WORLD TRADE  
ORGANIZATION  WT/DS382/4 
21 August 2009 
 (09-3998) 
 Original:   English 
  
 
UNITED STATES – ANTI-DUMPING ADMINISTRATIVE REVIEWS AND OTHER 
MEASURES RELATED TO IMPORTS OF CERTAIN ORANGE JUICE 
FROM BRAZIL 
 
Request for the Establishment of a Panel by Brazil
 
 
  The following communication, dated 20 August 2009, from the delegation of Brazil to the Chairman of the Dispute Settlement Body, is circulated pursuant to Article 6.2 of the DSU.  
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  Upon instructions from my authorities, I hereby  request the establishment of a panel pursuant 
to Articles 4.7 and 6 of the Understanding on Ru les and Procedures Governing the Settlement of 
Disputes (the "DSU"), Article XXIII of the Gene ral Agreement on Tariffs and Trade of 1994 (the 
"GATT 1994") and Article 17.4 of the Agreement on Implementation of Article VI of the General 
Agreement on Tariffs and Trade of 1994 (the "Anti-Du mping Agreement"), with regard to the matters 
listed hereunder:  
Consultations 
 
 On 27 November 2008, the Government of Braz il ("Brazil") requested consultations with the 
Government of the United States of America (the  "United States") under Articles 4 of the DSU, 
Article XXII:1 of the GATT 1994 and Articles 17.2 a nd 17.3 of the Anti-Dumping Agreement, with 
regard to the laws, regulations, administrative pr ocedures, practices and methodologies for calculating 
dumping margins in administrative reviews, involving the use of "zeroing", and their application in 
anti-dumping duty administrative reviews regarding im ports of certain orange juice from Brazil (case 
No A-351-840). On 22 May 2009, Brazil requested furt her consultations with the United States with 
regard to the use of "zeroing" in the anti-dumping duty investigation and in the second administrative review related to case No A-351-840 as well as to the continued use of the US "zeroing procedures" in 
successive anti-dumping proceedings regarding imports  of certain orange juice from Brazil.  The 
consultations were held on 16 Ja nuary 2009 and 18 June 2009, respectively.  They allowed a better 
understanding of the parties' positions but failed to resolve the dispute. 
 
Measures and claims 
 
 The measures at issue are the following: 
 
 (a) The anti-dumping duty investigation on certain orange juice from Brazil (the 
"Original Investigation")  
 
 This anti-dumping proceeding concerns th e imposition of anti-dumping duties on certain 
orange juice for transport and/or further manufactur ing produced in two different forms: (1) Frozen 
orange juice in a highly concentrated form, sometime s referred to as frozen concentrated orange juice WT/DS382/4 
Page 2  
 
  for further manufacturing (FCOJM); and (2) pasteurized single-strength orange juice which has not 
been concentrated, referred to as Not-From-C oncentrate (NFC) (case No A-351-840). The final 
results of this Original Investigation were publis hed in 71 Fed. Reg. 2183 on 13 January 2006 and the 
amended final results were published in 71 Fed. Re g. 8841 on 21 February 2006.  The anti-dumping 
duty order was published in 71 Fed. Reg 12183 on 9 Ma rch 2006.  The period of investigation is 1 
October 2003 through 30 September 2004,  and the amended rate of the ad valorem  anti-dumping duty 
was 12.46% for Fischer S.A.Comércio, Indústria, e Agricultura ("Fischer") and 19.19% for Sucocítrico Cutrale S.A. ("Cutrale").    In this Original Investigation, the United States Department of Commerce (the "USDOC") 
employed a methodology whereby it aggregated inte rmediate comparison results between weighted 
average normal value and weighted average expor t price for sub-groups of products within the 
product under investigation ("averaging groups"), treating as zero negative intermediate comparison 
results (i.e., situations in which the weighted av erage export price was greater than the weighted 
average normal value of an "averaging group").  Brazil refers to such methodology as "model 
zeroing" and/or US "zeroing procedures".  
 
 (b) The 2005-2007 anti-dumping duty administrative review on certain orange juice 
from Brazil (the "First Administrative Review")   
 
 This anti-dumping proceeding concerns the administrative review of anti-dumping duties on 
certain orange juice from Brazil (case No A- 351-840) for the period of 24 August 2005 through 
28 February 2007.  The final results of this First Administrative Review were published in 
73 Fed. Reg. 46584 on 11 August 2008.  The rate of the ad valorem  anti-dumping duty was 4.81% for 
Fischer and 0.45% for Cutrale.   
 In this First Administrative Review, in order to assess the importers' final liability for 
payment of anti-dumping duties and the going-forward cash deposit rates, the USDOC employed a methodology whereby it aggregated intermediate  comparison results between weighted average 
normal value for each "averaging group" with the transaction price of individual export transactions, treating as zero negative intermediate comparison r esults (i.e., situations in which the individual 
export price was greater than the weighted averag e normal value of an "averaging group"). Brazil 
refers to such methodology as "simple zeroing" and/or U.S. "zeroing procedures".  
 
 (c) The 2007-2008 anti-dumping duty administrative review on certain orange juice 
from Brazil (the "Second Administrative Review")  
  This anti-dumping proceeding concerns the administrative review of anti-dumping duties on 
certain orange juice from Brazil (case No A- 351-840) for the period of 1 March 2007 through 
29 February 2008.  The final results of this Second Administrative Review were published in 
74 Fed. Reg. 40167 on 11 August 2009.  The rate of the ad valorem  anti-dumping duty was 0% for 
Fischer and 2.17% for Cutrale.  
 In this Second Administrative Review, the USDOC applied again "simple zeroing" and/or US 
"zeroing procedures".    The measures at issue also include any asse ssment instructions issued by the USDOC and 
cash deposit requirements imposed pursuant to the measu res listed in items (a), (b) and (c) above, as 
well as any measures taken by the United States Customs and Border Protection (USCBP) to collect 
definitive anti-dumping duties at the duty assessment rates established in those measures, including 
through the issuance of USCBP liquidations instructions and notices.   WT/DS382/4 
 Page 3 
 
 
   (d) The continued use of the U.S. "zeroin g procedures" in successive anti-dumping 
proceedings, in relation to the anti-dumping duty order issued in respect of imports of certain orange juice from Brazil  
 
 This measure concerns the continued use by the United States of "zeroing procedures" in 
successive anti-dumping proceedings, in relation to the anti-dumping duty order issued in respect of 
imports of certain orange juice from Brazil (case No A-351-840), including the original investigation 
and any subsequent administrative reviews, by whic h duties are applied and maintained over a period 
of time.  In particular, the use of zeroing continu es in the most recent administrative review, identified 
under item (c) above, by which duties ar e currently applied and maintained. 
 
Claims 
 
 Brazil considers that the measures described above are inconsistent with the following 
provisions: 
 
• Article 2.1 of the Anti-Dumping Agreement and Articles VI:1 and VI:2 of the GATT 
1994 because the United States did not determine a margin of dumping for the product as a whole; 
 
• Article 2.4.2 of the Anti-Dumping Agreement because the United States' use of 
"zeroing procedures" precluded a determin ation for the product as a whole in the 
Original Investigation;  
 
• Article 2.4 of the Anti-Dumping Agreement because the comparison of normal value 
and export price using "zeroing procedures" is unfair; 
 
• Article VI:2 of the GATT 1994 and Artic le 9.3 of the Anti-Dumping Agreement 
insofar as the imposition and collection of anti-dumping duties is made in excess of the margin of dumping properly determined pursuant to Article 2 of the Anti-
Dumping Agreement; 
 
• Article II:1(a) and II:1(b) of the GATT 1994 insofar as the United States subjects the 
importation of certain orange juice to duties in excess of the duties permitted by the United States' Schedule of Concessions; and 
 
• Article XVI:4 of the Marrakesh Ag reement establishing the World Trade 
Organization and Article 18.4 of the Anti- Dumping Agreement insofar as the United 
States has not taken all necessary steps, of a general or particular character, to ensure the conformity of its laws, regulations  and administrative procedures with the 
provisions of GATT 1994 and the Anti-Dumping Agreement. 
 Request 
 
 Brazil hereby respectfully requests that a panel be established pursuant to Article XXIII of the 
GATT 1994, Articles 4.7 and 6 of the DSU and Article 17.4 of the Anti-Dumping Agreement, with standard terms of reference. Brazil asks that this request be placed on the agenda of the next meeting 
of the WTO Dispute Settlement Body that will take place on 31 August 2009. 
 
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