[Federal Register Volume 72, Number 209 (Tuesday, October 30, 2007)]
[Notices]
[Pages 61372-61374]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-21299]


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INTERNATIONAL TRADE COMMISSION


Certain Orange Juice From Brazil; Dismissal of Request for 
Institution of a Section 751(b) Review Investigation

AGENCY: United States International Trade Commission.

ACTION: Dismissal of a request to institute a section 751(b) 
investigation concerning the Commission's affirmative determination in 
investigation No. 731-TA-1089 (Final), Certain Orange Juice from 
Brazil.

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SUMMARY: The Commission determines, pursuant to section 751(b) of the 
Tariff Act of 1930 (19 U.S.C. 1675(b)) and Commission rule 207.45, that 
the subject request does not show changed circumstances sufficient to 
warrant institution of an investigation to review in less than 24 
months the Commission's final affirmative determination in 
investigation No. 731-TA-1089 (Final). Certain orange juice is provided 
for in subheadings 2009.12.25, 2009.12.45, and 2009.19.00 of the 
Harmonized Tariff Schedule of the United States.

FOR FURTHER INFORMATION CONTACT: Diane J. Mazur (202-205-3184; 
[email protected]), Office of Investigations, U.S. International 
Trade Commission, 500 E Street SW., Washington, DC 20436. Hearing-
impaired persons can obtain information on this matter by contacting 
the Commission's TDD terminal on 202-205-1810. Persons with mobility 
impairments who will need special assistance in gaining access to the 
Commission should contact the Office of the Secretary at 202-205-2000. 
General information concerning the Commission may also be obtained by 
accessing its Internet server (http://www.usitc.gov). The public record 
for this matter may be viewed on the Commission's electronic docket 
(EDIS) at http://edis.usitc.gov.
    Background Information: On January 6, 2006, the Department of 
Commerce determined that imports of certain orange juice from Brazil 
are being sold in the United States at less than fair value (LTFV) 
within the meaning of section 731 of the Act (19 U.S.C. 1673) (71 FR 
2183, January 13, 2006); and on March 3, 2006, the Commission 
determined, pursuant to section 735(b)(1) of the Act (19 U.S.C. 
1673d(b)(1)), that an industry in the United States was materially 
injured by reason of imports of such LTFV merchandise. Accordingly, 
Commerce ordered that antidumping duties be imposed on such imports (71 
FR 12183, March 9, 2006).
    On June 13, 2007, the Commission received a request to review its 
affirmative determination in investigation No. 731-TA-1089 (Final) 
pursuant to section 751(b) of the Act (19 U.S.C. 1675(b)). The request 
was filed by Tropicana Products, Inc., Bradenton, FL. Tropicana alleges 
that shortfalls in the Florida juice orange crop and depleted 
inventories; significant price increases and a greatly constricted 
supply; and disruption of the alternative sources of Brazilian supply 
following imposition of the antidumping duty order have resulted in the 
domestic orange juice producers being harmed by the order.
    Pursuant to section 207.45(b) of the Commission's Rules of Practice 
and Procedure,\1\ the Commission published a notice in the Federal 
Register on July 25, 2007,\2\ requesting comments as to whether the 
changed circumstances alleged by the petitioner were sufficient to 
warrant an investigation to review in less than 24 months the 
Commission's final affirmative determination. On September 24, 2007, 
the Commission received comments in support of the request from: (1) 
Counsel on behalf of Tropicana, the party requesting the review; (2) 
counsel on behalf of Louis Dreyfus Citrus Inc. (``Louis Dreyfus''), a 
domestic packager, merchant, and manufacturer of orange juice; (3) 
counsel on behalf of Cutrale Citrus Juices, Inc., a U.S. producer; 
Citrus Products, Inc., a U.S. importer; and Sucocitrico Cutrale Lta., a 
Brazilian exporter (collectively, ``Cutrale Citrus''); (4) counsel on 
behalf of Fischer S/A Agroindustria, a Brazilian producer, and 
Citrosuco North America, Inc., a U.S. producer/importer, (collectively, 
``Fischer''); (5) Silver Springs Citrus, Inc., a U.S. producer; (6) 
Cargill Juice N.A., a U.S. producer/importer; and, (7) Vitality 
Foodservice, Inc., a U.S. purchaser.
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    \1\ 19 U.S.C. 1675 (b).
    \2\ 72 FR 40896.
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    A joint response in opposition to the request was received from 
counsel on behalf of Florida Citrus Mutual (``FCM''), A. Duda & Sons, 
Inc. (doing business as ``Citrus Belle''), Citrus World, Inc., and 
Southern Garden Citrus Processing Corporation (doing business as 
``Southern Gardens'') (collectively, ``domestic producers'').
    Analysis: In considering whether to institute a review 
investigation under section 751(b), the Commission will not institute 
such an investigation unless it is persuaded there is sufficient 
information demonstrating:
    (1) that there are significant changed circumstances from those in 
existence at the time of the original investigations,
    (2) that those changed circumstances are not the natural and direct 
result of the imposition of the antidumping and/or countervailing duty 
order, and
    (3) that the changed circumstances, allegedly indicating that 
revocation of the order would not be likely to lead to continuation or 
recurrence of material injury to the domestic industry, warrant a full 
investigation.\3\ Additionally, in the case of determinations issued 
less than 24 months before the request for a

[[Page 61373]]

review, such as the determination at issue here, the Commission can 
only institute a changed circumstances review on a showing of ``good 
cause.'' \4\ The Commission has previously stated that:
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    \3\ See Gray Portland Cement and Cement Clinker from Mexico, 66 
FR 657400 (December 20, 2001).
    \4\ 19 U.S.C. 1675(b)(4).
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    By enacting the good cause provision, Congress intended to 
create a tougher standard for instituting a review investigation 
when a request is filed within 24 months. The language used in 
section 751 indicates that good cause will be found only in an 
unusual case. * * * What constitutes good cause will necessarily 
depend on the facts of a particular case. As a general matter, some 
situations clearly would fall within the purview of the good cause 
provision such as: (1) Fraud or misfeasance in the original 
investigation; (2) acts of God, as exemplified in the FCOJ case 
where a severe freeze after the order was imposed sharply reduced 
U.S. producers' shipments of frozen concentrated orange juice; and 
(3) a mistake of law or fact in the original proceeding which 
renders the original proceeding unfair. This list, of course, is by 
no means exhaustive.\5\
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    \5\ Porcelain-on-Steel Cooking Ware from Taiwan, Views of the 
Commission Concerning its Determination to Not Institute a Review of 
Inv. No. 731-TA-299, USITC Publication 2117, Aug. 1988, pp. 7-8.
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1. Tropicana Has Not Shown ``Good Cause''

    As a threshold matter, while Tropicana argues that ``good cause'' 
exists for the Commission to institute a changed circumstances review 
even though the statutorily required 24-month period since publication 
of the Commission's final determination has not passed, it cites no 
facts specific to its ``good cause'' argument other than those alleged 
to show sufficient changed circumstances. As explained above, the 
Commission has stated that ``good cause'' implies a ``tougher 
standard'' for instituting reviews within the 24-month period and will 
be found only in an ``unusual case,'' such as (but not limited to): 
fraud or misfeasance in the original investigation; acts of God; or a 
mistake of law or fact in the original proceeding which renders the 
original proceeding unfair.\6\
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    \6\ Porcelain-on-Steel Cooking Ware from Taiwan, USITC Pub. 2117 
(Aug. 1998) at 7-8.
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    The facts alleged by Tropicana are not of the type that would meet 
this higher standard. Tropicana does not allege fraud, misfeasance, or 
mistake of law or fact in the original investigation. Although 
Tropicana alleges that the effects of the 2004/2005 hurricanes that 
reduced the domestic producers' supply of oranges were not fully known 
until after the Commission's determination, the Commission took the 
hurricanes and reduced supply into account in its original decision.\7\ 
This case is thus distinguishable from the 1984 case on Frozen 
Concentrated Orange Juice from Brazil, Inv. No. 751-TA-10 (Review), 
where the Commission found ``good cause'' and instituted a changed 
circumstances review on the basis of a severe freeze in Florida that 
occurred after the Commission's determination and sharply reduced 
domestic production, contributing to a surge in demand for the 
Brazilian product.\8\
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    \7\ Certain Orange Juice from Brazil, USITC Pub. 3838 (March 
2006), at 14-15.
    \8\ Frozen Concentrated Orange Juice from Brazil, USITC Pub. 
1623 (Dec. 1984). The Commission decided on review that the short-
term effects of the freeze would dissipate and that the domestic 
industry remained vulnerable to the effects of imports from Brazil.
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    Moreover, as explained below, the facts alleged by Tropicana do not 
even show sufficient changed circumstances to warrant a review, much 
less ``good cause.''

2. Tropicana Has Not Shown Sufficient Changed Circumstances

    The information available, including that provided by Tropicana in 
its request, does not demonstrate, as it must:
    (1) That there are significant changed circumstances from those in 
existence at the time of the original investigation;
    (2) That those changed circumstances are not the natural and direct 
result of the imposition of the antidumping duty order; and
    (3) That the changed circumstances, allegedly indicating that 
revocation of the order would not be likely to lead to the continuation 
or recurrence of material injury to the domestic industry, warrant a 
full investigation.\9\
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    \9\ Silicon Metal from Argentina, Brazil, and China, 63 FR 52289 
(Sept. 30, 1998). See, generally, A. Hirsh, Inc. v. United States, 
737 F. Supp. 1186 (Ct. Int'l Trade 1990); Avesta AB v. United 
States, 724 F. Supp. 974 (Ct. Int'l Trade 1989), aff'd, 914 F.2d 232 
(Fed. Cir. 1990), cert. denied, 111 S. Ct. 1308 (1991).
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    With respect to the first factor--significant changed circumstances 
from those in existence at the time of the original investigation--many 
of the facts alleged by Tropicana and others supporting review do not 
even constitute changes or differences from circumstances that existed 
during the original investigation and were considered by the Commission 
in its final determination. For example, the hurricanes and citrus 
canker disease that allegedly reduced the supply of juice oranges to 
the domestic producers occurred during the original period of 
investigation and were noted by the Commission, as was the decline in 
domestic orange juice production.\10\ That these effects may have 
continued after the Commission's determination is not evidence of new 
circumstances but of a continuing trend.\11\ Because orange trees take 
between 4 and 12 years from planting to bear fruit,\12\ it is not 
surprising or unexpected that domestic production would not quickly 
return to pre-hurricane levels. In addition, there is evidence that 
this trend has begun to reverse itself in that Florida juice orange 
production for 2007/2008 is estimated to increase substantially over 
the previous year.\13\ Moreover, even if the alleged circumstances 
represented changes since the original period of investigation, they 
are not significant changes, but merely the normal fluctuations that 
occur in agricultural production due to factors such as weather and 
disease.
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    \10\ Certain Orange Juice from Brazil, USITC Pub. 3838 (March 
2006), at 14-15.
    \11\ Stainless Steel Plate from Sweden, 50 FR at 43614 (review 
petition denied where, inter alia, petitioner's asserted changed 
circumstance was based on ``merely a continuation of a trend'' which 
was discussed in the Commission's determination resulting in the 
imposition of the order).
    \12\ Certain Orange Juice from Brazil, USITC Pub. 3838 (March 
2006) at III-4, n.13.
    \13\ Domestic Producers' Comments at 6.
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    Another alleged change is the decline in U.S. retail demand for 
orange juice, which Tropicana and others attribute to the rise in 
retail orange juice prices since the Commission's original 
determination due to short supply of both juice oranges and orange 
juice. However, the Commission noted in its original determination that 
the parties all agreed that the popularity of low carbohydrate diets 
during the period examined had reduced the demand for orange juice.\14\ 
Thus, the alleged change is not a change at all, but a circumstance 
already in existence at the time of the original investigation.
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    \14\ Certain Orange Juice from Brazil, USITC Pub. 3838 (March 
2006) at 16.
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    Parties in favor of instituting a review also point to a shortfall 
in domestic orange juice production, due to the effects of weather and 
disease on orange crop production. However, reduced orange juice 
production had already begun to manifest itself during the original 
investigation period, and is therefore not a change.\15\ We also note 
that increased imports and drawdown of burdensome inventories have 
compensated for any shortfall in U.S. production since the original 
determination.\16\
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    \15\ Certain Orange Juice from Brazil, USITC Pub. 3838 (March 
2006) at 20, n. 143.
    \16\ Domestic Producers' Comments at 16.
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    With respect to the second factor--that the changed circumstances 
are not

[[Page 61374]]

the natural and direct result of the imposition of the antidumping duty 
order--Tropicana and others allege that, in contrast to what would be 
expected under the order, domestic production has continued to decline 
and imports have increased. Contrary to these allegations, however, the 
evidence indicates that changes that have occurred in the U.S. market 
are expected results of the order. That is, while domestic production 
continued to decline, U.S. prices have increased.\17\ Higher prices, 
including higher import prices, are expected and positive effects of 
the order for domestic producers.
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    \17\ Domestic Producers' Comments at 16-17.
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    Given these results, the increase in imports since the order does 
not constitute a changed circumstance not resulting from the order 
sufficient to warrant a review. The purpose of an antidumping duty 
order is not to curtail or disrupt import supply into the U.S. market, 
but to ensure that import prices reflect fair market value. The 
Commission recognized in its original determination that imports help 
meet U.S. demand for orange juice when U.S. supply is temporarily 
affected by short orange crop years due to weather, disease and other 
factors.\18\ As the Commission stated in its original determination in 
this case, and in denying a similar request for a changed circumstances 
review in Polychloroprene Rubber from Japan,
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    \18\ Certain Orange Juice from Brazil, USITC Pub. 3838 (March 
2006) at 20-21.

    [W]hile short supply conditions are a relevant condition of 
competition, * * * there is no short supply provision in the statute 
and the fact that the domestic industry may not be able to supply 
all of demand does not mean the industry may not be materially 
injured or threatened with material injury by reason of subject 
imports.\19\
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    \19\ Polychloroprene Rubber from Japan, 71 FR at 17140; see also 
Certain Orange Juice from Brazil, USITC Pub. 3838 (March 2006) at 
20, n. 143.

    Finally, with respect to the third factor, neither Tropicana nor 
the other parties supporting review have put forth sufficient evidence 
to show that the alleged changed circumstances indicate that revocation 
of the order would not be likely to lead to the continuation or 
recurrence of material injury to the domestic industry. In fact, the 
evidence they have cited would indicate the opposite. The fact that 
U.S. production has continued to decline, would indicate if anything, 
that the industry has not fully recovered from the adverse effects of 
subject imports, as well as adverse weather and disease conditions, and 
is vulnerable to continued injury if the order were revoked. In 
addition, imports have increased since the order was imposed, and there 
is no indication or allegation that Brazil has less capacity or 
incentive to increase its shipments to the United States absent the 
order. Record evidence in fact suggests that from 2005/2006 to 2006/
2007, Brazilian orange juice production, exports, and end-of-period 
inventories grew.\20\ Moreover, data also show that after the order was 
imposed the average customs value per SSE liter of imports from Brazil 
rose.\21\ Likewise, there is no indication or claim that Brazilian 
prices would not return to pre-order levels if the order were revoked.
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    \20\ Domestic Producers' Comments at 27-29.
    \21\ Domestic Producers' Comments at 17.
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    In sum, Tropicana has not provided adequate evidentiary support for 
its allegations that sufficient changed circumstances and ``good 
cause'' exist for the Commission to institute a review. The 
circumstances allegedly fail to satisfy these requirements because they 
(1) do not constitute changes since the original determination or are 
not significant changes; (2) do not constitute circumstances that are 
not a direct and natural result of the order; and (3) do not indicate, 
so as to justify proceeding to a full review, that revocation of the 
antidumping duty order would not be likely to lead to continuation or 
recurrence of material injury to the domestic industry.
    In light of the above analysis, the Commission under section 751(b) 
of the Act determines that institution of an investigation to review in 
less than 24 months the Commission's final affirmative determination in 
investigation No. 731-TA-1089 (Final), Certain Orange Juice from 
Brazil, is not warranted.

     Issued: October 24, 2007.

    By order of the Commission.
Marilyn R. Abbott,
Secretary to the Commission.
 [FR Doc. E7-21299 Filed 10-29-07; 8:45 am]
BILLING CODE 7020-02-P