[Federal Register Volume 76, Number 156 (Friday, August 12, 2011)]
[Notices]
[Pages 50176-50179]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-20563]
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DEPARTMENT OF COMMERCE
International Trade Administration
[A-351-840]
Certain Orange Juice from Brazil: Final Results of Antidumping
Duty Administrative Review, Determination Not To Revoke Antidumping
Duty Order in Part, and Final No Shipment Determination
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
DATES: Effective Date: August 12, 2011.
SUMMARY: On April 7, 2011, the Department of Commerce (the Department)
published its preliminary results of the administrative review of the
antidumping duty order on certain orange juice (OJ) from Brazil. This
review covers four producers/exporters of the subject merchandise to
the United States. The period of review (POR) is March 1, 2009, through
February 28, 2010.
After analyzing the comments received, we have made certain changes
in the margin calculations. Therefore,
[[Page 50177]]
these final results differ from the preliminary results. The final
weighted-average dumping margins for the reviewed firms are listed
below in the section entitled ``Final Results of Review.''
Further, we have determined not to revoke the antidumping duty
order with respect to OJ from Brazil produced and exported by
Sucocitrico Cutrale, S.A. (Cutrale).
FOR FURTHER INFORMATION CONTACT: Hector Rodriguez or Blaine Wiltse, 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-
0629 or (202) 482-6345, respectively.
SUPPLEMENTARY INFORMATION:
Background
On April 7, 2011, the Department published in the Federal Register
the preliminary results of the 2009-2010 administrative review of
antidumping duty order on certain OJ from Brazil. See Certain Orange
Juice from Brazil: Preliminary Results of Antidumping Duty
Administrative Review and Notice of Intent Not to Revoke Antidumping
Duty Order in Part, 76 FR 19315 (Apr. 7, 2011) (Preliminary Results).
Also in April, after the issuance of the preliminary results, the
Department issued, and Cutrale submitted responses to, two additional
supplemental questionnaires.
We invited parties to comment on our preliminary results of review.
In May 2011, we received case briefs from the petitioners (i.e.,
Florida Citrus Mutual and Citrus World Inc.), Cutrale, and Fischer S.A.
Comercio, Industria, and Agricultura (Fischer). We received rebuttal
briefs from the petitioners and Cutrale.
The Department has conducted this administrative review in
accordance with section 751 of the Tariff Act of 1930, as amended (the
Act).
Scope of the Order
The scope of this order 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 frozen concentrated orange juice for manufacture (FCOJM); and (2)
pasteurized single-strength orange juice which has not been
concentrated, referred to as not-from-concentrate (NFC). At the time of
the filing of the petition, there was an existing antidumping duty
order on frozen concentrated orange juice (FCOJ) from Brazil. See
Antidumping Duty Order; Frozen Concentrated Orange Juice from Brazil,
52 FR 16426 (May 5, 1987). Therefore, the scope of this order 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, Coinbra-Frutesp (SA), Cutrale,
Fischer, and Montecitrus Trading S.A.
Excluded from the scope of the order 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 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 the order
is dispositive.
Period of Review
The POR is March 1, 2009, through February 28, 2010.
Determination Not To Revoke Order, In Part
The Department may revoke, in whole or in part, an antidumping duty
order upon completion of a review under section 751 of the Act. While
Congress has not specified the procedures that the Department must
follow in revoking an order, the Department has developed a procedure
for revocation that is described in 19 CFR 351.222. This regulation
requires, inter alia, that a company requesting revocation must submit
the following: (1) A certification that the company has sold the
subject merchandise at not less than normal value (NV) in the current
review period and that the company will not sell subject merchandise at
less than NV in the future; (2) a certification that the company sold
commercial quantities of the subject merchandise to the United States
in each of the three years forming the basis of the request; and (3) an
agreement to immediate reinstatement of the order if the Department
concludes that the company, subsequent to the revocation, sold subject
merchandise at less than NV. See 19 CFR 351.222(e)(1). Upon receipt of
such a request, the Department will consider whether: (1) The company
in question has sold subject merchandise at not less than NV for a
period of at least three consecutive years; (2) the company has agreed
in writing to its immediate reinstatement in the order, as long as any
exporter or producer is subject to the order, if the Department
concludes that the company, subsequent to the revocation, sold the
subject merchandise at less than NV; and (3) the continued application
of the antidumping duty order is otherwise necessary to offset dumping.
See 19 CFR 351.222(b)(2)(i).
As we noted in the Preliminary Results, on March 31, 2010, Cutrale
requested revocation of the antidumping duty order with respect to its
sales of subject merchandise, pursuant to 19 CFR 351.222(b). This
request was accompanied by certification that: (1) Cutrale sold the
subject merchandise at not less than NV during the current POR and will
not sell the merchandise at less than NV in the future; and (2) it sold
subject merchandise to the United States in commercial quantities for a
period of at least three consecutive years. Cutrale also agreed to
immediate reinstatement of the antidumping duty order, as long as any
exporter or producer is subject to the order, if the Department
concludes that, subsequent to the revocation, it sold the subject
merchandise at less than NV. See Preliminary Results, 76 FR at 19315.
After analyzing Cutrale's request for revocation (as more fully
explained in the Issues and Decision Memorandum accompanying this
notice (the Decision Memo)), we find that it does not meet all of the
criteria under 19 CFR 351.222(b). In the second and third
administrative reviews, we found that Cutrale sold subject merchandise
at less than NV. See Certain Orange Juice from Brazil: Final Results of
Antidumping Duty Administrative Review, 74 FR 40167 (Aug. 11, 2009);
and Certain Orange Juice from Brazil: Final Results of Antidumping Duty
Administrative Review and Notice of Intent Not To Revoke Antidumping
Duty Order in Part, 75 FR 50999 (Aug. 18, 2010). Accordingly, Cutrale
did not demonstrate that it did not sell the subject merchandise at
less than NV for a period of at least three consecutive years.
Therefore, we determine that Cutrale does not qualify for
revocation of the order on certain orange juice pursuant to 19 CFR
351.222(b)(2), and as a result
[[Page 50178]]
we have not revoked the order with respect to merchandise produced and
exported by Cutrale. For further discussion of this issue, see the
Decision Memo at Comment 3.
Determination of No Shipments
As noted in the Preliminary Results, we received no-shipment claims
from two companies named in the notice of initiation of this review,
Coinbra-Frutesp (SA) (Coinbra-Frutesp) and Montecitrus Trading S.A.
(Montecitrus), and we confirmed their claims with U.S. Customs and
Border Protection (CBP). Because we find that the record indicates that
Coinbra-Frutesp and Montecitrus did not export subject merchandise to
the United States during the POR, we determine that they had no
reviewable transactions during the POR.
As we stated in the Preliminary Results, our former practice
concerning respondents submitting timely no-shipment certifications was
to rescind the administrative review with respect to those companies if
we were able to confirm the no-shipment certifications through a no-
shipment inquiry with CBP. See Antidumping Duties; Countervailing
Duties; Final rule, 62 FR 27296, 27393 (May 19, 1997); see also
Stainless Steel Sheet and Strip in Coils from Taiwan: Final Results of
Antidumping Duty Administrative Review, 75 FR 76700, 76701 (Dec. 9,
2010). As a result, in such circumstances, we normally instructed CBP
to liquidate any entries from the no-shipment company at the deposit
rate in effect on the date of entry.
In our May 6, 2003, clarification of the ``automatic assessment''
regulation, we explained that, where respondents in an administrative
review demonstrate that they had no knowledge of sales through
resellers to the United States, we would instruct CBP to liquidate such
entries at the all-others rate applicable to the proceeding. See
Antidumping and Countervailing Duty Proceedings: Assessment of
Antidumping Duties, 68 FR 23954 (May 6, 2003) (Assessment Policy
Notice).
As noted in the Preliminary Results, because ``as entered''
liquidation instructions do not alleviate the concerns which the May
2003 clarification was intended to address, we find it appropriate in
this case to instruct CBP to liquidate any existing entries of
merchandise produced by Coinbra-Futesp or Montecitrus and exported by
other parties at the all-others rate. In addition, we continue to find
that it is more consistent with the May 2003 clarification not to
rescind the review in part in these circumstances but, rather, to
complete the review with respect to these two companies and issue
appropriate instructions to CBP based on the final results of this
administrative review. See the ``Assessment Rates'' section of this
notice below.
Cost of Production
As discussed in the preliminary results, we conducted an
investigation to determine whether Cutrale and Fischer made home market
sales of the foreign like product during the POR at prices below their
costs of production (COP) within the meaning of section 773(b) of the
Act. See Preliminary Results. For these final results, we performed the
cost test following the same methodology as in the Preliminary Results,
except as discussed in the Decision Memo.
We found 20 percent or more of each respondent's sales of a given
product during the reporting period were at prices less than the
weighted-average COP for this period. Thus, we determined that these
below-cost sales were made in ``substantial quantities'' within an
extended period of time and at prices which did not permit the recovery
of all costs within a reasonable period of time in the normal course of
trade. See sections 773(b)(1) and (2) of the Act.
For purposes of these final results, we continue to find that
Cutrale and Fischer made below-cost sales not in the ordinary course of
trade. Consequently, we disregarded these sales for each respondent and
used the remaining sales (if any) as the basis for determining NV,
pursuant to section 773(b)(1) of the Act. Where there were no home
market sales made in the ordinary course of trade, we based NV on
constructed value.
Analysis of Comments Received
All issues raised in the case briefs by parties to this
administrative review, and to which we have responded, are listed in
the Appendix to this notice and addressed in the Decision Memo, which
is adopted by this notice. Parties can find a complete discussion of
all issues raised in this review and the corresponding recommendations
in this public memorandum, which is on file in the Central Records
Unit, room 7046, of the main Department building.
In addition, a complete version of the Decision Memo can be
accessed directly on the Web at http://ia.ita.doc.gov/frn. The paper
copy and electronic version of the Decision Memo are identical in
content.
Changes Since the Preliminary Results
Based on our analysis of the comments received, we have made
certain changes to the margin calculations. These changes are discussed
in the relevant sections of the Decision Memo.
Final Results of Review
We determine that the following weighted-average margin percentages
exist for the period March 1, 2009, through February 28, 2010:
------------------------------------------------------------------------
Manufacturer/exporter Percent margin
------------------------------------------------------------------------
Coinbra-Frutesp (SA).......................... *
Fischer S.A. Comercio, Industria, and 3.97
Agricultura..................................
Montecitrus Trading S.A....................... *
Sucocitrico Cutrale, S.A...................... 0.42 (de minimis)
------------------------------------------------------------------------
* No shipments or sales subject to this review.
Assessment
The Department shall determine, and CBP shall assess, antidumping
duties on all appropriate entries.
We have calculated importer-specific ad valorem duty assessment
rates based on the ratio of the total amount of antidumping duties
calculated for the examined sales to the total entered value of the
sales. We will instruct CBP to assess antidumping duties on all
appropriate entries covered by this review if any importer-specific
assessment rate is above de minimis (i.e., less than 0.50 percent). The
Department intends to issue assessment instructions to CBP 15 days
after the date of publication of these final results of review.
The Department clarified its ``automatic assessment'' regulation on
May 6, 2003. See Assessment Policy Notice, 68 FR 23954. This
clarification will apply to entries of subject merchandise during the
POR produced by companies included in these final
[[Page 50179]]
results of review for which the reviewed companies did not know their
merchandise was destined for the United States. In such instances, we
will instruct CBP to liquidate unreviewed entries at the all-others
rate established in the less-than-fair-value (LTFV) investigation if
there is no rate for the intermediate company(ies) involved in the
transaction.
Cash Deposit Requirements
Further, the following deposit requirements will be effective for
all shipments of OJ from Brazil entered, or withdrawn from warehouse,
for consumption on or after the publication date of the final results
of this administrative review, as provided for by section 751(a)(2)(C)
of the Act: (1) The cash deposit rates for the reviewed companies will
be the rates shown above, except if the rate is less than 0.50 percent,
de minimis within the meaning of 19 CFR 351.106(c)(1), the cash deposit
will be zero; (2) for previously investigated companies not listed
above, the cash deposit rate will continue to be the company-specific
rate published for the most recent period; (3) if the exporter is not a
firm covered in this review, or the LTFV investigation, but the
manufacturer is, the cash deposit rate will be the rate established for
the most recent period for the manufacturer of the merchandise; and (4)
the cash deposit rate for all other manufacturers or exporters will
continue to be 16.51 percent, the all-others rate established in the
LTFV investigation. See Antidumping Duty Order: Certain Orange Juice
from Brazil, 72 FR 12183 (Mar. 9, 2006). These deposit requirements
shall remain in effect until further notice.
Notification to Importers
This notice serves as a final reminder to importers of their
responsibility, under 19 CFR 351.402(f)(2), to file a certificate
regarding the reimbursement of antidumping duties prior to liquidation
of the relevant entries during this review period. Failure to comply
with this requirement could result in the Secretary's presumption that
reimbursement of antidumping duties occurred and the subsequent
assessment of double antidumping duties.
Notification to Interested Parties
This notice serves as the only reminder to parties subject to
administrative protective order (APO) of their responsibility
concerning the disposition of proprietary information disclosed under
APO in accordance with 19 CFR 351.305(a)(3). Timely written
notification of return/destruction of APO materials or conversion to
judicial protective order is hereby requested. Failure to comply with
the regulations and the terms of an APO is a sanctionable violation.
We are issuing and publishing these results of review in accordance
with sections 751(a)(1) and 777(i)(1) of the Act.
Dated: August 5, 2011.
Ronald K. Lorentzen,
Deputy Assistant Secretary for Import Administration.
Appendix--Issues in Decision Memorandum
1. Offsetting of Negative Margins.
2. Capping Interest Revenue by Credit Expenses.
3. Request for Revocation by Cutrale.
4. U.S. Brix Level.
5. Inventory Carrying Costs for Cutrale's U.S. Sales.
6. Calculation of Cutrale's U.S. Indirect Selling Expense Rate.
7. Calculation of Cutrale's General and Administrative Expense
Rate.
8. Calculation of Fischer's International Freight Expenses.
9. Use of Fischer's Home Market Sample Sales in Calculating
Normal Value and Constructed Value Profit.
[FR Doc. 2011-20563 Filed 8-11-11; 8:45 am]
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