[Federal Register Volume 63, Number 91 (Tuesday, May 12, 1998)]
[Notices]
[Pages 26145-26147]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-12446]
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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:
------------------------------------------------------------------------
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
