 60.29 percent, which exceeds 
the 15 percent threshold necessary to impute knowledge of dumping. 
Consequently, we have imputed knowledge of dumping with regard to 
Montecitrus.
    Regarding the companies subject to the ``All Others'' rate, it is 
the Department's normal practice to conduct its critical circumstances 
analysis for these companies based on the experience of investigated 
companies. See, e.g., Notice of Final Determination of Sales at Less 
Than Fair Value: Certain Steel Concrete Reinforcing Bars From Turkey, 
62 FR 9737, 9741 (Mar. 4, 1997). However, the Department does not 
automatically extend an affirmative critical circumstances 
determination to companies covered by the ``All Others'' rate. See, 
e.g., Notice of Final Determination of Sales at Less Than Fair Value: 
Stainless Steel Sheet and Strip in Coils from Japan, 64 FR 30574 (June 
8, 1999) (Stainless Steel from Japan). Instead, the Department 
considers the traditional critical circumstances criteria with respect 
to the companies covered by the ``All Others'' rate. Consistent with 
Stainless Steel from Japan, the Department has, in this case, applied 
the traditional critical circumstances criteria to the ``All Others'' 
category for the antidumping investigation of certain orange juice from 
Brazil.
    The dumping margin for the ``All Others'' category in the instant 
case, 27.16 percent, exceeds the 15-percent threshold necessary to 
impute knowledge of dumping. Therefore, we find there is a reasonable 
basis to impute, to importers, knowledge of dumping for the companies 
covered by the ``All Others'' rate. Consequently, we find that 
knowledge of dumping exists with regard to the companies subject to the 
``All Others'' rate.
    In determining whether there are ``massive imports'' over a 
``relatively short period,'' pursuant to section 733(e)(1)(B) of the 
Act, the Department normally compares the import volumes

[[Page 49566]]

of the subject merchandise for at least three months immediately 
preceding the filing of the petition (i.e., the ``base period'') to a 
comparable period of at least three months following the filing of the 
petition (i.e., the ``comparison period''). Imports normally will be 
considered massive when imports during the comparison period have 
increased by 15 percent or more compared to imports during the base 
period.
    The Department requested and obtained from Cutrale and Fischer 
monthly shipment data from June 2001 through June 2005. However, 
because this information was received too close to the date of the 
preliminary determination, we were unable to consider it for the 
preliminary determination. Instead, we relied on U.S. import data from 
the USITC DataWeb for imports through May 2005 (i.e., the latest month 
for which complete data exists at the time of the preliminary 
determination). According to these statistics, we found the volume of 
imports of certain orange juice increased by more than 15 percent. We 
analyzed the time series data for the three years prior to the filing 
of the petition to address the issue of seasonality and found no 
seasonal pattern. As a result, we find that imports of subject 
merchandise were massive in the comparison period. For further 
discussion of this analysis, see the Critical Circumstances Memo at 
Attachments I and III.
    In summary, we find that Cutrale, Fischer, Montecitrus, and the 
companies subject to the ``All Others'' rate satisfy the imputed 
knowledge of injurious dumping criterion under section 733(e)(1)(A)(ii) 
of the Act and the massive imports criterion in accordance with section 
733(e)(1)(B) of the Act. Given the analysis summarized above, and 
described in more detail in the Critical Circumstances Memo, we 
preliminarily determine that critical circumstances exist for imports 
of certain orange juice produced in and exported from Brazil.
    We will make a final determination concerning critical 
circumstances for all producers and exporters of subject merchandise 
from Brazil when we make our final dumping determination in this 
investigation, which will be 135 days after publication of the 
preliminary dumping determination.

Verification

    As provided in section 782(i) of the Act, we will verify all 
information relied upon in making our final determination.

Suspension of Liquidation

    In accordance with section 733(e)(2)(A) of the Act, we are 
directing CBP to suspend liquidation of all imports of subject 
merchandise that are entered, or withdrawn from warehouse, for 
consumption on or after 90 days prior to the date of publication of 
this notice in the Federal Register. These suspension of liquidation 
instructions will remain in effect until further notice.
    We will instruct CBP to require a cash deposit or the posting of a 
bond equal to the weighted-average amount by which the NV exceeds CEP, 
as indicated in the chart below. The weighted-average dumping margins 
are as follows:

----------------------------------------------------------------------------------------------------------------
                                                                      Weighted-Average
                       Exporter/Manufacturer                          Margin Percentage   Critical Circumstances
----------------------------------------------------------------------------------------------------------------
Cutrale............................................................               24.62                      Yes
Fischer............................................................               31.04                      Yes
Montecitrus........................................................               60.29                      Yes
All Others.........................................................               27.16                      Yes
----------------------------------------------------------------------------------------------------------------

The ``All Others'' rate is calculated exclusive of all de minimis 
margins and margins based entirely on adverse facts available.

ITC Notification

    In accordance with section 733(f) of the Act, we have notified the 
ITC of our determination. If our final determination is affirmative, 
the ITC will determine before the later of 120 days after the date of 
this preliminary determination or 45 days after our final determination 
whether these imports materially injure, or threaten material injury 
to, the U.S. industry.

Disclosure

    We will disclose the calculations used in our analysis to parties 
in this proceeding in accordance with 19 CFR 351.224(b).

Public Comment

    Case briefs for this investigation must be submitted to the 
Department no later than seven days after the date of the final 
verification report issued in this proceeding. Rebuttal briefs must be 
filed five days from the deadline date for case briefs. A list of 
authorities used, a table of contents, and an executive summary of 
issues should accompany any briefs submitted to the Department. 
Executive summaries should be limited to five pages total, including 
footnotes. Section 774 of the Act provides that the Department will 
hold a public hearing to afford interested parties an opportunity to 
comment on arguments raised in case or rebuttal briefs, provided that 
such a hearing is requested by an interested party. If a request for a 
hearing is made in this investigation, the hearing will tentatively be 
held two days after the rebuttal brief deadline date at the U.S. 
Department of Commerce, 14th Street and Constitution Avenue, NW, 
Washington, DC 20230. Parties should confirm by telephone the time, 
date, and place of the hearing 48 hours before the scheduled time.
    Interested parties who wish to request a hearing, or to participate 
if one is requested, must submit a written request to the Assistant 
Secretary for Import Administration, U.S. Department of Commerce, Room 
1870, within 30 days of the publication of this notice. Requests should 
contain: 1) the party's name, address, and telephone number; 2) the 
number of participants; and 3) a list of the issues to be discussed. 
Oral presentations will be limited to issues raised in the briefs.
    We will make our final determination no later than 135 days after 
the publication of this notice in the Federal Register.
    This determination is published pursuant to sections 733(f) and 
777(i) of the Act.

    Dated: August 16, 2005.
Ronald K. Lorentzen,
Acting Assistant Secretary for Import Administration.
[FR Doc. E5-4633 Filed 8-23-05; 8:45 am]
BILLING CODE 3510-DS-S