[Federal Register Volume 64, Number 66 (Wednesday, April 7, 1999)]
[Notices]
[Pages 16901-16904]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-8618]
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DEPARTMENT OF COMMERCE
International Trade Administration
[A-351-605]
Final Results of Expedited Sunset Review: Frozen Concentrated
Orange Juice from Brazil
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
ACTION: Notice of Final Results of Expedited Sunset Review: Frozen
Concentrated Orange Juice (FCOJ) from Brazil.
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SUMMARY: On December 2, 1998, the Department of Commerce (``the
Department'') initiated a sunset review of the antidumping order on
frozen concentrated orange juice from Brazil (63 FR 66527) pursuant to
section 751(c) of the Tariff Act of 1930, as amended (``the Act''). On
the basis of a notice of intent to participate and substantive comments
filed on behalf of the domestic interested parties and inadequate
response (in this case, no response) from respondent interested
parties, the Department determined to conduct an expedited review. As a
result of this review, the Department finds that revocation of the
antidumping order would be likely to lead to continuation or recurrence
of dumping at the levels indicated in the Final Results of the Review
section of this notice.
FOR FURTHER INFORMATION CONTACT: Darla D. Brown or Melissa G. Skinner,
Office of Policy for Import Administration, International Trade
Administration, U.S. Department of Commerce, 14th Street and
Constitution Avenue, NW, Washington, D.C. 20230; telephone: (202) 482-
3207 or (202) 482-1560, respectively.
EFFECTIVE DATE: April 7, 1999.
Statute and Regulations
This review was conducted pursuant to sections 751(c) and 752 of
the Act. The Department's procedures for the conduct of sunset reviews
are set forth in Procedures for Conducting Five-year (``Sunset'')
Reviews of Antidumping and Countervailing Duty Orders, 63 FR 13516
(March 20, 1998) (``Sunset Regulations''). Guidance on methodological
or analytical issues
[[Page 16902]]
relevant to the Department's conduct of sunset reviews is set forth in
the Department's Policy Bulletin 98:3--Policies Regarding the Conduct
of Five-year (``Sunset'') Reviews of Antidumping and Countervailing
Duty Orders; Policy Bulletin, 63 FR 18871 (April 16, 1998) (``Sunset
Policy Bulletin'').
Scope
The merchandise subject to this antidumping order is frozen
concentrated orange juice from Brazil. 1 Such merchandise is
currently classifiable under Harmonized Tariff Schedule (HTS) item
number 2009.11.00. The HTS item number is provided for convenience and
Customs purposes only. The written description remains dispositive.
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\1\ Pulpwash, a by-product of FCOJ which is composed of water-
extracted soluble orange solids, was found to be outside of the
scope of the order (55 FR 26721, June 29, 1990).
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This review covers imports from all manufacturers and exporters of
frozen concentrated orange juice from Brazil, other than imports
produced by Sucocitrico Cutrale, S.A., which was excluded from the
order (52 FR 16426, May 5, 1987), as well as Cargill Citrus Ltda,
Citrosuco Paulista S.A., Coopercitrus Industrial Frutesp S.A., and
Montectirus Trading S.A., for which the order was revoked (56 FR 52510,
October 21, 1991) and Frutropic, for which the order was also revoked
(59 FR 53137, October 21, 1994).
Background
On December 2, 1998, the Department initiated a sunset review of
the antidumping order on frozen concentrated orange juice from Brazil
(63 FR 66527), pursuant to section 751(c) of the Act. The Department
received a Notice of Intent to Participate on behalf of Florida Citrus
Mutual, Caulkins Indiantown Citrus Co., Citrus Belle, Citrus World,
Inc., Orange Co. of Florida, Inc., Peace River Citrus Products, Inc.,
and Southern Gardens Citrus Processors Corp. (collectively ``the
domestic interested parties'') on December 17, 1998, within the
deadline specified in section 351.218(d)(1)(i) of the Sunset
Regulations. Pursuant to 19 USC Sec. 1677(9)(G)(iii), the domestic
interested parties claimed interested party status as a coalition
representative of growers and processors of oranges and orange juice.
In addition, Florida Citrus Mutual, a trade association representing
growers of oranges used in the production of FCOJ, was the original
petitioner in the antidumping duty investigation of FCOJ from Brazil.
We received a complete substantive response from the domestic
interested parties on January 4, 1999, within the 30-day deadline
specified in the Sunset Regulations under section 351.218(d)(3)(i). We
did not receive a substantive response from any respondent interested
party to this proceeding. As a result, pursuant to 19 CFR
351.218(e)(1)(ii)(C), the Department determined to conduct an
expedited, 120-day, review of this order. On February 8, 1999, the
domestic interested parties submitted a copy of the preliminary results
of the latest administrative review of FCOJ from Brazil, covering the
period between May 1, 1997 and April 30, 1998.2
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\2\ See Frozen Concentrated Orange Juice from Brazil;
Preliminary Results and Partial Rescission of Antidumping Duty
Administrative Review, 64 FR 5767 (February 5, 1999).
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Determination
In accordance with section 751(c)(1) of the Act, the Department
conducted this review to determine whether revocation of the
antidumping order would be likely to lead to continuation or recurrence
of dumping. Section 752(c) of the Act provides that, in making this
determination, the Department shall consider the weighted-average
dumping margins determined in the investigation and subsequent reviews
and the volume of imports of the subject merchandise for the period
before and the period after the issuance of the antidumping order, and
shall provide to the International Trade Commission (``the
Commission'') the magnitude of the margin of dumping likely to prevail
if the order is revoked.
The Department's determinations concerning continuation or
recurrence of dumping and the magnitude of the margin are discussed
below. In addition, parties' comments with respect to continuation or
recurrence of dumping and the magnitude of the margin are addressed
within the respective sections below.
Continuation or Recurrence of Dumping
Drawing on the guidance provided in the legislative history
accompanying the Uruguay Round Agreements Act (``URAA''), specifically
the Statement of Administrative Action (``the SAA''), H.R. Doc. No.
103-316, vol. 1 (1994), the House Report, H.R. Rep. No. 103-826, pt. 1
(1994), and the Senate Report, S. Rep. No. 103-412 (1994), the
Department issued its Sunset Policy Bulletin providing guidance on
methodological and analytical issues, including the bases for
likelihood determinations. In its Sunset Policy Bulletin, the
Department indicated that determinations of likelihood will be made on
an order-wide basis (see section II.A.3). In addition, the Department
indicated that normally it will determine that revocation of an
antidumping order is likely to lead to continuation or recurrence of
dumping where (a) dumping continued at any level above de minimis after
the issuance of the order, (b) imports of the subject merchandise
ceased after the issuance of the order, or (c) dumping was eliminated
after the issuance of the order and import volumes for the subject
merchandise declined significantly (see section II.A.3).
In addition to guidance on likelihood provided in the Sunset Policy
Bulletin and legislative history, section 751(c)(4)(B) of the Act
provides that the Department shall determine that revocation of the
order would be likely to lead to continuation or recurrence of dumping
where a respondent interested party waives its participation in the
sunset review. In the instant review, the Department did not receive a
substantive response from any respondent interested party. Pursuant to
section 351.218(d)(2)(iii) of the Sunset Regulations, this constitutes
a waiver of participation.
The antidumping order on FCOJ from Brazil was published in the
Federal Register on May 5, 1987 (52 FR 16426). Since that time, the
Department has conducted several administrative reviews.3 On
October 21, 1991, the Department revoked the order with respect to
imports produced by Cargill Citrus Ltda, Citrosuco Paulista S.A.,
Coopercitrus Industrial Frutesp S.A., and Montectirus Trading S.A. (56
FR 52510, October 21, 1991). On October 21, 1994, the Department also
revoked
[[Page 16903]]
the order for Frutropic (59 FR 53137, October 21, 1994 ). The order
remains in effect for all other manufacturers and exporters of the
subject merchandise.
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\3\ See Frozen Concentrated Orange Juice from Brazil; Final
Results of Antidumping Duty Administrative Review, 55 FR 26721 (June
29, 1990); Frozen Concentrated Orange Juice from Brazil; Final
Results and Termination in Part of Antidumping Duty Administrative
Review, 55 FR 47502 (November 14, 1990); Frozen Concentrated Orange
Juice from Brazil; Final Results and Termination in Part of
Antidumping Duty Administrative Review; Revocation in Part of the
Antidumping Duty Order, 56 FR 52510 (October 21, 1991); Frozen
Concentrated Orange Juice from Brazil; Final Results and Termination
in Part of Antidumping Duty Administrative Review, 57 FR 12910
(April 14, 1992); Frozen Concentrated Orange Juice from Brazil;
Final Results of Antidumping Duty Administrative Review and
Revocation of Order in Part, 59 FR 53137 (October 21, 1994); Notice
of Final Results of Antidumping Duty Administrative Review: Frozen
Concentrated Orange Juice from Brazil, 62 FR 5798 (February 7,
1997); Frozen Concentrated Orange Juice from Brazil; Final Results
of Antidumping Duty Administrative Review, 62 FR 29328 (May 30,
1997); Frozen Concentrated Orange Juice from Brazil; Final Results
of Antidumping Duty Administrative Review, 63 FR 26145 (May 12,
1998).
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In its substantive response, the domestic interested parties argued
that the actions taken by producers and exporters of FCOJ during the
life of the order indicate that the likely effect of revocation of the
order in this case would be that dumping of FCOJ would continue or
resume, and that margins would increase (see Substantive Response of
the Domestic Interested Parties, January 4, 1999, at 3). With respect
to whether dumping continued at any level above de minimis after the
issuance of the order, the domestic interested parties stated that
while there have been determinations of de minimis or zero margins for
certain producers in the past, in the current administrative review
(covering entries during the period June 1997-May 1998), the Department
has found enough evidence of sales in home or third country markets
below cost of production of FCOJ to initiate a cost investigation (see
Substantive Response of the Domestic Interested Parties, January 4,
1999, at 4-5).
With respect to whether imports of the subject merchandise ceased
after the issuance of the order, the domestic interested parties
maintained that since FCOJ is a commodity product, the fact that import
volumes have risen or declined in absolute terms since the imposition
of the order is of lesser probative value (see id.). They went on to
argue that agricultural commodities, such as FCOJ, require additional
analysis, due to the perishable nature of the article and its
production cycles (see id.).
In conclusion, the domestic interested parties argued that the
Department should determine that there is a likelihood that dumping
would continue were the order revoked because dumping margins have
existed throughout the life of the order for some Brazilian exporters/
producers of FCOJ.
As discussed in Section II.A.3 of the Sunset Policy Bulletin, the
SAA at 890, and the House Report at 63-64, if companies continue
dumping with the discipline of an order in place, the Department may
reasonably infer that dumping would continue if the discipline were
removed. A dumping margin above de minimis continues to exist for
shipments of the subject merchandise from Branco Peres Citrus S.A.
4
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\4\ See Frozen Concentrated Orange Juice From Brazil: Final
Results of Antidumping Administrative Review, 63 FR 26145 (May 12,
1998).
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Consistent with section 752(c) of the Act, the Department also
considers the volume of imports before and after issuance of the order.
The Department's statistics on imports of FCOJ from Brazil between 1985
and 1998, demonstrate that in 1987, the year the order was imposed,
imports of FCOJ fell sharply (from approximately 2.2 billion liters in
1986 to approximately 2 million liters in 1987).5 Since the
imposition of the order, imports of FCOJ have not reached the pre-order
level; however, imports of subject merchandise have not consistently
decreased either.
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\5\ See U.S. Census Bureau Report IM146.
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As noted above, in conducting its sunset reviews, the Department
considers the weighted-average dumping margins and volume of imports
when determining whether revocation of an antidumping duty order would
lead to the continuation or recurrence of dumping. Based on this
analysis, the Department finds that the existence of dumping margins
above de minimis levels after the issuance of the order is highly
probative of the likelihood of continuation or recurrence of dumping.
Therefore, the Department finds no reason to consider the domestic
interested parties' argument that additional analysis is required for
antidumping orders on agricultural products. A deposit rate above a de
minimis level continues in effect for exports of the subject
merchandise by at least one known Brazilian manufacturer/exporter.
Therefore, given that dumping has continued over the life of the order,
respondent interested parties waived participation in this sunset
review, and absent argument and evidence to the contrary, the
Department determines that dumping is likely to continue if the order
were revoked.
Magnitude of the Margin
In the Sunset Policy Bulletin, the Department stated that it
normally will provide to the Commission the margin that was determined
in the final determination in the original investigation. Further, for
companies not specifically investigated or for companies that did not
begin shipping until after the order was issued, the Department
normally will provide a margin based on the ``all others'' rate from
the investigation. (See section II.B.1 of the Sunset Policy Bulletin.)
Exceptions to this policy include the use of a more recently calculated
margin, where appropriate, and consideration of duty absorption
determinations. (See sections II.B.2 and 3 of the Sunset Policy
Bulletin.)
The Department, in its final determination of sales at less than
fair value (``LTFV''), published a weighted-average dumping margin for
one Brazilian producer/exporter, Citrosuco Paulista, of frozen
concentrated orange juice (52 FR 8324, March 17, 1987). As discussed
above, the order with respect to Citrosuco Paulista has been revoked.
The final LTFV determination also contained an ``all others'' rate. We
note that, to date, the Department has not issued any duty absorption
findings in this case.
In its substantive response, the domestic interested parties
recommended that the Department deviate from its stated policy of
selecting rates from the original investigation. Specifically, the
domestic interested parties suggested that, because it is a commodity
product, FCOJ should not be treated as other industrial products, where
pricing may vary considerably from one producer to another. Rather,
they suggested that current market conditions will dictate the level of
dumping if there were no order. Therefore, the domestic interested
parties requested that the Department apply the new, higher, dumping
margin of 65.2 percent found in the preliminary results and partial
rescission of the most recent antidumping duty administrative review
(64 FR 5767, February 5, 1999).
Because the results of the ongoing administrative review have not
yet been finalized, the Department believes it is not appropriate to
rely on those results for the purpose of this determination. Further,
we note that, although FCOJ is a commodity product, the magnitude of
any margin of dumping is determined based on factors other than market
price alone, for example, cost of production. Therefore, absent
persuasive evidence to the contrary, the Department continues to
believe that as noted in the Sunset Policy Bulletin, the margins from
the original investigation are the only calculated rates that reflect
the behavior of exporters without the discipline of the order in place.
The Department finds no reason to deviate from its stated policy of
reporting the margins from the original investigation. The Department
finds the margins calculated in the original investigation are
probative of the behavior of Brazilian producers/exporters if the order
were revoked as they are the only margins which reflect their actions
absent the discipline of the order. Therefore, the Department will
report to the Commission all others rate from the original
investigation as
[[Page 16904]]
contained in the Final Results of Review section of this notice. The
Department has not reported the calculated margin for Citrosuco
Paulista, S.A., the only company with a calculated margin in the
investigation, because the order with respect to Citrosuco Paulista has
been revoked.
Final Results of Review
As a result of this review, the Department finds that revocation of
the antidumping order would likely lead to continuation or recurrence
of dumping at the margins listed below:
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Margin
Manufacturer/exporter (percent)
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All Others................................................. 1.96
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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 of the Department's regulations.
Timely 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.
This five-year (``sunset'') review and notice are in accordance
with sections 751(c), 752, and 777(i)(1) of the Act.
Dated: April 1, 1999.
Robert S. LaRussa,
Assistant Secretary for Import Administration.
[FR Doc. 99-8618 Filed 4-6-99; 8:45 am]
BILLING CODE 3510-DS-P