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Notice

Frozen Concentrated Orange Juice from Brazil; Preliminary Results and Partial Rescission of Antidumping Duty Administrative Review

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Information about this document as published in the Federal Register.

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AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

SUMMARY:

In response to a request by the petitioners and one producer/exporter of the subject merchandise, the Department of Commerce is conducting an administrative review of the antidumping duty order on frozen concentrated orange juice from Brazil. This review covers one manufacturer/exporter of the subject merchandise to the United States. The period of review is May 1, 2000, through April 30, 2001.

We have preliminarily determined that no sales have been made below the normal value by Branco Peres Citrus S.A. in this review. In addition, we have preliminarily determined to rescind the review with respect to Citrovita Agro-Industrial Ltda., CTM Citrus S.A., and Sucorrico S.A. If these preliminary results are adopted in the final results of this administrative review, we will instruct the Customs Service not to assess antidumping duties on any entries subject to this review.

We invite interested parties to comment on these preliminary results. Parties who wish to submit comments in this proceeding are requested to submit with each argument: (1) a statement of the issue; and (2) a brief summary of the argument.

EFFECTIVE DATE:

April 17, 2002.

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FOR FURTHER INFORMATION CONTACT:

Irina Itkin or Elizabeth Eastwood, Office of AD/CVD Enforcement, Office 2, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC, 20230; telephone (202) 482-0656 or (202) 482-3874, respectively.

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SUPPLEMENTARY INFORMATION:

Applicable Statute and Regulations

Unless otherwise indicated, all citations to the Tariff Act of 1930, as amended (the Act), are references to the provisions effective January 1, 1995, the effective date of the amendments made to the Act by the Uruguay Round Agreements Act (URAA). In addition, unless otherwise indicated, all citations are to the Department's regulations at 19 CFR part 351 (2001).

Background

On May 1, 2001, the Department of Commerce (the Department) published in the Federal Register a notice of “Opportunity to Request an Administrative Review” of the antidumping duty order on frozen concentrated orange juice (FCOJ) from Brazil (66 FR 21740).

In accordance with 19 CFR 351.213(b)(1), on May 31, 2001, one producer and exporter of FCOJ, Branco Peres Citrus, S.A. (Branco Peres), requested an administrative review covering the period May 1, 2000, through April 30, 2001. On May 31, 2001, the petitioners, 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., also requested an administrative review for the following four producers and exporters of FCOJ: Branco Peres; Citrovita Agro-Industrial Ltda. and its affiliated parties Cambuhy MC Industrial Ltda. and Cambuhy Citrus Comercial e Exportadora (collectively “Citrovita”); CTM Citrus S.A. (CTM); and Sucorrico S.A. (Sucorrico). On June 4, 2001, we issued questionnaires to each of these companies.

On June 19, 2001, the Department initiated an administrative review for Branco Peres, Citrovita and its affiliates Cambuhy and Cambuhy Exportadora, CTM, and Sucorrico (66 FR 32934).

On August 1, 2001, Sucorrico informed the Department that it had no shipments of subject merchandise to the United States during the period of review (POR). We reviewed Customs data to confirm that neither Sucorrico nor CTM had shipments of subject merchandise during the POR. Consequently, in accordance with 19 CFR 351.213(d)(3) and consistent with our practice, we are preliminarily rescinding our review for CTM and Sucorrico. For further discussion, see the “Partial Rescission of Review” section of this notice, below.

In August 2001, we received a response from Branco Peres to sections Start Printed Page 18860A through D of the Department's questionnaire and issued a supplemental questionnaire to the respondent. We received a response to the supplemental questionnaire in September 2001.

In January 2002, the petitioners withdrew their request for review for Citrovita. Consequently, we are also preliminarily rescinding our review for Citrovita. For further discussion, see the “Partial Rescission of Review” section of this notice, below.

In January and February 2002, we issued additional supplemental questionnaires to Branco Peres. We received responses to these supplemental questionnaires in February and March 2002.

Scope of the Order

The merchandise covered by this review is frozen concentrated orange juice from Brazil. The merchandise is currently classifiable under item 2009.11.00 of the Harmonized Tariff Schedule of the United States (HTSUS). The HTSUS item number is provided for convenience and for customs purposes. The written description of the scope of this proceeding is dispositive.

Period of Review

The POR is May 1, 2000, through April 30, 2001.

Partial Rescission of Review

As noted above, Sucorrico informed the Department that it had no shipments of subject merchandise to the United States during the POR. We have confirmed with the Customs Service that neither Sucorrico nor CTM had shipments of subject merchandise during the POR. Therefore, in accordance with 19 CFR 351.213(d)(3) and consistent with the Department's practice, we are preliminarily rescinding our review with respect to CTM and Sucorrico. (See e.g., Certain Welded Carbon Steel Pipe and Tube from Turkey; Final Results and Partial Rescission of Antidumping Administrative Review, 63 FR 35190, 35191 (June 29, 1998); and Certain Fresh Cut Flowers from Colombia; Final Results and Partial Rescission of Antidumping Duty Administrative Review, 62 FR 53287, 53288 (Oct. 14, 1997).)

In addition, on January 9, 2002, the petitioners withdrew their request for an administrative review of Citrovita. Although the petitioners asked to withdraw their review request after the 90-day time limit specified in 19 CFR 351.213(d)(1), the review for this company had not yet progressed beyond a point where it would have been unreasonable to allow the petitioners to withdraw their request for review. Therefore, in accordance with 19 CFR 351.213(d)(1) and consistent with our practice, we are also rescinding our review with respect to Citrovita.

Comparison Methodology

To determine whether sales of FCOJ from Brazil to the United States were made at less than normal value (NV), we compared the export price (EP) to the NV, as specified in the “Export Price” and “Normal Value” sections of this notice, below.

When making comparisons in accordance with section 771(16) of the Act, we considered all products sold in the home market as described in the “Scope of the Review” section of this notice, above, that were in the ordinary course of trade for purposes of determining appropriate product comparisons to U.S. sales.

Level of Trade

In accordance with section 773(a)(1)(B) of the Act, to the extent practicable, we determine NV based on sales in the comparison market at the same level of trade as EP. The NV level of trade is that of the starting-price sales in the comparison market or, when NV is based on CV, that of the sales from which we derive selling, general and administrative expenses (SG&A) and profit. For EP, it is also the level of the starting-price sales, which is usually from the exporter to the importer.

To determine whether NV sales are at a different level of trade than EP sales, we examine stages in the marketing process and selling functions along the chain of distribution between the producer and the unaffiliated customer. If the comparison-market sales are at a different level of trade, and the difference affects price comparability, as manifested in a pattern of consistent price differences between the sales on which NV is based and comparison-market sales at the level of trade of the export transaction, we make a level-of-trade adjustment under section 773(a)(7)(A) of the Act.

Branco Peres claimed that it made home market and U.S. sales at only one level of trade (i.e., sales to end users). Because Branco Peres performed the same selling activities for sales to all customers in the home market and the United States, we determined that these sales are at the same level of trade. Therefore, no level of trade adjustment is warranted for Branco Peres.

Export Price

For sales by Branco Peres, we based the starting price on EP, in accordance with section 772(a) of the Act, because the subject merchandise was sold to unaffiliated purchasers in the United States prior to importation and because constructed export price methodology was not otherwise applicable.

We based EP on the gross unit price to the first unaffiliated purchaser in the United States. Where appropriate, we made deductions for foreign inland freight, foreign warehousing expenses and foreign brokerage and handling expenses, in accordance with section 772(c)(2)(A) of the Act. We recalculated warehousing expenses using the per-ton amount charged by the warehouse each month and the average inventory carrying period reported by Branco Peres.

Normal Value

In order to determine whether there is a sufficient volume of sales in the home market to serve as a viable basis for calculating NV (i.e., the aggregate volume of home market sales of the foreign like product is greater than five percent of the aggregate volume of U.S. sales), we compared the volume of Branco Peres" home market sales of the foreign like product to the volume of U.S. sales of subject merchandise, in accordance with 19 CFR 351.404(b). Based on this comparison, we determined that Branco Peres had a viable home market during the POR. Consequently, we based NV on home market sales.

Cost Investigation

In the eleventh administrative review, which was the most recently completed segment of the proceeding involving Branco Peres, the Department initiated an investigation to determine whether Branco Peres made home market sales during that POR at prices below the cost of production (COP). See Frozen Concentrated Orange Juice from Brazil; Final Results and Partial Rescission of Antidumping Duty Administrative Review, 64 FR 43650, 43652 (August 11, 1999). Even though we resorted to the use of total facts available in that review, we were able to complete the cost investigation because we were able to use the data provided by the petitioner to perform the cost test. Consequently, because the Department disregarded certain sales that failed the cost test in that review, pursuant to section 773(b)(2)(A)(ii) of the Act, we initiated a cost investigation on Branco Peres at the time we initiated this antidumping review because there were reasonable grounds to believe or suspect that Branco Peres had made home market sales below its COP.

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In this review, we calculated the COP based on the sum of Branco Peres' costs of materials and fabrication for the foreign like product, plus amounts for general and administrative and financing expenses, in accordance with section 773(b)(3) of the Act. We made the following adjustments to the reported cost data:

1. We increased the cost of raw materials to account for certain purchases of oranges recognized as an expense during the POR, as well as certain payments made to a company for which Branco Peres provided tolling services;

2. We deducted the net amount of PIS and COFINS taxes charged on home market sales revenue which was included in COP;

3. We deducted PIS and COFINS taxes from the reported offset for by-product revenue;

4. We allocated the cost of processing equally to tolled and non-tolled products; and

5. We disallowed income from certain long-term loans as an offset to Branco Peres's financing expenses. In addition, we disallowed a deduction for PIS and COFINS taxes paid on financial income. We recalculated financing expenses accordingly.

We compared the COP to home market prices of the foreign like product, as required under section 773(b) of the Act, in order to determine whether these sales had been made at prices below the COP. On a product-specific basis, we compared the COP to home market prices, less any applicable movement charges, selling expenses, and packing costs.

In determining whether to disregard home market sales made at prices below the COP, we examined whether such sales were made: 1) in substantial quantities within an extended period of time; and 2) at prices which permitted the recovery of all costs within a reasonable period of time in the normal course of trade. See section 773(b)(1) of the Act.

Pursuant to section 773(b)(2)(c)(i) of the Act, where less than 20 percent of a company's sales of a given product are made at prices less than the COP, we do not disregard any below-cost sales of that product because we determine that the below-cost sales were not made in “substantial quantities.” Where 20 percent or more of Branco Peres' sales of a given product were at prices below the COP, we find that sales of the merchandise were made in “substantial quantities” within an extended period of time, as defined in sections 773(b)(2)(B) and (C) of the Act. In this case, we also determine whether such sales were made at prices which would permit recovery of all costs within a reasonable period of time, in accordance with section 773(b)(2)(D) of the Act.

We found that 100 percent of Branco Peres" home market sales were made at prices above the cost of production. Therefore, we did not disregard any home market sales. Accordingly, we based NV on delivered prices to home market customers because we found that all home market sales were in the ordinary course of trade. We made deductions from the starting price for taxes in accordance with section 773(a)(6)(B)(iii) of the Act. See Notice of Preliminary Determination of Sales at Less Than Fair Value and Postponement of Final Determination: Carbon and Certain Alloy Steel Wire Rod from Brazil issued on April 1, 2002.

Pursuant to section 773(a)(6)(C)(iii) of the Act and 19 CFR 351.410(c), we made a circumstance-of-sale adjustment for credit expenses. We recalculated credit expenses to use the average interest rate for the POR, rather than the annualized monthly rate reported by Branco Peres.

We also deducted home market packing costs and added U.S. packing costs in accordance with sections 773(a)(6)(A) and (B) of the Act.

Currency Conversion

We made currency conversions into U.S. dollars in accordance with section 773A(a) of the Act, based on the exchange rates in effect on the dates of the U.S. sales as certified by the Federal Reserve Bank.

Section 773A(a) of the Act directs the Department to use a daily exchange rate in order to convert foreign currencies into U.S. dollars unless the daily rate involves a fluctuation. It is the Department's practice to find that a fluctuation exists when the daily exchange rate differs from the benchmark rate by 2.25 percent. The benchmark is defined as the moving average of rates for the past 40 business days. When we determine a fluctuation to have existed, we substitute the benchmark for the daily rate, in accordance with established practice.

Preliminary Results of Review

As a result of our review, we preliminarily determine that the following margin exists for the period May 1, 2000, through April 30, 2001:

Manufacturer/ExporterPercent Margin
Branco Peres ­Citrus S.A0.00

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. Interested parties may request a hearing within 30 days of the date of publication. Any hearing, if requested, will be held seven days after the date rebuttal briefs are filed. Interested parties may submit case 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 37 days after the date of publication of this notice. The Department will publish a notice of the final results of this administrative review, which will include the results of its analysis of issues raised in any such case briefs, within 120 days of the publication of these preliminary results.

Upon completion of this administrative review, the Department shall determine, and the Customs Service shall assess, antidumping duties on all appropriate entries. We have calculated importer-specific assessment rates for the merchandise in question by aggregating the dumping margins calculated for all U.S. sales to each importer and dividing this amount by the total quantity of those sales. The assessment rate will be assessed uniformly on all entries of that particular importer made during the POR, where appropriate. The Department will issue appraisement instructions directly to the Customs Service.

Further, the following deposit requirements will be effective for all shipments of FCOJ 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)(1) of the Act: 1) the cash deposit rates for Branco Peres will be the rate 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, the cash deposit will be zero; 2) for previously reviewed or 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, a prior review, or the 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 will continue to be 1.96 Start Printed Page 18862percent, the all others rate established in the LTFV investigation.

These deposit requirements, when imposed, shall remain in effect until publication of the final results of the next administrative review.

This notice 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 in accordance with sections 751(a)(1) and 777(i)(1) of the Act.

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Dated: April 10, 2002

Faryar Shirzad,

Assistant Secretary for Import Administration.

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[FR Doc. 02-9332 Filed 4-16-02; 8:45 am]

BILLING CODE 3510-DS-S