E7-17873. Notice of Initiation and Preliminary Results of Antidumping Duty Changed Circumstances Review: Certain Orange Juice from Brazil

AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

SUMMARY:

Fischer S/A—Agroindustria (Fischer Agroindustria) has requested a changed circumstances review of the antidumping duty order on certain orange juice from Brazil pursuant to section 751(b)(1) of the Tariff Act of 1930, as amended (the Act) and 19 CFR 351.216(b). The Department of Commerce (the Department) is initiating this changed circumstances review and issuing this notice of preliminary results pursuant to 19 CFR 351.221(c)(3)(ii). We have preliminarily determined that Fischer S.A. Comercio, Industria and Agricultura (Fischer Comercio) is the successor-in-interest to Fischer Agroindustria.

EFFECTIVE DATE:

September 11, 2007.

FOR FURTHER INFORMATION CONTACT:

Elizabeth Eastwood, 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 [phone].

SUPPLEMENTARY INFORMATION:

Background

On March 9, 2006, the Department published in the Federal Register an antidumping duty order on certain orange juice from Brazil.

On May 21, 2007, Fischer Agroindustria requested an expedited changed circumstances review to determine that Fischer Comercio is the successor-in-interest to Fischer Agroindustria and, therefore, that Fischer Comercio is subject to the antidumping duty order on certain orange juice from Brazil.

On May 29, 2007, we requested additional information from Fischer Agroindustria regarding the factors the Department examines when conducting a changed circumstances review. On June 27, 2007, Fischer Agroindustria submitted this requested information, indicating that assets of Fischer Agroindustria were spun off and merged with Fischer Comercio. On August 2, 2007, we requested additional supporting documentation from Fischer Agroindustria to substantiate its assertions that the management, suppliers, and customers of the company had not changed as a result of the merger. On August 9 and 13, 2007, Fischer submitted this requested information. According to Fischer Agroindustria, it is necessary for the Department to determine that Fischer Comercio is the successor-in-interest to Fischer Agroindustria so that Fischer Comercio's entries of subject merchandise continue to receive Fischer Agroindustria's antidumping duty rate from U.S. Customs and Border Protection (CBP).

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 FCOJM; and (2) pasteurized single-strength orange juice which has not been concentrated, referred to as NFC. At the time of the filing of the petition, there was an existing antidumping duty order on 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 (Cargill), Coinbra-Frutesp S.A. (Coinbra-Frutesp), Sucocitrico Cutrale, S.A. (Cutrale), Fischer Agroindustria, and Montecitrus Trading S.A. (Montecitrus).

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[deg] Brix, in a frozen state, packed in retail-sized containers ready for sale to consumers. FCOJR, a finished consumer product, is produced through further 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 this order is dispositive.

Initiation and Preliminary Results

Pursuant to section 751(b)(1) of the Act, the Department will conduct a changed circumstances review upon receipt of information concerning, or a request from an interested party for a review of, an antidumping duty order which shows changed circumstances sufficient to warrant a review of the order. As indicated in the “Background” section, we have received information indicating that assets of Fischer Agroindustria were spun off and merged with Fischer Comercio. This constitutes changed circumstances warranting a review of the order. Therefore, in accordance with section 751(b)(1) of the Act, we are initiating a changed circumstances review based upon the information contained in Fischer Agroindustria's submissions.

Section 351.221(c)(3)(ii) of the Department's regulations permits the Department to combine the notice of initiation of a changed circumstances review and the notice of preliminary results if the Department concludes that expedited action is warranted. In this instance, because we have on the record the information necessary to make a preliminary finding, we find that expedited action is warranted and have combined the notice of initiation and the notice of preliminary results.

In making a 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, e.g., Notice of Final Results of Changed Circumstances Antidumping Duty Administrative Review: Polychloroprene Rubber From Japan, 67 FR 58 (Jan. 2, 2002); Brass Sheet and Strip from Canada: Final Results of Antidumping Duty Administrative Review, 57 FR 20460, 20462 (May 13, 1992). While no single factor or combination of these factors will necessarily provide a dispositive indication of a successor-in-interest relationship, the Department will generally consider the new company to be the successor to the previous company if the new company's resulting operation is not materially dissimilar to that of its predecessor. See, e.g., Fresh and Chilled Atlantic Salmon from Norway; Final Results of Changed Circumstances Antidumping Duty Administrative Review, 64 FR 9979 (Mar. 1, 1999); Industrial Phosphoric Acid from Israel; Final Results of Changed Circumstances Review, 59 FR 6944 (Feb. 14, 1994). Thus, if the evidence demonstrates that, with respect to the production and sale of the subject merchandise, the new company operates as the same business entity as the former company, the Department will accord the new company the same antidumping treatment as its predecessor.

In its May 21, 2007, submission, Fischer Agroindustria states that the operational functions of Fischer Agroindustria were collapsed into Fischer Comercio. According to Fischer Agroindustria's June 27, 2007, submission, the company's management, production facilities and customer/supplier relationships have not changed as a result of the merger. To support its claims, Fischer Agroindustria submitted the following documents: (1) organizational charts from before and after the date of the merger; (2) minutes from the special meeting of shareholders for Fischer Agroindustria held December 31, 2006; (3) minutes from the special meeting of shareholders for Fischer Comercio held December 31, 2006; (4) the “Protocol for Justification of Spin-Off Followed by Merger” (the Protocol); (5) the list of shareholders of Fischer Comercio before and after the merger, as filed with the Register of Commerce in Brazil; (6) approval from the Register of Commerce of the minutes of the December 31, 2006, special meetings of Fischer Agroindustria and Fischer Comercio and of the Protocol; (7) a list of the managers of Fischer Agroindustria before the merger and Fischer Comercio after the merger; (8) a list of the suppliers of Fischer Agroindustria before the merger and Fischer Comercio after the merger; and (9) a list of the customers of Fischer Agroindustria before the merger and Fischer Comercio after the merger.

Based on the information submitted by Fischer Agroindustria, we preliminarily find that Fischer Comercio is the successor-in-interest to Fischer Agroindustria. Based on the evidence reviewed, we find that Fischer Comercio operates as the same business entity as Fischer Agroindustria and that the production facilities, supplier relationships, and customers have not changed as a result of the merger. Further, the companies' senior management is largely the same. Thus, we preliminarily find that Fischer Comercio should receive the same antidumping duty cash-deposit rate (i.e., 12.46 percent) with respect to the subject merchandise as Fischer Agroindustria, its predecessor company.

However, because cash deposits are only estimates of the amount of antidumping duties that will be due, changes in cash deposit rates are not made retroactive. If Fischer Comercio believes that the deposits paid exceed the actual amount of dumping, it is entitled to request an administrative review during the anniversary month of the publication of the order of those entries to determine the proper assessment rate and receive a refund of any excess deposits. See Certain Hot-Rolled Lead and Bismuth Carbon Steel Products From the United Kingdom: Final Results of Changed-Circumstances Antidumping and Countervailing Duty Administrative Reviews, 64 FR 66880 (Nov. 30, 1999). As a result, if these preliminary results are adopted in our final results of this changed circumstances review, we will instruct CBP to suspend shipments of subject merchandise made by Fischer Comercio at Fischer Agroindustria's cash deposit rate (i.e., 12.46 percent).

Public Comment

Any interested party may request a hearing within 30 days of publication of this notice. See 19 CFR 351.310(c). A hearing, if requested, will be held 44 days after the date of publication of this notice, or the first working day thereafter. Interested parties may submit case briefs and/or written comments not later than 30 days after the date of publication of this notice. Rebuttal briefs and rebuttals to written comments, which must be limited to issues raised in such briefs or comments, may be filed not later than 37 days after the date of publication of this notice. Parties who submit arguments are requested to submit with the argument: (1) a statement of the issue; (2) a brief summary of the argument; and (3) a table of authorities.

Consistent with 19 CFR 351.216(e), we will issue the final results of this changed circumstances review no later than 270 days after the date on which this review was initiated, or within 45 days if all parties agree to our preliminary finding. We are issuing and publishing this finding and notice in accordance with sections 751(b)(1) and 777(i)(1) of the Act and 19 CFR 351.216.

Dated: September 5, 2007.

David M. Spooner,

Assistant Secretary for Import Administration.