[Federal Register Volume 77, Number 70 (Wednesday, April 11, 2012)]
[Notices]
[Pages 21724-21733]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-8381]
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DEPARTMENT OF COMMERCE
International Trade Administration
[A-351-840]
Certain Orange Juice From Brazil: Preliminary Results of
Antidumping Duty Administrative Review and Preliminary No Shipment
Determination
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
SUMMARY: In response to a request by the petitioners and three
producers/exporters of the subject merchandise, the Department of
Commerce (the Department) is conducting an administrative review of the
antidumping duty order on certain orange juice (OJ) from Brazil with
respect to four producers/exporters of the subject merchandise to the
United States. This is the fifth period of review (POR), covering March
1, 2010, through February 28, 2011.
[[Page 21725]]
We have preliminarily determined that sales to the United States
have been made below normal value (NV), and, therefore, are subject to
antidumping duties. If these preliminary results are adopted in the
final results of this review, we will instruct U.S. Customs and Border
Protection (CBP) to assess antidumping duties on all appropriate
entries.
DATES: Effective Date: April 11, 2012.
FOR FURTHER INFORMATION CONTACT: Blaine Wiltse or Hector Rodriguez, 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-
6345 or (202) 482-0629, respectively.
SUPPLEMENTARY INFORMATION:
Background
In March 2006, the Department published in the Federal Register an
antidumping duty order on OJ from Brazil.\1\ Subsequently, on March 1,
2011, the Department published in the Federal Register a notice of
opportunity to request an administrative review of the antidumping duty
order on OJ from Brazil for the period March 1, 2010, through February
28, 2011.\2\
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\1\ See Antidumping Duty Order: Certain Orange Juice from
Brazil, 71 FR 12183 (Mar. 9, 2006) (OJ Order).
\2\ See Antidumping or Countervailing Duty Order, Finding, or
Suspended Investigation; Opportunity to Request Administrative
Review, 76 FR 11197 (Mar. 1, 2011).
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In accordance with 19 CFR 351.213(b)(2), in March 2011, the
Department received requests to conduct an administrative review of the
antidumping duty order on OJ from Brazil from three producers/exporters
of the subject merchandise: Fischer S.A. Comercio, Industria, and
Agricultura (Fischer); Louis Dreyfus Commodities Agroindustrial S.A.
(Louis Dreyfus); and Sucocitrico Cutrale, S.A. (Cutrale). In its
request for review, Louis Dreyfus claimed that it is the successor-in-
interest to a former producer/exporter of OJ, Coinbra Frutesp S.A.
(Coinbra Frutesp).
In accordance with 19 CFR 351.213(b)(1), also in March 2011, the
Department received requests to conduct an administrative review for
Cutrale and Fischer from the petitioners (Florida Citrus Mutual and
Citrus World, Inc.) and Southern Gardens Citrus Processing Corporation
(Southern Gardens), a domestic interested party. Additionally, in March
2011, Southern Gardens requested that the Department also conduct an
administrative review for Coinbra Frutesp and Montecitrus Trading S.A.
(Montecitrus).
In April 2011, the Department initiated an administrative review
for all five companies (i.e., Cutrale, Coinbra Frutesp, Fischer, Louis
Dreyfus, and Montecitrus).\3\
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\3\ See Initiation of Antidumping and Countervailing Duty
Administrative Reviews, 76 FR 23546 (Apr. 27, 2011) (Initiation
Notice).
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In May 2011, we solicited information from Louis Dreyfus regarding
its claim that it is the successor-in-interest to Coinbra Frutesp.
Louis Dreyfus supplied this information in the same month. Also in May
2011, we received a statement from Montecitrus that it had no shipments
of subject merchandise to the United States during the POR, and we
issued questionnaires to Cutrale, Fischer, and Louis Dreyfus.
In May and June 2011, we received responses to section A of the
Department's questionnaire (i.e., the section related to general
information), as well as responses to sections B and C of the
questionnaire (i.e., the sections covering sales in the home market and
United States) from Cutrale, Fischer, and Louis Dreyfus. We also
received responses from Cutrale and Fischer to section D of the
questionnaire (i.e., the section covering cost of production (COP) and
constructed value (CV)) in June 2011.
In July 2011, the petitioners filed a company-specific sales-below-
cost allegation for Louis Dreyfus. The Department initiated a sales-
below-cost investigation for Louis Dreyfus in this month, and we
instructed Louis Dreyfus to respond to section D of the Department's
questionnaire. See the July 29, 2011, memorandum from the team to James
Maeder entitled, ``The Petitioners' Allegation of Sales Below the Cost
of Production for Louis Dreyfus Commodities Agroindustrial S.A.''
(Louis Dreyfus Cost Investigation Memo). In August 2011, we received
Louis Dreyfus' response to section D of the questionnaire.
From August 2011 through March 2012, we issued supplemental sales
and cost questionnaires to Cutrale, Fischer, and Louis Dreyfus. We also
issued a supplemental successor-in-interest questionnaire to Louis
Dreyfus in August 2011. We received responses to these supplemental
questionnaires from September 2011 through March 2012.
On October 21, 2011, the Department extended the deadline for the
preliminary results of this review until no later than March 30,
2012.\4\
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\4\ See Certain Orange Juice from Brazil: Notice of Extension of
Time Limits for the Preliminary Results of Antidumping Duty
Administrative Review, 76 FR 65496, 65497 (Oct. 21, 2011).
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On March 23, 2012, the petitioners filed a targeted dumping
allegation against Cutrale and requested that the Department consider
this allegation in the event that it determines to apply in this
administrative review the Final Modification dumping margin calculation
methodology it published on February 14, 2012.\5\ \6\ Cutrale filed a
response to the petitioners' targeting dumping allegation on March 26,
2012.
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\5\ See Antidumping Proceedings: Calculation of the Weighted
Average Dumping Margin and Assessment Rate in Certain Antidumping
Duty Proceedings: Final Modification, 77 FR 8101 (Feb. 14, 2012).
(Final Modification).
\6\ We note that we did not apply the Final Modification dumping
margin calculation methodology for purposes of these preliminary
results. Per the Final Modification, the new methodology will be
applied in reviews for which the preliminary results are scheduled
to be issued more than 60 days after the date of publication of the
Final Modification, (i.e., April 16, 2012).
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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,\7\ Cutrale,
Fischer, and Montecitrus.
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\7\ As discussed below, we preliminarily find that Louis Dreyfus
is the successor-in-interest to Coinbra Frutesp. See the
``Successor-in Interest'' section of this notice.
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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
[[Page 21726]]
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.
Successor-in-Interest
In making a normal successor-in-interest determination, the
Department examines several factors including, but not limited to,
changes in: (1) Management; (2) production facilities; (3) supplier
relationships; and (4) customer base. See Notice of Final Results of
Changed Circumstances Antidumping Duty Administrative Review:
Polychloroprene Rubber From Japan, 67 FR 58 (Jan. 2, 2002), and Brass
Sheet and Strip from Canada; Final Results of Antidumping Duty
Administrative Review, 57 FR 20460 (May 13, 1992). Although no one of
these factors is dispositive, the Department will generally consider
the new company to be the successor to the previous company if its
resulting operation is not materially dissimilar to that of its
predecessor. See Industrial Phosphoric Acid from Israel; Final Results
of Antidumping Duty Changed Circumstances Review, 59 FR 6944 (Feb. 14,
1994); and Notice of Final Determination of Sales at Less Than Fair
Value and Affirmative Final Determination of Critical Circumstances:
Certain Orange Juice from Brazil, 71 FR 2183 (Jan. 13, 2006).
As noted above, in its request for a review, Louis Dreyfus claimed
that it is the successor-in-interest to Coinbra Frutesp. As a result,
on May 2, 2011, we requested that Louis Dreyfus address the four
factors noted above (i.e., management, production facilities for the
subject merchandise, supplier relationships, and customer base) in
order to determine whether Louis Dreyfus is indeed the successor-in-
interest to Coinbra Frutesp.
On May 24, 2011, Louis Dreyfus submitted its response to the
Department's request. In this submission, Louis Dreyfus provided
evidence that Coinbra Frutesp Agroinstrial Ltda. (Coinbra Frutesp Ag.),
the wholly owned subsidiary of Coinbra Frutesp and producer of subject
merchandise, underwent a series of corporate restructurings, including
changes to the company's name. According to Louis Dreyfus, these name
changes had no effect on the company's operations. Louis Dreyfus
explained that there were no significant changes to Coinbra Frutesp
Ag's management, production facilities for the subject merchandise,
supplier relationships, or customer base as a result of the change in
corporate structure.
On August 22, 2011, we asked further questions and requested
additional documentation from Louis Dreyfus to support its statements
that the name changes did not affect its management, production
facilities, supplier relationships, and customer base. Louis Dreyfus
provided this information on September 13, 2011.
Based on our analysis of Louis Dreyfus' May 24, 2011, and September
13, 2011, submissions, we preliminarily find that Coinbra Frutesp Ag's
organizational structure, management, production facilities, supplier
relationships, and customers have remained largely unchanged from the
time of the OJ order. Further, we preliminarily find that Louis Dreyfus
operates as the same business entity as Coinbra Frutesp Ag with respect
to the production and sale of OJ. Thus, we preliminarily find that
Louis Dreyfus is the successor-in-interest to Coinbra Frutesp and, as a
consequence, the Department finds Louis Dreyfus' U.S. sales of FCOJ
would be subject merchandise in this proceeding.\8\ For further
discussion, see the March 30, 2012, memorandum to James Maeder, Office
Director, from Elizabeth Eastwood, Senior Analyst, entitled,
``Successor-In-Interest Determination for Coinbra Frutesp S.A./Coinbra
Frutesp Agroindustrial Ltda. and Louis Dreyfus Commodities
Agroindustrial S.A. in the 2010-2011 Antidumping Duty Administrative
Review of Certain Orange Juice from Brazil.''
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\8\ Louis Dreyfus reported making only U.S. sales of NFC during
the POR.
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Preliminary Determination of No Shipments
As noted in the ``Background'' section above, Montecitrus indicated
that it had no shipments of subject merchandise to the United States
during the POR. The Department subsequently confirmed with CBP the no-
shipment claim made by Montecitrus. Because the evidence on the record
indicates that Montecitrus did not export subject merchandise to the
United States during the POR, we preliminarily determine that
Montecitrus did not have any reviewable transactions during the POR.
Since the implementation of the 1997 regulations, our practice
concerning no-shipment respondents had been to rescind the
administrative review if the respondent certifies that it had no
shipments and we have confirmed through our examination of CBP data
that there were no shipments of subject merchandise during the POR. See
Antidumping Duties; Countervailing Duties, 62 FR 27296, 27393 (May 19,
1997). As a result, in such circumstances, we normally instruct 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, ``automatic assessment'' clarification, 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).
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 Montecitrus, and exported
by other parties, at the all-others rate. See, e.g., Magnesium Metal
From the Russian Federation: Preliminary Results of Antidumping Duty
Administrative Review, 75 FR 26922 (May 13, 2010), unchanged in
Magnesium Metal From the Russian Federation: Final Results of
Antidumping Duty Administrative Review, 75 FR 56989 (Sept. 17, 2010).
In addition, the Department finds 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
Montecitrus and issue appropriate instructions to CBP based on the
final results of the review. See the ``Assessment Rates'' section of
this notice below.
Comparisons to Normal Value
To determine whether sales of OJ by Cutrale, Fischer, and Louis
Dreyfus to the United States were made at less than NV, we compared
constructed export price (CEP) to the NV, as described in the
``Constructed Export Price'' and ``Normal Value'' sections of this
notice.
Pursuant to 19 CFR 351.414(c)(2) and (e)(1), we compared the CEPs
of individual U.S. transactions to the weighted-average NV of the
foreign like product where there were sales made in the ordinary course
of trade, as discussed in the ``Cost of Production Analysis'' section
below.
[[Page 21727]]
Product Comparisons
In accordance with section 771(16) of the Act, we considered all
products produced by Cutrale, Fischer, and Louis Dreyfus, and covered
by the description in the ``Scope of the Order'' section, above, to be
foreign like products for purposes of determining appropriate product
comparisons to U.S. sales. Pursuant to 19 CFR 351.414(e)(2), we
compared U.S. sales of OJ to sales of OJ in the home market within the
contemporaneous window period, which extends from three months prior to
the month of the first U.S. sale until two months after the last U.S.
sale. 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 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, we made product comparisons
using CV, as discussed in the ``Calculation of Normal Value Based on
Constructed Value'' section below. See section 773(a)(4) of the Act.
Constructed Export Price
In accordance with section 772(b) of the Act, we calculated 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
and Fischer's U.S. sales as CEP sales because they were made in the
United States by their U.S. affiliates on behalf of the respondents,
within the meaning of section 772(b) of the Act.
Regarding Louis Dreyfus, this respondent reported its U.S. sales as
export price (EP) transactions because it stated that Louis Dreyfus in
Brazil, not its U.S. affiliate, negotiated the sales with the U.S.
customer. However, because the document relied upon by Louis Dreyfus to
support its claim does not establish the material terms of sale and the
U.S. affiliate, Louis Dreyfus Citrus Inc. (LDCI), is identified as the
seller on the commercial invoice to the U.S. customer, we are treating
all of Louis Dreyfus's U.S. sales as CEP transactions in accordance
with our practice.
A. Cutrale
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. Additionally,
for certain sales made pursuant to futures contracts which were noticed
prior to the POR, but were shipped and invoiced during the POR, we
adjusted the reported date of sale for these transactions to base it on
the invoice date. Where appropriate, we also made adjustments for
rebates.
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 (offset by customer-specific reimbursements); U.S. customs
duties, harbor maintenance fees and merchandise processing fees (offset
by U.S. duty drawback and customs duty reimbursements); U.S. inland
freight expenses; and U.S. warehousing expenses. We capped
reimbursements for brokerage and handling expenses by the amount of
brokerage and handling expenses incurred on the subject merchandise, in
accordance with our practice.\9\ We also capped U.S. customs duty
reimbursements, as well as U.S. duty drawback, by the amount of U.S.
customs duties incurred on the subject merchandise, in accordance with
our practice. Id.
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\9\ See, e.g, Certain Orange Juice from Brazil: Final Results
and Partial Rescission of Antidumping Duty Administrative Review, 73
FR 46584 (Aug. 11, 2008) (2005-2007 OJ from Brazil), and
accompanying Issues and Decision Memorandum at Comment 7; Certain
Orange Juice from Brazil: Final Results of Antidumping Duty
Administrative Review, 74 FR 40167 (Aug. 11, 2009) (2007-2008 OJ
from Brazil), and accompanying Issues and Decision Memorandum at
Comment 3; 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)
(2008-2009 OJ from Brazil), and accompanying Issues and Decision
Memorandum at Comment 2; and 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, 19318 (Apr. 7, 2011) (2009-2010 OJ from Brazil Preliminary
Results), unchanged in 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, 76 FR 50176 (Aug. 12, 2011) (2009-2010 OJ from
Brazil).
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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., commissions, imputed credit expenses, and repacking
expenses (offset by pallet and drum revenue)), and indirect selling
expenses (including inventory carrying costs and other indirect selling
expenses). We capped U.S. pallet revenue and drum revenue by the amount
of repacking expenses, in accordance with our practice. Id. In
addition, we recalculated inventory carrying costs using the total
manufacturing costs, adjusted as noted in the ``Calculation of Cost of
Production'' section of this notice, below.
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. affiliate on their sales
of the subject merchandise in the United States and the profit
associated with those sales.
For further discussion of the changes made to Cutrale's reported
U.S. sales data, see the March 30, 2012, memorandum from Blaine Wiltse,
Senior Analyst, to the File, entitled ``Calculation Adjustments for
Sucocitrico Cutrale Ltda. for the Preliminary Results'' (Cutrale
Calculation Memo).
B. Fischer
We based CEP on the packed delivered prices to unaffiliated
purchasers in the United States. 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 expenses;
foreign warehousing expenses; foreign brokerage and handling expenses;
ocean freight expenses (offset by bunker fuel adjustments); marine
insurance expenses; U.S. brokerage and handling expenses; U.S. customs
duties, harbor maintenance fees and merchandise processing fees (offset
by U.S. duty drawback); U.S. inland freight expenses; and U.S.
warehousing expenses. We capped reimbursements for U.S. customs duties,
as well as U.S. duty drawback, by the amount of U.S. customs duties
incurred on the subject merchandise, in accordance with our practice.
See 2005-2007 OJ from Brazil at Comment 7; 2007-2008 OJ from
[[Page 21728]]
Brazil at Comment 3; and 2008-2009 OJ from Brazil at Comment 2. We also
capped bunker fuel adjustments by the amount of ocean freight expenses
incurred on the subject merchandise, in accordance with our practice.
Id. Further, we determined that the international freight expenses
provided by Fischer's affiliated freight provider were not at arm's
length. Therefore, for all sales shipped by Fischer's affiliate, we
assigned the international freight rate charged by Fischer's affiliate
to an unaffiliated party to restate them on an arm's-length basis. For
further discussion, see the March 30, 2012, memorandum to the file from
Hector Rodriguez, Analyst, entitled ``Calculation Adjustments for
Fischer S.A. Comercio, Industria, and Agricultura for the Preliminary
Results'' (Fischer Calculation Memo).
In accordance with sections 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., additional processing expenses, imputed credit
expenses, and repacking expenses), and indirect selling expenses
(including inventory carrying costs and other indirect selling
expenses).
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.
C. Louis Dreyfus
On February 9, 2012, we issued a supplemental questionnaire to
Louis Dreyfus in which we requested that Louis Dreyfus provide
commercial invoices and ocean freight invoices for all exports of FCOJ
or NFC from Brazil by its affiliated exporter, Louis Dreyfus Citrus
Trading Ltda. (Louis Dreyfus Trading), to the United States during the
month of March. In its response, Louis Dreyfus stated that it did not
have any other sales of subject merchandise to the United States during
March 2011 (i.e., outside the POR). Because (1) Louis Dreyfus did not
respond directly to the Department's question; and (2) there appears to
exist contradictory information \10\ on the record of this proceeding,
we intend to issue an additional supplemental questionnaire to Louis
Dreyfus to allow it to address this issue. We will consider this
information for purposes of our final results. However, if Louis
Dreyfus fails to respond adequately to this subsequent request for
information, for purposes of the final results, we may consider whether
the application of facts available is warranted, pursuant to section
776(a) of the Act.
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\10\ Because this contradictory information is proprietary in
nature, we cannot discuss it here.
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Regarding the U.S. sales that Louis Dreyfus did report, Louis
Dreyfus used the date of an email order confirmation from its U.S.
customer as the date of sale for its U.S. sales. The Department's
regulations at 19 CFR 351.401(i) provide that the Department may use a
date other than the date of invoice if the different date better
reflects the date on which the material terms of sale are established.
In this instance, we find that the essential terms of sale are not set
as of the date of the email between the parties because the quantity
and entry date changed after that date. Therefore, we have used as the
date of sale the date that Louis Dreyfus shipped its merchandise from
Brazil because this date is earlier than the date LDCI issued the
commercial invoice and better reflects the date on which the material
terms of sale were established, in accordance with our practice \11\
and 19 CFR 351.401(i). For further discussion of this issue, see the
March 30, 2012, memorandum from Elizabeth Eastwood, Senior Analyst, to
the File, entitled ``Calculation Adjustments for Louis Dreyfus
Commodities Agroindustrial S.A. for the Preliminary Results'' (Louis
Dreyfus Sales Calculation Memo).
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\11\ See, e.g., Certain Hot-Rolled Carbon Steel Flat Products
from Romania: Final Results of Antidumping Duty Administrative
Review, 72 FR 71357 (Dec. 17, 2007) and accompanying Issues and
Decision Memorandum at Comment 1; Certain Steel Concrete Reinforcing
Bars from Turkey; Preliminary Results of Antidumping Duty
Administrative Review and New Shipper Review and Notice of Intent to
Revoke in Part, 72 FR 25253, 25256 (May 4, 2007), unchanged in
Certain Steel Concrete Reinforcing Bars From Turkey; Final Results
of Antidumping Duty Administrative Review and New Shipper Review and
Determination To Revoke in Part, 72 FR 62630 (Nov. 6, 2007); and
Notice of Final Determination of Sales at Less Than Fair Value and
Negative Final Determination of Critical Circumstances: Certain
Frozen and Canned Warmwater Shrimp From Thailand, 69 FR 76918 (Dec.
23, 2004), and accompanying Issues and Decision Memorandum at
Comment 10.
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We based CEP on the packed delivered prices to unaffiliated
purchasers in the United States. Where appropriate, we made adjustments
for billing adjustments. 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 expenses; foreign
brokerage and handling expenses; ocean freight expenses; U.S. brokerage
and handling expenses (offset by customer-specific reimbursements); and
U.S. customs duties (offset by customs duty reimbursements). We
included certain U.S. brokerage and handling expenses for which Louis
Dreyfus was not reimbursed by its U.S. customer but were omitted from
the U.S. sales listing. See Louis Dreyfus Sales Calculation Memo for
further discussion. We capped reimbursements for brokerage and handling
expenses by the amount of brokerage and handling expenses incurred on
the subject merchandise, in accordance with our practice. See, e.g.,
2005-2007 OJ from Brazil at Comment 7; 2007-2008 OJ from Brazil at
Comment 3; and 2008-2009 OJ from Brazil at Comment 2. We also capped
U.S. customs duty reimbursements by the amount of U.S. customs duties
incurred on the subject merchandise, in accordance with our practice.
Id.
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., imputed credit expenses), and indirect selling expenses
(including other indirect selling expenses). Because Louis Dreyfus did
not report indirect selling expenses for LDCI, we calculated these
expenses using the audited financial statements for LDCI's parent
company contained in Louis Dreyfus' May 24, 2011, response. For further
discussion of this calculation, see the Louis Dreyfus Sales Calculation
Memo. We intend to issue an additional supplemental questionnaire to
request that Louis Dreyfus provide a calculation of LDCI's indirect
selling expenses. We will consider this information for purposes of our
final results. However, if Louis Dreyfus fails to respond adequately to
this subsequent request for information, for purposes of the final
results, we may consider whether the application of facts available is
warranted, pursuant to section 776(a) of the Act.
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 Louis Dreyfus and its U.S. affiliate on their
sales of the subject merchandise in the United States and the profit
associated with those sales.
[[Page 21729]]
Normal Value
A. Home Market Viability and Selection of Comparison Markets
In order to determine whether there was a sufficient volume of
sales in the home market to serve as a viable basis for calculating NV,
we compared the volume of home market sales of the foreign like product
to the volume of U.S. sales of the subject merchandise, in accordance
with section 773(a)(1)(C) of the Act.
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. Level of Trade
Section 773(a)(1)(B)(i) of the Act states that, to the extent
practicable, the Department will calculate NV based on sales at the
same level of trade (LOT) as the EP or CEP. Sales are made at different
LOTs if they are made at different marketing stages (or their
equivalent). See 19 CFR 351.412(c)(2). Substantial differences in
selling activities are a necessary, but not sufficient, condition for
determining that there is a difference in the stages of marketing. Id.,
see also Notice of Final Determination of Sales at Less Than Fair
Value: Certain Cut-to-Length Carbon Steel Plate From South Africa, 62
FR 61731, 61732 (Nov. 19, 1997) (Plate from South Africa). In order to
determine whether the comparison market sales were at different stages
in the marketing process than the U.S. sales, we reviewed the
distribution system in each market (i.e., the chain of distribution),
including selling functions, class of customer (customer category), and
the level of selling expenses for each type of sale.
Pursuant to section 773(a)(1)(B)(i) of the Act, in identifying LOTs
for EP and comparison market sales (i.e., NV based on either home
market or third country prices),\12\ we consider the starting prices
before any adjustments. For CEP sales, we consider only the selling
activities reflected in the price after the deduction of expenses and
profit under section 772(d) of the Act. See Micron Technology, Inc. v.
United States, 243 F.3d 1301, 1314 (Fed. Cir. 2001).
---------------------------------------------------------------------------
\12\ Where NV is based on CV, we determine the NV LOT based on
the LOT of the sales from which we derive selling, general and
administrative (SG&A) expenses, and profit for CV, where possible.
---------------------------------------------------------------------------
When the Department is unable to match U.S. sales of the foreign
like product in the comparison market at the same LOT as the EP or CEP,
the Department may compare the U.S. sale to sales at a different LOT in
the comparison market. In comparing EP or CEP sales at a different LOT
in the comparison market, where available data make it practicable, we
make an LOT adjustment under section 773(a)(7)(A) of the Act. Finally,
for CEP sales only, if the NV LOT is at a more advanced stage of
distribution than the CEP LOT and there is no basis for determining
whether the difference in LOTs between NV and CEP affects price
comparability (i.e., no LOT adjustment was practicable), the Department
shall grant a CEP offset, as provided in section 773(a)(7)(B) of the
Act. See Plate from South Africa, 62 FR at 61732-33.
In this administrative review, 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.
1. Cutrale
Cutrale reported that it made CEP sales through one channel of
distribution in the United States (i.e., sales via an affiliated
reseller) and thus the selling activities it performed did not vary by
the type of customer. We examined the selling activities performed for
this channel and found that Cutrale performed the following selling
functions: sales forecasting, order input/processing, freight and
delivery, packing, quality guarantees, and maintaining inventory at the
port of exportation.
Selling activities can be generally grouped into four selling
function categories for analysis: (1) Sales and marketing; (2) freight
and delivery; (3) inventory maintenance and warehousing; and 4)
warranty and technical support. See 2008-2009 OJ from Brazil at Comment
7; and Certain Frozen Warmwater Shrimp From India: Preliminary Results
and Preliminary Partial Rescission of Antidumping Duty Administrative
Review, 74 FR 9991, 9996 (Mar. 9, 2009), unchanged in Certain Frozen
Warmwater Shrimp from India: Final Results and Partial Rescission of
Antidumping Duty Administrative Review, 74 FR 33409 (July 13, 2009).
Based on these selling function categories, we find that Cutrale
performed sales and marketing, freight and delivery services, inventory
maintenance and warehousing, and warranty and technical support for
U.S. sales. Because all sales in the United States are made through a
single distribution channel and the selling activities did not differ
within this channel, we preliminarily determine that there is one LOT
in the U.S. market.
With respect to the home market, Cutrale reported that it made
sales through one channel of distribution (i.e., direct sales to soft
drink manufacturers). We examined the selling activities performed for
home market sales and found that Cutrale performed the following
selling functions: sales forecasting, direct sales personnel, order
input/processing, advertising, freight and delivery, packing, quality
guarantees, after-sales services, and inventory maintenance at the
factory. Accordingly, based on the four selling function categories
listed above, we find that Cutrale performed sales and marketing,
freight and delivery, inventory maintenance and warehousing, and
warranty and technical support for home market sales. Because all home
market sales are made through a single distribution channel, and the
selling activities did not differ within this channel, we preliminarily
determine that there is one LOT in the home market for Cutrale.
Finally, we compared the CEP LOT to the home market LOT and found
that the selling functions performed for U.S. and home market customers
do not differ significantly. Specifically, we found that the
differences were limited to the following activities: (1) Cutrale
performed limited, general image advertising in the home market; (2)
Cutrale entered orders into the company's computer system for home
market sales based on orders placed by customers, while it generated
sales documents for sales to its U.S. affiliate based on a general
shipping schedule; (3) Cutrale has direct sales personnel assigned to
servicing its home market customers while employing an export sales
office whose staff is assigned to service all export market customers,
including U.S. customers; (4) Cutrale provided limited technical
assistance and after-sale services to home market customers during the
POR; and (5) Cutrale provides quality guarantees directly to its home
market customers, while it provides similar guarantees for its U.S.
sales through its U.S. affiliate.
According to 19 CFR 351.412(c)(2), the Department will determine
that sales are made at different levels of trade if they are made at
different marketing stages (or their equivalent). Substantial
differences in selling activities are a necessary, but not sufficient,
condition for determining that there is a difference in the stage of
marketing. Therefore, because we determine that substantial differences
in Cutrale's selling activities do not exist
[[Page 21730]]
across markets, we determine that sales to the U.S. and home markets
during the POR were made at the same LOT. As a result, neither a LOT
adjustment nor a CEP offset is warranted for Cutrale. This
determination is consistent with findings in previous reviews.\13\ See,
e.g., 2005-2007 OJ from Brazil at Comment 5; 2007-2008 OJ from Brazil
at Comment 2; 2008-2009 OJ from Brazil at Comment 7; and 2009-2010 OJ
from Brazil Preliminary Results, 76 FR at 19319, unchanged in 2009-2010
OJ from Brazil.
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\13\ This finding is also consistent with Cutrale's statement
that there were no significant differences between the sales process
that it performed during the current POR and that which it performed
in both markets during the previous segment of the proceeding. See
Cutrale's supplemental section A response, submitted on September
15, 2011, at page 1.
---------------------------------------------------------------------------
2. Louis Dreyfus
Louis Dreyfus made CEP sales \14\ through one channel of
distribution in the United States (i.e., sales via an affiliated
reseller) and, thus, the selling activities it performed did not vary
by the type of customer. We examined the selling activities performed
for this channel and found that Louis Dreyfus performed the following
selling functions: customer contact and price negotiation; order input/
processing; employing direct sales personnel; providing guarantees;
providing inventory maintenance; and arranging for freight. Selling
activities can be generally grouped into four selling function
categories for analysis: (1) Sales and marketing; (2) freight and
delivery; (3) inventory maintenance and warehousing; and (4) warranty
and technical support. Accordingly, based on these selling function
categories, we find that Louis Dreyfus performed sales and marketing,
freight and delivery services, and inventory maintenance and
warehousing for U.S. sales. Because all sales in the United States are
made through a single distribution channel, we preliminarily determine
that there is one LOT in the U.S. market.
---------------------------------------------------------------------------
\14\ Louis Dreyfus reported that its U.S. sales were EP, not
CEP, sales. However, as noted in the ``Constructed Export Price''
section of this notice, above, we have reclassified Louis Dreyfus'
U.S. sales as CEP sales for purposes of the preliminary results.
---------------------------------------------------------------------------
With respect to the home market, Louis Dreyfus reported that it
made sales through two channels of distribution to two types of
customers (i.e., large soft drink manufacturers/industrial juice
producers and small soft drink manufacturers). However, we find that
the selling activities it performed did not vary significantly by the
channel of distribution or the type of customer. Therefore, we have
considered the selling functions for all customers in the aggregate. We
examined the selling activities performed for home market sales, and
found that Louis Dreyfus performed the following selling functions:\15\
customer contact and price negotiation; order input/processing;
employing direct sales personnel; providing guarantees; and packing. In
addition, for certain home market sales, Louis Dreyfus also indicated
that it performed sales forecasting and inventory maintenance.
Accordingly, based on the selling function categories listed above, we
find that Louis Dreyfus performed sales and marketing and inventory
maintenance and warehousing for home market sales. Because all home
market sales are made through a single distribution channel, we
preliminarily determine that there is one LOT in the home market for
Louis Dreyfus.
---------------------------------------------------------------------------
\15\ In its selling functions chart, Louis Dreyfus indicated
that it performed freight and delivery for certain home market
sales; however, it did not report these expenses for any home market
sales. Therefore, we are not considering this selling function for
purposes of our analysis.
---------------------------------------------------------------------------
Finally, we compared the CEP LOT to the home market LOT and found
that the selling functions performed for U.S. and home market customers
do not differ significantly. Therefore, we determine that sales to the
U.S. and home markets during the POR were made at the same LOT, and as
a result, neither a LOT adjustment nor a CEP offset is warranted for
Louis Dreyfus.
3. Fischer
Because all of Fischer's home market sales failed the cost test
during the POR, we based NV on CV. When NV is based on CV, the NV LOT
is that of the sales from which we derive selling, general, and
administrative (SG&A) expenses and profit. See Notice of Preliminary
Determination of Sales at Less Than Fair Value and Postponement of
Final Determination: Certain Frozen and Canned Warmwater Shrimp from
Brazil, 69 FR 47081 (Aug. 4, 2004), unchanged in Notice of Final
Determination of Sales at Less Than Fair Value: Certain Frozen and
Canned Warmwater Shrimp from Brazil, 69 FR 76910 (Dec. 23, 2004). In
accordance with 19 CFR 351.412(d), the Department will make its LOT
determination under paragraph (d)(2) of this section on the basis of
sales of the foreign like product by the producer or exporter. We based
the selling expenses and profit for Fischer on the weighted-average
selling expenses incurred and profits earned by the other respondents
in the proceeding (i.e., Cutrale and Louis Dreyfus). Thus, as described
below, we attempted to determine the LOT of the sales from which we
derived selling expenses and profit for CV.
Fischer reported that it made CEP sales through one channel of
distribution in the United States (i.e., sales via an affiliated
reseller) and, thus, the selling activities it performed did not vary
by the type of customer. We examined the selling activities performed
for this channel and found that Fischer performed the following selling
functions: customer contact and price negotiation; order processing;
arranging for freight and the provision of customs clearance/brokerage
services; and inventory maintenance. Selling activities can be
generally grouped into four selling function categories for analysis:
(1) Sales and marketing; (2) freight and delivery; (3) inventory
maintenance and warehousing; and (4) warranty and technical support.
Accordingly, based on these selling function categories, we find that
Fischer performed sales and marketing, freight and delivery services,
and inventory maintenance and warehousing for U.S. sales. Because all
sales in the United States are made through a single distribution
channel and the selling activities did not differ within this channel,
we preliminarily determine that there is one LOT in the U.S. market.
As noted above, based on the four selling function categories, we
find that Cutrale performed sales and marketing, freight and delivery,
inventory maintenance and warehousing, and warranty and technical
support for its home market sales. In addition, we find that Louis
Dreyfus performed sales and marketing and inventory maintenance and
warehousing for its home market sales. Because Cutrale and Louis
Dreyfus did not perform the same selling functions in the home market,
we could not determine the LOT of the sales from which we derived
selling expenses and profit for CV. As a result, we could not compare
the CEP LOT to the home market LOT. Therefore, we did not make a LOT
adjustment or CEP offset to NV for Fischer. See the ``Calculation of
Normal Value Based on Constructed Value'' section of this notice,
below.
C. Affiliated-Party Transactions and Arm's-Length Test
During the POR, Cutrale and Louis Dreyfus made sales in the home
market to affiliated parties, as defined in section 771(33) of the Act.
Consequently, we tested these sales to ensure that they were made at
arm's-length prices, in accordance with 19 CFR 351.403(c). To test
whether the
[[Page 21731]]
sales to the affiliates were made at arm's-length prices, we compared
the unit prices of sales to the affiliated and unaffiliated customers
net of all movement charges, direct selling expenses, and packing
expenses. Pursuant to 19 CFR 351.403(c) and in accordance with the
Department's practice, 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
LOT, we determined that the sales made to the affiliated party were at
arm's-length. See Antidumping Proceedings: Affiliated Party Sales in
the Ordinary Course of Trade, 67 FR 69186 (Nov. 15, 2002) (establishing
that the overall ratio calculated for an affiliate must be between 98
and 102 percent in order for sales to be considered in the ordinary
course of trade and used in the NV calculation). Sales to affiliated
customers in the home market that were not made at arm's-length prices
were excluded from our analysis because we considered these sales to be
outside the ordinary course of trade. See section 771(15) of the Act
and 19 CFR 351.102(b).
D. Cost of Production Analysis
We found that Cutrale and Fischer made sales below the COP in the
2008-2009 administrative review, the most recently completed segment of
this proceeding as of the date of initiation of this review, and such
sales were disregarded. See 2008-2009 OJ from Brazil. Thus, in
accordance with section 773(b)(2)(A)(ii) of the Act, there are
reasonable grounds to believe or suspect that Cutrale and Fischer made
home market sales at prices below the cost of producing the merchandise
in the current POR.
Moreover, on July 18, 2011, the petitioners alleged that Louis
Dreyfus made sales in the home market, during the POR that were below
the COP. Based on our analysis of the allegation made by the
petitioner, we found that Louis Dreyfus' home market sales which fell
below the COP were representative of the broader range of sales which
may be used as a basis for NV. Therefore, we determined, on this basis
as well, that there were reasonable grounds to believe or suspect that
Louis Dreyfus' sales of OJ in the home market were made at prices below
its COP. Accordingly, pursuant to section 773(b) of the Act, we
initiated a sales-below-cost investigation to determine whether Louis
Dreyfus' sales were made at prices below its COP. See Louis Dreyfus
Cost Investigation Memo.
We examined the cost data for Cutrale, Fischer, and Louis Dreyfus
and determined that our quarterly cost methodology is not warranted
and, therefore, we have applied our standard methodology of using
annual costs based on the reported data, adjusted as described below.
1. Calculation of Cost of Production
In accordance with section 773(b)(3) of the Act, we calculated the
respondents' COPs based on the sum of their costs of materials and
conversion for the foreign like product, plus amounts for general and
administrative (G&A) expenses and interest expenses (see ``Test of
Comparison Market Sales Prices'' section, below, for treatment of home
market selling expenses).
a. Cutrale
The Department relied on the COP data submitted by Cutrale in its
most recently submitted cost database for the COP calculation, except
in the following instances:
i. We used Cutrale's home market actual brix level data to adjust
Cutrale's home market costs to ensure that these are stated on a
pounds-solid basis using actual brix; and
ii. We revised Cutrale's calculation of its G&A expense rate to
exclude from the numerator of the calculation the change in fair value
of biological assets (i.e., orange trees). We intend to issue an
additional supplemental questionnaire to Cutrale to allow it to provide
further information on the valuation of these assets.
For further discussion of this adjustment, see the Cutrale
Calculation Memo.
b. Fischer
The Department relied on the COP data submitted by Fischer in its
first cost database, rather than its cost database submitted in
December 2011, because Fischer made certain unexplained adjustments to
its reported costs. We intend to issue an additional supplemental
questionnaire to Fischer to allow it to provide further information
regarding these adjustments. We adjusted Fischer's reported cost data
as follows:
i. We adjusted Fischer's financial expense calculation to
disallow long term interest income and to include the total amount
of Fischer's realized hedge results as recorded in Fischer's income
statement.
ii. We revised Fischer's G&A expense ratio calculation to
include ``other'' operating expenses related to provisions and
disposal of fixed assets.
iii. In accordance with the transactions disregarded rule (i.e.,
section 773(f)(2) of the Act) we adjusted Fischer's cost of
manufacturing (COM) to reflect the market value for the sale of
certain by-products to its affiliated trade company.
For further discussion of these adjustments, see the Fischer
Calculation Memo.
c. Louis Dreyfus
The Department relied on the COP data submitted by Louis Dreyfus in
its most recently submitted cost database for the COP calculation,
except in the following instances:
i. We revised the denominator of Louis Dreyfus' reported G&A
expense ratio to reflect the company-wide fiscal year 2010 cost of
sales reflected on Louis Dreyfus' audited income statement. We
adjusted the cost of sales for by-product revenue, packing expenses,
and the difference between Louis Dreyfus' growing season costs
reported to the Department and the growing season costs recorded in
the company's normal books and records. To calculate these
adjustments, we determined the relative percentage of each type of
expense or adjustment to Louis Dreyfus' fiscal year 2010 cost of
sales. We then applied the percentages to the parent company's
fiscal year 2010 cost of sales to determine the adjustment to the
denominator.
ii. We revised the numerator of Louis Dreyfus' reported
financial expense ratio to include only that portion of the claimed
short-term interest income offset that the record indicates was
generated by short-term interest bearing assets related to working
capital. We also revised the denominator of the financial expense
ratio (i.e., Louis Dreyfus' parent company's cost of sales) to
reflect the same adjustments made to G&A (i.e., by-product revenue,
packing expenses, and growing season cost differences), as detailed
above.
For further discussion of these adjustments, see the March 30,
2012, memorandum from LaVonne Clark to Neal M. Halper entitled, ``Cost
of Production and Constructed Value Calculation Adjustments for the
Preliminary Results--Louis Dreyfus Citrus Inc. and Louis Dreyfus
Commodities Agroindustrial S.A.''
2. Test of Comparison Market Sales Prices
On a product-specific basis, we compared the adjusted weighted-
average COP to the home market sales prices of the foreign like
product, as required under section 773(b) of the Act, in order to
determine whether the sales prices were below the COP. For purposes of
this comparison, we used COP exclusive of selling and packing expenses.
The prices (inclusive of billing adjustments, where appropriate) were
exclusive of any applicable movement charges, direct and indirect
selling expenses and packing expenses.
[[Page 21732]]
3. Results of the COP Test
In determining whether to disregard home market sales made at
prices below the COP, we examined, in accordance with sections
773(b)(1)(A) and (B) of the Act: (1) Whether, within an extended period
of time, such sales were made in substantial quantities; and (2)
whether such sales were made at prices which permitted the recovery of
all costs within a reasonable period of time in the normal course of
trade. Where less than 20 percent of the respondent's home market sales
of a given product 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 within an extended period
of time and in ``substantial quantities.'' Where 20 percent or more of
a respondent's sales of a given product are at prices less than the
COP, we disregard the below-cost sales when: (1) They were made within
an extended period of time in ``substantial quantities,'' in accordance
with sections 773(b)(2)(B) and (C) of the Act, and (2) based on our
comparison of prices to the weighted-average COPs for the POR, they
were at prices which would not permit the recovery of all costs within
a reasonable period of time, in accordance with section 773(b)(2)(D) of
the Act.
We found that, for certain products, more than 20 percent of
Cutrale's and Louis Dreyfus', and all of Fischer's, home market sales
were at prices less than the COP and, in addition, such sales did not
provide for the recovery of costs within a reasonable period of time.
We therefore excluded these sales from our analysis. We used the
remaining sales as the basis for determining NV for Cutrale and Louis
Dreyfus in accordance with section 773(b)(1) of the Act.
For those U.S. sales of subject merchandise for which there were no
home market sales in the ordinary course of trade, we compared CEPs to
CV in accordance with section 773(a)(4) of the Act. See the
``Calculation of Normal Value Based on Constructed Value'' section
below.
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 billing adjustments and interest revenue, in
accordance with 19 CFR 351.401(c). We have treated Cutrale's home
market interest revenue as a price adjustment, in accordance with 19
CFR 351.401(c) and 351.102(b). We also made adjustments, where
appropriate, to the starting price for Brazilian taxes, in accordance
with section 773(a)(6)(B)(iii) of the Act.
In addition we made deductions pursuant to section 773(a)(6)(C) of
the Act for home market credit expenses. We recalculated Cutrale's home
market credit expenses to base the calculation on the gross unit price,
inclusive of home market interest revenue, but net of taxes and billing
adjustments. 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.
We recalculated home market inventory carrying costs using the
manufacturing costs reported in Cutrale's most recent cost response,
adjusted as noted in the ``Calculation of Cost of Production'' section
of this notice, above. For further discussion of these adjustments, see
the Cutrale Calculation Memo.
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.
Finally, we made adjustments for differences in costs attributable
to differences in the physical characteristics of the merchandise, in
accordance with section 773(a)(6)(C)(ii) of the Act and 19 CFR 351.411.
2. Louis Dreyfus
We calculated NV based on delivered prices to unaffiliated
customers. We made adjustments, where appropriate, to the starting
price for billing adjustments in accordance with 19 CFR 351.401(c). We
also made adjustments, where appropriate, to the starting price for
Brazilian taxes, in accordance with section 773(a)(6)(B)(iii) of the
Act.
In addition, we made deductions pursuant to section 773(a)(6)(C) of
the Act for home market credit expenses. We deducted home market
packing costs and added U.S. packing costs, in accordance with sections
773(a)(6)(A) and (B) of the Act.
Finally, we made adjustments for differences in costs attributable
to differences in the physical characteristics of the merchandise, in
accordance with section 773(a)(6)(C)(ii) of the Act and 19 CFR 351.411.
F. Calculation of Normal Value Based on Constructed Value
Section 773(a)(4) of the Act provides that where NV cannot be based
on comparison market sales, NV may be based on CV. Accordingly, for all
of Fischer's sales and for certain sales made by Louis Dreyfus, we
based NV on CV because there were no home market sales in the ordinary
course of trade that could be properly compared to those U.S. sales.
Section 773(e) of the Act provides that CV shall be based on the
sum of the cost of materials and fabrication for the imported
merchandise, plus amounts for SG&A expense (including financing
expenses), profit, and U.S. packing costs. We calculated respondents'
materials, G&A, and financing costs as described in the ``Cost of
Production Analysis'' section, above.
For comparisons to CEP, we deducted from CV the respondents'
weighted-average home market direct selling expenses.
Because Fischer did not have home market sales in the ordinary
course of trade, the Department cannot determine profit under section
773(e)(2)(A) of the Act, which requires sales by the respondent in
question in the ordinary course of trade in a comparison market.
Likewise, because Fischer does not have sales of any product in the
same general category of products as the subject merchandise, we are
unable to apply alternative (i) of section 773(e)(2)(B) of the Act.
Alternative (ii) of section 773(e)(2)(B) of the Act allows for the
Department to use the weighted average of the actual amounts incurred
and realized by exporters or producers that are subject to the
investigation or review (other than the exporter or producer described
in clause (i)) for SG&A expenses, and for profits, in connection with
the production and sale of a foreign like product, in the ordinary
course of trade, for consumption in the foreign country. Further,
because there are two other respondents in this administrative review,
the Department is applying alternative (ii) and has based Fischer's CV
selling expenses and profit rate on the weighted average of the data of
Cutrale and Louis Dreyfus. For further discussion, see the Fischer
Calculation Memo.
Currency Conversion
We made currency conversions into U.S. dollars, in accordance with
section 773A of the Act and 19 CFR 351.415, based on the exchange rates
in effect on the dates of the U.S. sales as certified by the Federal
Reserve Bank.
Preliminary Results of the Review
We preliminarily determine that weighted-average dumping margins
exist for the respondents for the period March 1, 2010, through
February 28, 2011, as follows:
[[Page 21733]]
------------------------------------------------------------------------
Percent
Manufacturer/exporter margin
------------------------------------------------------------------------
Sucocitrico Cutrale, S.A...................................... 2.81
Fischer S.A. Comercio, Industria, and Agricultura............. 8.73
Louis Dreyfus Commodities Agroindustrial S.A.................. 22.03
Montecitrus Trading S.A....................................... (*)
------------------------------------------------------------------------
* No shipments or sales subject to this review.
Disclosure and Public Hearing
The Department will disclose to parties the calculations performed
in connection with these preliminary results within five days of the
date of publication of this notice. See 19 CFR 351.224(b). Pursuant to
19 CFR 351.309, interested parties may submit cases briefs not later
than 30 days after the date of publication of this notice. Rebuttal
briefs, limited to issues raised in the case briefs, may be filed not
later than five days after the time limit for filing the case briefs.
Parties who submit case briefs or rebuttal briefs in this proceeding
are requested to submit with each argument: (1) A statement of the
issue; (2) a brief summary of the argument; and (3) a table of
authorities. See 19 CFR 351.309(c)(2).
Pursuant to 19 CFR 351.310(c), 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,
filed electronically using Import Administration's Antidumping and
Countervailing Duty Centralized Electronic Service System (IA ACCESS).
An electronically filed document must be received successfully in its
entirety by the Department's electronic records system, IA ACCESS, by 5
p.m. Eastern Standard Time within 30 days after the date of 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
issues to be discussed. Issues raised in the hearing will be limited to
those raised in the respective case briefs and rebuttal briefs. The
Department will issue the final results of this administrative review,
including the results of its analysis of the issues raised in the case
briefs and rebuttals, not later than 120 days after the date of
publication of this notice, pursuant to section 751(a)(3)(A) of the
Act.
Assessment Rates
Upon completion of the administrative review, the Department shall
determine, and CBP shall assess, antidumping duties on all appropriate
entries, in accordance with 19 CFR 351.212. The Department will issue
appropriate appraisement instructions for the companies subject to this
review directly to CBP 15 days after the date of publication of the
final results of this review.
We will calculate 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 calculated in the final results of this review is above
de minimis. Pursuant to 19 CFR 351.106(c)(2), we will instruct CBP to
liquidate without regard to antidumping duties any entries for which
the assessment rate is de minimis. See 19 CFR 351.106(c)(1). The final
results of this review shall be the basis for the assessment of
antidumping duties on entries of merchandise covered by the final
results of this review and for future deposits of estimated duties,
where applicable.
The Department clarified its ``automatic assessment'' regulation on
May 6, 2003. See Assessment Policy Notice. This clarification will
apply to entries of subject merchandise during the POR produced by
companies included in these final results of review for which the
reviewed companies did not know that the merchandise they sold to the
intermediary (e.g., a reseller, trading company, or exporter) was
destined for the United States. In such instances, we will instruct CBP
to liquidate unreviewed entries at the all-others rate if there is no
rate for the intermediary involved in the transaction. See Assessment
Policy Notice for a full discussion of this clarification.
Cash Deposit Requirements
The following cash deposit requirements will be effective for all
shipments of the subject merchandise entered, or withdrawn from
warehouse, for consumption on or after the publication date of the
final results of this administrative review, as provided by section
751(a)(2)(C) of the Act: (1) The cash deposit rate for each specific
company listed above will be that established in the final results of
this review, except if the rate is less than 0.50 percent and,
therefore, de minimis within the meaning of 19 CFR 351.106(c)(1), in
which case the cash deposit rate will be zero; (2) for previously
reviewed or investigated companies not participating in this review,
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 original less than fair value (LTFV)
investigation, but the manufacturer is, the cash deposit rate will be
the rate established for the most recent period for the manufacturer of
the merchandise; and (4) the cash deposit rate for all other
manufacturers or exporters of NFC, and for FCOJM produced and/or
exported by Cargill Citrus Limitada will continue to be 16.51 percent,
the all-others rate made effective by the LTFV investigation. See OJ
Order, 71 FR at 12184. These deposit requirements, when imposed, shall
remain in effect until further notice.
Notification to Importers
This notice also serves as a preliminary reminder to importers of
their responsibility under 19 CFR 351.402(f) to file a certificate
regarding the reimbursement of antidumping duties prior to liquidation
of the relevant entries during this review period. Failure to comply
with this requirement could result in the Secretary's presumption that
reimbursement of antidumping duties occurred and the subsequent
assessment of double antidumping duties.
This administrative review and notice are published in accordance
with sections 751(a)(1) and 777(i)(1) of the Act and 19 CFR 351.221.
Dated: March 30, 2012.
Paul Piquado,
Assistant Secretary for Import Administration.
[FR Doc. 2012-8381 Filed 4-10-12; 8:45 am]
BILLING CODE 3510-DS-P