Frozen Concentrated Orange Juice From Brazil; Final Results of Antidumping Duty Administrative Review

DEPARTMENT OF COMMERCE

International Trade Administration

[A-351-605]

Frozen Concentrated Orange Juice From Brazil; Final Results of

Antidumping Duty Administrative Review

AGENCY: Import Administration, International Trade Administration,

Department of Commerce.

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SUMMARY: On January 14, 1998, the Department of Commerce published in

the Federal Register the preliminary results of the administrative

review of the antidumping duty order on frozen concentrated orange

juice from Brazil. This review covers two producers/exporters, Branco

Peres Citrus, S.A. and CTM Citrus, S.A. (formerly Citro-pectina). The

Department terminated the review with respect to another firm,

Citrovita S.A. See Frozen Concentrated Orange Juice from Brazil:

Preliminary Results of Administrative Review; Termination in Part; and

Intent Not to Revoke in Part, 63 FR 2202 (January 14, 1998). This

review covers the period May 1, 1993, through April 30, 1994.

We gave interested parties an opportunity to comment on our

preliminary results. We have based our analysis on the comments

received and have changed the results from those presented in the

preliminary results of review.

EFFECTIVE DATE: May 12, 1998.

FOR FURTHER INFORMATION CONTACT: Fabian Rivelis or Irina Itkin, Office

5, AD/CVD Enforcement, Group II, Import Administration, International

Trade Administration, U.S. Department of Commerce, 14th Street and

Constitution Avenue, NW, Washington, DC 20230; telephone: (202) 482-

3853 or (202) 482-0656, respectively.

SUPPLEMENTARY INFORMATION:

Background

On January 14, 1998, the Department of Commerce (the Department)

published in the Federal Register its preliminary results of the 1993-

1994 administrative review of the antidumping duty order on frozen

concentrated orange juice (FCOJ) from Brazil (62 FR 2202). The

Department has now completed this administrative review, in accordance

with section 751(a) of the Tariff Act of 1930, as amended (the Act).

Applicable Statute and Regulations

The Department is conducting this administrative review in

accordance with section 751 of the Act. Unless otherwise indicated, all

citations to the statute and to the Department's regulations are in

reference to the provisions as they existed on December 31, 1994.

Scope of the Review

The merchandise covered by this review is frozen concentrated

orange juice from Brazil. The merchandise is currently classifiable

under subheading 2009.11.00 of the Harmonized Tariff Schedule of the

United States (HTSUS). The HTSUS subheading is provided for convenience

and for customs purposes. The written description remains dispositive.

Analysis of Comments Received

We gave interested parties an opportunity to comment on the

preliminary results. We received comments only from Branco Peres Citrus

S.A. (Branco Peres).

Comment 1: Calculation of Comparison Market Commissions.

For the preliminary results, the Department based foreign market

value (FMV) on the applicable minimum export price 1 (MEP)

as a third-country offer for sale where no contemporaneous third-

country sale existed. In cases where FMV was based on the MEP, we used

the weighted average of the charges and adjustments reported for actual

third-country sales.

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\1\ During the period of review, the minimum export price was a

floor price set by the Carteira do Comercio Exterior de Banco do

Brasil (CACEX), the export department of the Bank of Brazil. Minimum

export prices were based on the price of FCOJ on the New York Cotton

Exchange. Because the price movements of FCOJ on the futures market

are irregular, the minimum export price may have remained the same

or may have changed several times within a month.

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According to Branco Peres, the Department erred in calculating a

single average commission amount and applying it to four separate MEPs

when calculating FMV. Branco Peres asserts that this methodology

understated the amount of the commission that it would have paid if the

merchandise had actually been sold at the MEP. Specifically, Branco

Peres maintains that the commission amount would have been based on a

fixed commission percentage and would have been higher than the average

commission used by the Department.

Branco Peres asserts that the calculation of the single average

commission amount is inconsistent with the calculation of U.S.

commissions, which was based on the fixed commission percentage for

each U.S. sale. Branco Peres maintains that the amount of both the

third country and U.S. commissions should be exactly the same because,

in every comparison, the U.S. price was exactly the same as the MEP.

According to Branco Peres, the Department's use of inconsistent

methodologies not only results in an unfair comparison, but also

generates a dumping margin greater than de minimis. Branco Peres

asserts that the Department should correct this error by deducting from

FMV a commission amount based on the fixed commission percentage.

Branco Peres also argues that the Department's use of a single

average commission amount for the period of review (POR) violated long-

standing Department policy. Branco Peres states that the Department's

practice in the 1993-1994 period for cases from Brazil, as illustrated

in Notice of Final Determination of Sales at Less Than Fair Value:

Certain Hot-Rolled Carbon Steel Flat Products from Brazil, 58 FR 37091,

37093 (July 9, 1993), was to determine expenses on a monthly basis

because Brazil's economy experienced hyper-inflation during that

period. Therefore, Branco Peres asserts that the Department must

calculate expenses based on the actual monthly expenses in effect for

each MEP period.

Nonetheless, Branco Peres argues that if the Department continues

to use a single average commission, it should revise its calculation to

include only those commissions related to sales which were

contemporaneous with its U.S. sales, under the Department's usual

price-to-price methodology for administrative reviews. Branco Peres

notes that the Department calculated a single average commission based

on the average commission expenses related to all third-country sales

to the Netherlands, even though only four of those sales were

contemporaneous with the U.S. sales in question.

DOC Position: We agree. Our review of the record of this case shows

that a fixed commission rate was in effect for all of Branco Peres'

export sales during the POR and that the payment of a commission based

on this rate is Branco Peres' normal business practice. Our calculation

of the average POR commissions understated the commissions Branco Peres

would have paid if it had made the sale at the MEP. Accordingly, we

have calculated commissions by applying the

[[Page 26146]]

commission rate to the MEP. This calculation is consistent with our

calculations for Branco Peres in the 1992-1993 review, where the MEP

was also used as an offer for sale to calculate FMV. See Notice of

Final Results of Antidumping Duty Administrative Review: Frozen

Concentrated Orange Juice from Brazil, 62 FR 5798 (February 7, 1997).

Comment 2: Revocation of the Antidumping Duty Order With Respect to

Branco Peres.

Branco Peres argues that, if the Department recalculates its

comparison market commissions, the Department should revoke the

antidumping duty order against it because its margin in this review

(1993-1994) is de minimis. Branco Peres notes that its margin in the

1995-1996 review was zero, and no review was conducted in the

intervening year. That review was terminated because both Branco Peres

and CTM withdrew their requests for review and there were no other

requests for review (see Frozen Concentrated Orange Juice from Brazil:

Termination of Antidumping Administrative Review, 60 FR 53163 (October

12, 1995)). Branco Peres cites section 351.222(d) of the Department's

new regulations, published on May 19, 1997, which permits revocation

after the Department has conducted reviews in the first and third years

of a three-year period and has found zero or de minimis dumping

margins. Branco Peres states that the Department's rationale not to

revoke it from the order after the 1995-1996 review period no longer

applies because the new regulations are now in effect.

Branco Peres asserts that it is similarly entitled to revocation

under section 353.25(a) of the Department's old regulations, because

that regulation required only that the company under review has ``sold

the merchandise at not less than foreign market value for a period of

at least three consecutive years.'' Branco Peres claims that it meets

this requirement because in the intervening year its entries were

liquidated at a zero duty deposit rate. Branco Peres asserts that

revocation now does not contradict the Department's final results in

the 1995-1996 review, where the Department stated that it had denied

revocation for a respondent which had withdrawn from the second period

of review. Branco Peres notes that in that case the Department could

not conclude that the respondent in question had exported the

merchandise at not less than fair value during the entire three year

period because, in the intervening year, it had entered merchandise at

deposit rates that were greater than de minimis. See 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, 52512 (October 21, 1991).

DOC Position: We disagree. The new regulations cited by Branco

Peres did not take effect until June 19, 1997, well after the

initiation of the 1995-1996 review. In addition, although it does not

affect the result here, we note that the instant review was initiated

prior to the effective date of the new regulations. As stated in the

final results of the 1995-1996 review, the Department can conclude that

a producer has sold merchandise at not less than fair value for three

consecutive years, within the meaning of 19 CFR 353.25(a), only

pursuant to administrative reviews actually conducted for each of the

three years. See Frozen Concentrated Orange Juice from Brazil: Final

Results of Antidumping Duty Administrative Review, 62 FR 29328 (May 30,

1997) (1995-1996 FCOJ Review). Because no administrative review was

conducted for the intervening 1994-1995 period, we cannot make this

conclusion. Accordingly, we have determined not to revoke the

antidumping duty order with respect to Branco Peres.

Final Results of Review

As a result of the comments received we have revised our

preliminary results and determine that the following margins exist for

the period May 1, 1993, through April 30, 1994:

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Percent

Manufacturer/exporter Review period margin

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Branco Peres.............................. 5/1/93-4/30/94 0.18

CTM Citrus S.A............................ 5/1/93-4/30/94 0.00

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The Department has not revoked the antidumping duty order with

respect to either Branco Peres or CTM Citrus S.A. (CTM) because neither

Branco Peres nor CTM has demonstrated three consecutive years of sales

at not less than FMV.

The Department shall determine, and the Customs Service shall

assess, antidumping duties on all appropriate entries. Individual

differences between United States Price and FMV may vary from the

percentages stated above. We have calculated a company-specific duty

assessment rate based on the ratio of the total amount of antidumping

duties calculated for the examined sales made during the POR to the

total value of subject merchandise entered during the POR. The rate

will be assessed uniformly on all entries of that particular company

made during the POR. The Department will issue appraisement

instructions directly to the Customs Service.

Furthermore, 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 by section

751(a)(1) of the Act: (1) Because a subsequent administrative review of

Branco Peres has been completed, the cash deposit rate for this company

will continue to be the rate calculated in that administrative review

(see 1995-1996 FCOJ Review); (2) the cash deposit rate for CTM will be

the calculated margin in the final results of this administrative

review, as stated above; (3) 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; (4) if

the exporter is not a firm covered in this review, a prior 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 (5)

for all other producers and/or exporters of this merchandise, the cash

deposit rate will be 1.96 percent, the ``all others'' rate from the

LTFV investigation. These cash deposit requirements, when imposed,

shall remain in effect until publication of the final results of the

next administrative review.

This notice serves as a final reminder to importers of their

responsibility under 19 CFR 353.26 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

[[Page 26147]]

reimbursement of antidumping duties occurred and the subsequent

assessment of double antidumping duties.

This notice also 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 section 353.34(d) 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 administrative review and notice are in accordance with

section 751(a)(1)(B) of the Act (19 U.S.C. 1675(a)(1)) and 19 CFR

353.22.

Dated: May 5, 1998.

Robert S. LaRussa,

Assistant Secretary for Import Administration.

[FR Doc. 98-12446 Filed 5-11-98; 8:45 am]

BILLING CODE 3510-DS-P