[Federal Register Volume 76, Number 67 (Thursday, April 7, 2011)]
[Notices]
[Pages 19315-19322]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-8324]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-351-840]


Certain Orange Juice From Brazil: Preliminary Results of 
Antidumping Duty Administrative Review and Notice of Intent Not To 
Revoke Antidumping Duty Order in Part

AGENCY: Import Administration, International Trade Administration, 
Department of Commerce.

SUMMARY: In response to a request by the petitioners and two producers/
exporters of the subject merchandise, the Department of Commerce (the 
Department) is conducting an administrative review of the antidumping 
duty order on certain orange juice (OJ) from Brazil with respect to 
four producers/exporters of the subject merchandise to the United 
States. This is the fourth period of review (POR), covering March 1, 
2009, through February 28, 2010.
    We have preliminarily determined that sales to the United States 
have been made below normal value (NV), and, therefore, are subject to 
antidumping duties. If these preliminary results are adopted in the 
final results of this review, we will instruct U.S. Customs and Border 
Protection (CBP) to assess antidumping duties on all appropriate 
entries.

DATES: Effective Date: April 7, 2011.

FOR FURTHER INFORMATION CONTACT: Hector Rodriguez or Blaine Wiltse, 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: (202) 482-
0629 or (202) 482-6345, respectively.

SUPPLEMENTARY INFORMATION: 

Background

    In March 2006, the Department published in the Federal Register an 
antidumping duty order on certain orange juice from Brazil. See 
Antidumping Duty Order: Certain Orange Juice from Brazil, 71 FR 12183 
(Mar. 9, 2006) (OJ Order). Subsequently, on March 1, 2010, the 
Department published in the Federal Register a notice of opportunity to 
request an administrative review of the antidumping duty order of 
certain orange juice from Brazil for the period March 1, 2009, through 
February 28, 2010. See Antidumping or Countervailing Duty Order, 
Finding, or Suspended Investigation; Opportunity to Request 
Administrative Review, 75 FR 9162 (Mar. 1, 2010).
    In accordance with 19 CFR 351.213(b)(2), in March 2010, the 
Department received requests to conduct an administrative review of the 
antidumping duty order on OJ from Brazil from two producers/exporters 
of the subject merchandise, Fischer S.A. Comercio, Industria, and 
Agricultura (Fischer) and Sucocitrico Cutrale, S.A. (Cutrale). In 
Cutrale's request for an administrative review, it also requested 
revocation of the antidumping duty order with respect to its sales of 
subject merchandise, pursuant to 19 CFR 351.222(b).
    In accordance with 19 CFR 351.213(b)(1), also in March 2010, the 
petitioners (Florida Citrus Mutual, A. Duda & Sons, Citrus World Inc., 
and Southern Gardens Citrus Processing Corporation), also requested 
that the Department conduct an administrative review for Cutrale and 
Fischer, as well as for two additional producers/exporters: Montecitrus 
Trading S.A. (Montecitrus) and Coinbra-Frutesp (SA) (Coinbra-Frutesp). 
In April 2010, the Department initiated an administrative review for 
all four companies. See Initiation of Antidumping and Countervailing 
Duty Administrative Reviews and Request for Revocation in Part, 75 FR 
22107 (Apr. 27, 2010). Also in April 2010, we issued questionnaires to 
Coinbra-Frutesp, Cutrale, Fischer, and Montecitrus.
    In May 2010, we received statements from Coinbra-Frutesp and 
Montecitrus that they had no shipments of subject merchandise to the 
United States during the POR.
    From May through July 2010, we received responses to section A of 
the questionnaire (i.e., the section covering general information) from 
Cutrale and Fischer, as well as responses to sections B and C of the 
questionnaire (i.e., the sections covering sales in the home market and 
United States) and section D (i.e., the section covering cost of 
production (COP)/constructed value (CV)).
    From August through November 2010, we issued supplemental sales and 
cost questionnaires to Cutrale and Fischer. We received responses to 
these supplemental questionnaires from September through November 2010.
    On November 16, 2010, the Department extended the deadline for the 
preliminary results of this review until no later than March 31, 2010. 
See Certain Orange Juice from Brazil: Notice of Extension of Time 
Limits for the Preliminary Results of Antidumping Duty Administrative 
Review, 75 FR 69917 (Nov. 16, 2010).
    From December 2010 through March 2011, we issued Cutrale and 
Fischer additional supplemental sales and cost questionnaires. We 
received responses to these supplemental questionnaires from January 
through March 2011.
    Finally, in March 2011, we requested that Cutrale provide 
additional information regarding its indirect selling expenses. Because 
this information was not received in time for use in the preliminary 
results, we expect to consider this information in the final results.

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 frozen concentrated orange juice for manufacture (FCOJM); and (2) 
pasteurized single-strength orange juice which has not been 
concentrated, referred to as not-from-concentrate (NFC). At the time of 
the filing of the petition, there was an existing antidumping duty 
order on frozen concentrated orange juice (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, Coinbra-Frutesp, Cutrale, 
Fischer, and 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

[[Page 19316]]

water, oils and essences to the orange juice concentrate. FCOJR is 
concentrated orange juice, typically at 42 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 the order 
is dispositive.

Determination Not To Revoke Order, in Part

    The Department may revoke, in whole or in part, an antidumping duty 
order upon completion of a review under section 751 of the Tariff Act 
of 1930, as amended (the Act). While Congress has not specified the 
procedures that the Department must follow in revoking an order, the 
Department has developed a procedure for revocation that is described 
in 19 CFR 351.222. This regulation requires, inter alia, that a company 
requesting revocation must submit the following: (1) A certification 
that the company has sold the subject merchandise at not less than NV 
in the current review period and that the company will not sell subject 
merchandise at less than NV in the future; (2) a certification that the 
company sold commercial quantities of the subject merchandise to the 
United States in each of the three years forming the basis of the 
request; and (3) an agreement to immediate reinstatement of the order 
if the Department concludes that the company, subsequent to the 
revocation, sold subject merchandise at less than NV. See 19 CFR 
351.222(e)(1). Upon receipt of such a request, the Department will 
consider: (1) Whether the company in question has sold subject 
merchandise at not less than NV for a period of at least three 
consecutive years; (2) whether the company has agreed in writing to its 
immediate reinstatement in the order, as long as any exporter or 
producer is subject to the order, if the Department concludes that the 
company, subsequent to the revocation, sold the subject merchandise at 
less than NV; and (3) whether the continued application of the 
antidumping duty order is otherwise necessary to offset dumping. See 19 
CFR 351.222(b)(2)(i).
    On March 31, 2010, Cutrale requested revocation of the antidumping 
duty order with respect to its sales of subject merchandise, pursuant 
to 19 CFR 351.222(b). This request was accompanied by certification 
that: (1) Cutrale sold the subject merchandise at not less than NV 
during the current POR and will not sell the merchandise at less than 
NV in the future; and (2) it sold subject merchandise to the United 
States in commercial quantities for a period of at least three 
consecutive years. Cutrale also agreed to immediate reinstatement of 
the antidumping duty order, as long as any exporter or producer is 
subject to the order, if the Department concludes that, subsequent to 
the revocation, it sold the subject merchandise at less than NV.
    In its revocation request, filed in this fourth administrative 
review, Cutrale argued that the Department found dumping margins below 
de minimis levels in the first administrative review. Although Cutrale 
acknowledged that the Department found dumping margins in the second 
administrative review, it argued that the margins were based upon the 
application of zeroing, which the World Trade Organization (WTO) has 
found to be inconsistent with international obligations. Cutrale states 
that there is an ongoing WTO dispute between Brazil and the United 
States regarding zeroing and that it believes that without zeroing it 
will have zero dumping margins for all administrative reviews thus far 
conducted or underway.
    After analyzing Cutrale's request for revocation, we preliminarily 
find that it does not meet all of the criteria under 19 CFR 351.222(b). 
Pursuant to the regulation, upon receipt of a request for revocation, 
the Department will consider: (1) Whether the company in question has 
sold subject merchandise at not less than NV for a period of at least 
three consecutive years; (2) whether the company has agreed in writing 
to its immediate reinstatement in the order, as long as any exporter or 
producer is subject to the order, if the Department concludes that the 
company, subsequent to the revocation, sold the subject merchandise at 
less than NV; and (3) whether the continued application of the 
antidumping duty order is otherwise necessary to offset dumping. See 19 
CFR 351.222(b)(2)(i).
    In this case, our preliminary margin calculation for the fourth 
administrative review shows that Cutrale did not sell the subject 
merchandise at less than NV during the current review period. See 
``Preliminary Results of the Review'' section below. However, in the 
second and third administrative reviews, Cutrale received antidumping 
duty margins above de minimis. See Certain Orange Juice from Brazil: 
Final Results of Antidumping Duty Administrative Review, 74 FR 40167 
(Aug. 11, 2009) (2007-2008 OJ from Brazil); and Certain Orange Juice 
from Brazil: Final Results of Antidumping Duty Administrative Review 
and Notice of Intent Not To Revoke Antidumping Duty Order in Part, 75 
FR 50999 (Aug. 18, 2010) (2008-2009 OJ from Brazil). Accordingly, while 
the Department preliminarily finds that Cutrale did not sell the 
subject merchandise at less than NV in this segment of the proceeding, 
we have found that Cutrale sold the subject merchandise at less than NV 
in the two most recently-completed administrative reviews (i.e., the 
second and third administrative reviews).
    Cutrale's speculation as to what antidumping margins might have 
been calculated in prior reviews had the Department used a different 
methodology does not provide a basis for revocation. The principles of 
administrative finality apply to these completed reviews. Cutrale did 
not successfully challenge the final results of the second 
administrative review in court and, thus, they are final and 
conclusive. Although Cutrale has challenged the final results of the 
third administrative review before the Court of International Trade, 
unless or until there is a final and conclusive court decision 
invalidating these results, by statute, these results are presumed to 
be correct. See Shandong Huarong Gen. Group Corp. v. United States, 122 
F.Supp. 2d 143, 148 (CIT 2000) (``By statute, Commerce's administrative 
review determinations are presumed to be correct and the burden of 
proving otherwise rests exclusively upon the party challenging such 
decision.'') (citing 28 U.S.C. 2639a(1)). Because the results of the 
administrative reviews are presumed to be correct for a court action 
appealing them, they must also be presumed to be correct in the context 
of a revocation request. Cutrale's filing of an appeal of the final 
results of the third administrative review to a court does not render 
the final results incorrect or unlawful.
    With respect to Cutrale's argument that Brazil has challenged 
zeroing before the WTO, we acknowledge that there is an ongoing WTO 
dispute between Brazil and the United States regarding zeroing. 
However, this dispute is yet to be resolved by the WTO, including any 
potential appeals. More importantly, WTO reports do not provide an 
independent basis for altering the Department's methodology, except to 
the extent that they are implemented pursuant to a specified statutory 
scheme. See Corus Staal BV v.

[[Page 19317]]

Department of Commerce, 395 F.3d 1343, 1347, 1349 (Fed. Cir. 2005), 
cert denied, 126 S. Ct. 1023, 163 L. Ed. 2d 853 (January 9, 2006). 
There have been no WTO reports implemented in any fashion that would 
necessitate any change in the Department's methodology in this 
administrative review or prior administrative reviews of this 
antidumping duty order.
    Therefore, we preliminarily determine that Cutrale does not qualify 
for revocation of the order on OJ pursuant to 19 CFR 351.222(b)(2), and 
thus, that the order with respect to such merchandise should not be 
revoked.

Preliminary Determination of No Shipments

    As noted in the ``Background'' section above, Coinbra-Frutesp and 
Montecitrus indicated that they had no shipments of subject merchandise 
to the United States during the POR. The Department subsequently 
confirmed with CBP the no-shipment claim made by these two companies. 
Because the evidence on the record indicates that these companies did 
not export subject merchandise to the United States during the POR, we 
preliminarily determine that neither Coinbra-Frutesp nor Montecitrus 
had any reviewable transactions during the POR.
    Since the implementation of the 1997 regulations, our practice 
concerning no-shipment respondents has been to rescind the 
administrative review if the respondent certifies that it had no 
shipments and we have confirmed through our examination of CBP data 
that there were no shipments of subject merchandise during the POR. See 
Antidumping Duties; Countervailing Duties, 62 FR 27296, 27393 (May 19, 
1997). As a result, in such circumstances, we normally instruct CBP to 
liquidate any entries from the no-shipment company at the deposit rate 
in effect on the date of entry.
    In our May 6, 2003, ``automatic assessment'' clarification, we 
explained that, where respondents in an administrative review 
demonstrate that they had no knowledge of sales through resellers to 
the United States, we would instruct CBP to liquidate such entries at 
the all-others rate applicable to the proceeding. See Antidumping and 
Countervailing Duty Proceedings: Assessment of Antidumping Duties, 68 
FR 23954 (May 6, 2003) (Assessment Policy Notice).
    Because ``as entered'' liquidation instructions do not alleviate 
the concerns which the May 2003 clarification was intended to address, 
we find it appropriate in this case to instruct CBP to liquidate any 
existing entries of merchandise produced by Coinbra-Frutesp or 
Montecitrus, and exported by other parties, at the all-others rate. 
See, e.g., Magnesium Metal From the Russian Federation: Preliminary 
Results of Antidumping Duty Administrative Review, 75 FR 26922 (May 13, 
2010), unchanged in Magnesium Metal From the Russian Federation: Final 
Results of Antidumping Duty Administrative Review, 75 FR 56989 (Sept. 
17, 2010). In addition, the Department finds that it is more consistent 
with the May 2003 clarification not to rescind the review in part in 
these circumstances but, rather, to complete the review with respect to 
Coinbra-Frutesp and Montecitrus and issue appropriate instructions to 
CBP based on the final results of the review. See the ``Assessment 
Rates'' section of this notice below.

Comparisons to Normal Value

    To determine whether sales of OJ by Cutrale and Fischer to the 
United States were made at less than NV, we compared constructed export 
price (CEP) to the NV, as described in the ``Constructed Export Price'' 
and ``Normal Value'' sections of this notice.
    Pursuant to section 777A(d)(2) of the Act, we compared the CEPs of 
individual U.S. transactions to the weighted-average NV of the foreign 
like product where there were sales made in the ordinary course of 
trade, as discussed in the ``Cost of Production Analysis'' section 
below.

Product Comparisons

    In accordance with section 771(16) of the Act, we considered all 
products produced by Cutrale and Fischer covered by the description in 
the ``Scope of the Order'' section, above, to be foreign like products 
for purposes of determining appropriate product comparisons to U.S. 
sales. Pursuant to 19 CFR 351.414(e)(2), we compared U.S. sales of OJ 
to sales of OJ in the home market within the contemporaneous window 
period, which extends from three months prior to the month of the first 
U.S. sale until two months after the last U.S. sale. Where there were 
no sales of identical merchandise in the home market made in the 
ordinary course of trade to compare to U.S. sales, we compared U.S. 
sales to sales of the most similar foreign like product made in the 
ordinary course of trade. In making product comparisons, we matched 
foreign like products based on the physical characteristics reported by 
the respondents in the following order of importance: Product type and 
organic designation. Where there were no sales of identical or similar 
merchandise, we made product comparisons using CV, as discussed in the 
``Calculation of Normal Value Based on Constructed Value'' section 
below. See section 773(a)(4) of the Act.

Constructed Export Price

    In accordance with section 772(b) of the Act, we calculated CEP for 
those sales where the merchandise was first sold (or agreed to be sold) 
in the United States before or after the date of importation by or for 
the account of the producer or exporter, or by a seller affiliated with 
the producer or exporter, to a purchaser not affiliated with the 
producer or exporter. In this case, we are treating all of Cutrale's 
and Fischer's U.S. sales as CEP sales because they were made in the 
United States by their U.S. affiliates on behalf of the respondents, 
within the meaning of section 772(b) of the Act.

A. Cutrale

    We based CEP on the packed delivered prices to unaffiliated 
purchasers in the United States. For sales made pursuant to futures 
contracts, we adjusted the reported gross unit price (i.e., the notice 
price) to include gains and losses incurred on the futures contract 
which resulted in the shipment of subject merchandise. Additionally, 
for certain sales made pursuant to futures contracts which were noticed 
prior to the POR, but were shipped and invoiced during the POR, we 
adjusted the reported date of sale for these transactions to base it on 
the invoice date. We also adjusted the reported data to account for the 
difference between the reported and actual brix levels, as indicated on 
the invoice, at which the U.S. product was sold. In a small number of 
instances where the invoice did not reflect the actual brix level, we 
used the reported brix data. Where appropriate, we made adjustments for 
billing adjustments and rebates.
    In addition, we made deductions for movement expenses, in 
accordance with section 772(c)(2)(A) of the Act. These included, where 
appropriate, foreign inland freight; foreign warehousing expenses; 
foreign brokerage and handling expenses; ocean freight; U.S. brokerage 
and handling (offset by customer-specific reimbursements); U.S. customs 
duties, harbor maintenance fees and merchandise processing fees (offset 
by U.S. duty drawback and customs duty reimbursements); U.S. inland 
freight expenses; and U.S. warehousing expenses. We capped 
reimbursements for brokerage and handling expenses by the amount of 
brokerage and handling expenses incurred on the subject

[[Page 19318]]

merchandise, in accordance with our practice. See, e.g, Certain Orange 
Juice from Brazil: Final Results and Partial Rescission of Antidumping 
Duty Administrative Review, 73 FR 46584 (Aug. 11, 2008) (2005-2007 OJ 
from Brazil), and accompanying Issues and Decision Memorandum at 
Comment 7; 2007-2008 OJ from Brazil at Comment 3; and 2008-2009 OJ from 
Brazil at Comment 2. We also capped U.S. customs duty reimbursements, 
as well as U.S. duty drawback, by the amount of U.S. customs duties 
incurred on the subject merchandise, in accordance with our practice. 
Id.
    In accordance with section 772(d)(1) of the Act and 19 CFR 
351.402(b), we deducted those selling expenses associated with economic 
activities occurring in the United States, including direct selling 
expenses (i.e., bank charges, commissions, imputed credit expenses, and 
repacking (offset by pallet and drum revenue)), and indirect selling 
expenses (including inventory carrying costs and other indirect selling 
expenses). We capped U.S. pallet revenue and drum revenue by the amount 
of repacking expenses, in accordance with our practice. Id. In 
addition, we recalculated inventory carrying costs using the 
manufacturing costs reported in Cutrale's most recent cost response, 
adjusted as noted in the ``Calculation of Cost of Production'' section 
of this notice, below.
    Pursuant to section 772(d)(3) of the Act, we further reduced the 
starting price by an amount for profit to arrive at CEP. In accordance 
with section 772(f) of the Act, we calculated the CEP profit rate using 
the expenses incurred by Cutrale and its U.S. affiliate on their sales 
of the subject merchandise in the United States and the profit 
associated with those sales.
    For further discussion of the changes made to Cutrale's reported 
U.S. sales data, see the March 31, 2011, memorandum from Blaine Wiltse, 
Analyst, to the File, entitled ``Calculation Adjustments for 
Sucocitrico Cutrale Ltda. for the Preliminary Results'' (Cutrale Sales 
Calculation Memo).

B. Fischer

    We based CEP on the packed delivered prices to unaffiliated 
purchasers in the United States. In addition, we made deductions for 
movement expenses, in accordance with section 772(c)(2)(A) of the Act; 
these included, where appropriate, foreign inland freight expenses; 
foreign warehousing expenses; foreign brokerage and handling expenses; 
ocean freight expenses; marine insurance expenses; U.S. brokerage and 
handling expenses; U.S. customs duties, harbor maintenance fees and 
merchandise processing fees (offset by U.S. duty drawback); U.S. inland 
freight expenses; and U.S. warehousing expenses. We capped 
reimbursements for U.S. customs duties, as well as U.S. duty drawback, 
by the amount of U.S. customs duties incurred on the subject 
merchandise, in accordance with our practice. See 2005-2007 OJ from 
Brazil at Comment 7; 2007-2008 OJ from Brazil at Comment 3, and 2008-
2009 OJ from Brazil at Comment 2. Further, we determined that the 
international freight expenses provided by Fischer's affiliated freight 
provider were not at arm's length. Therefore, for all sales shipped by 
Fischer's affiliate, we assigned the international freight rate charged 
by Fischer's affiliate to an unaffiliated party to restate them on an 
arm's-length basis. For further discussion, see the March 31, 2011, 
memorandum to the file from Hector Rodriguez, Analyst, entitled 
``Calculations Performed for Fischer S.A. Comercio, Industria, and 
Agricultura for the Preliminary Results in the 2009-2010 Antidumping 
Duty Administrative Review of Certain Orange Juice from Brazil'' 
(Fischer Sales Calculation Memo).
    In accordance with sections 772(d)(1) of the Act and 19 CFR 
351.402(b), we deducted those selling expenses associated with economic 
activities occurring in the United States, including direct selling 
expenses (i.e., additional processing expenses, imputed credit 
expenses, and repacking), and indirect selling expenses (including 
inventory carrying costs, and other indirect selling expenses). In 
addition, we recalculated inventory carrying costs using the 
manufacturing costs reported in Fischer's most recent cost response, 
adjusted as noted in the ``Calculation of Cost of Production'' section 
of this notice, below.
    Pursuant to section 772(d)(3) of the Act, we further reduced the 
starting price by an amount for profit to arrive at CEP. In accordance 
with section 772(f) of the Act, we calculated the CEP profit rate using 
the expenses incurred by Fischer and its U.S. affiliate on their sales 
of the subject merchandise in the United States and the profit 
associated with those sales.

Normal Value

A. Home Market Viability and Selection of Comparison Markets

    In order to determine whether there was a sufficient volume of 
sales in the home market to serve as a viable basis for calculating NV, 
we compared the volume of home market sales of the foreign like product 
to the volume of U.S. sales of the subject merchandise, in accordance 
with section 773(a)(1)(C) of the Act.
    We determined that the aggregate volume of home market sales of the 
foreign like product for each respondent was sufficient to permit a 
proper comparison with its U.S. sales of the subject merchandise.

B. Level of Trade

    Section 773(a)(1)(B)(i) of the Act states that, to the extent 
practicable, the Department will calculate NV based on sales at the 
same level of trade (LOT) as the export price (EP) or CEP. Sales are 
made at different LOTs if they are made at different marketing stages 
(or their equivalent). See 19 CFR 351.412(c)(2). Substantial 
differences in selling activities are a necessary, but not sufficient, 
condition for determining that there is a difference in the stages of 
marketing. Id. See also Notice of Final Determination of Sales at Less 
Than Fair Value: Certain Cut-to-Length Carbon Steel Plate From South 
Africa, 62 FR 61731, 61732 (Nov. 19, 1997) (Plate from South Africa). 
In order to determine whether the comparison market sales were at 
different stages in the marketing process than the U.S. sales, we 
reviewed the distribution system in each market (i.e., the chain of 
distribution), including selling functions, class of customer (customer 
category), and the level of selling expenses for each type of sale.
    Pursuant to section 773(a)(1)(B)(i) of the Act, in identifying LOTs 
for EP and comparison market sales (i.e., NV based on either home 
market or third country prices),\1\ we consider the starting prices 
before any adjustments. For CEP sales, we consider only the selling 
activities reflected in the price after the deduction of expenses and 
profit under section 772(d) of the Act. See Micron Technology, Inc. v. 
United States, 243 F.3d 1301, 1314 (Fed. Cir. 2001).
---------------------------------------------------------------------------

    \1\ Where NV is based on CV, we determine the NV LOT based on 
the LOT of the sales from which we derive selling, general and 
administrative (SG&A) expenses, and profit for CV, where possible.
---------------------------------------------------------------------------

    When the Department is unable to match U.S. sales of the foreign 
like product in the comparison market at the same LOT as the EP or CEP, 
the Department may compare the U.S. sale to sales at a different LOT in 
the comparison market. In comparing EP or CEP sales at a different LOT 
in the comparison market, where available data make it practicable, we 
make an

[[Page 19319]]

LOT adjustment under section 773(a)(7)(A) of the Act. Finally, for CEP 
sales only, if the NV LOT is at a more advanced stage of distribution 
than the CEP LOT and there is no basis for determining whether the 
difference in LOTs between NV and CEP affects price comparability 
(i.e., no LOT adjustment was practicable), the Department shall grant a 
CEP offset, as provided in section 773(a)(7)(B) of the Act. See Plate 
from South Africa, 62 FR at 61732-33.
    In this administrative review, we obtained information from each 
respondent regarding the marketing stages involved in making the 
reported home market and U.S. sales, including a description of the 
selling activities performed by each respondent for each channel of 
distribution. Company-specific LOT findings are summarized below.
1. Cutrale
    Cutrale reported that it made CEP sales through one channel of 
distribution in the United States (i.e., sales via an affiliated 
reseller) and thus the selling activities it performed did not vary by 
the type of customer. We examined the selling activities performed for 
this channel and found that Cutrale performed the following selling 
functions: order input/processing, freight and delivery, packing, 
maintaining inventory at the port of exportation, and quality testing.
    Selling activities can be generally grouped into four selling 
function categories for analysis: (1) Sales and marketing; (2) freight 
and delivery; (3) inventory maintenance and warehousing; and (4) 
warranty and technical support. See 2008-2009 OJ from Brazil at Comment 
7 and Certain Frozen Warmwater Shrimp From India: Preliminary Results 
and Preliminary Partial Rescission of Antidumping Duty Administrative 
Review, 74 FR 9991, 9996 (Mar. 9, 2009), unchanged in Certain Frozen 
Warmwater Shrimp from India: Final Results and Partial Rescission of 
Antidumping Duty Administrative Review, 74 FR 33409 (July 13, 2009). 
Based on these selling function categories, we find that Cutrale 
performed sales and marketing, freight and delivery services, and 
inventory maintenance and warehousing for U.S. sales. Because all sales 
in the United States are made through a single distribution channel, we 
preliminarily determine that there is one LOT in the U.S. market.
    With respect to the home market, Cutrale reported that it made 
sales through one channel of distribution (i.e., direct sales to soft 
drink manufacturers). We examined the selling activities performed for 
home market sales and found that Cutrale performed the following 
selling functions: order input/processing, advertising via sponsorship 
of a soccer team, freight and delivery, packing, and inventory 
maintenance at the factory. In addition to these functions, Cutrale 
also claimed that it offered quality guarantees, engineering services, 
and after-sales services to home market customers. With respect to 
engineering services and after-sales services, we disagree that the 
record supports Cutrale's claims. Rather, the record shows that Cutrale 
provided no such services other than holding a single meeting with one 
customer in which certain topics were discussed. Because the specifics 
of this meeting are business proprietary in nature, they cannot be 
disclosed here. For further discussion, see the Cutrale Sales 
Calculation Memo. Accordingly, based on the four selling function 
categories listed above, we find that Cutrale performed sales and 
marketing, freight and delivery, inventory maintenance and warehousing, 
and warranty and technical support for home market sales. Because all 
home market sales are made through a single distribution channel, we 
preliminarily determine that there is one LOT in the home market for 
Cutrale.
    Finally, we compared the CEP LOT to the home market LOT and found 
that the selling functions performed for U.S. and home market customers 
do not differ significantly. Specifically, we found that the 
differences were limited to the following activities: (1) Cutrale 
performed limited advertising in the home market (i.e., the sponsorship 
of a local soccer team in Brazil); (2) Cutrale entered orders into the 
company's computer system for home market sales based on orders placed 
by customers, while it generated sales documents for sales to its U.S. 
affiliate based on a general shipping schedule; (3) Cutrale provided 
post-sale services consisting of a single meeting with one customer; 
and (4) Cutrale provided additional quality testing in the home market 
which was limited to a small number of basic screenings for each batch 
of orange juice produced.
    According to 19 CFR 351.412(c)(2), the Department will determine 
that sales are made at different levels of trade if they are made at 
different marketing stages (or their equivalent). Substantial 
differences in selling activities are a necessary, but not sufficient, 
condition for determining that there is a difference in the stage of 
marketing. Therefore, because we determine that substantial differences 
in Cutrale's selling activities do not exist across markets, we 
determine that sales to the U.S. and home markets during the POR were 
made at the same LOT. As a result, neither a LOT adjustment nor a CEP 
offset is warranted for Cutrale. This determination is consistent with 
findings in previous reviews.\2\ See, e.g., 2005-2007 OJ from Brazil at 
Comment 5; 2007-2008 OJ from Brazil at Comment 2; and 2008-2009 OJ from 
Brazil at Comment 7.
---------------------------------------------------------------------------

    \2\ This finding is also consistent with Cutrale's statement 
that there were no significant differences between the sales 
activities that it performed during the current POR and those which 
it performed in both markets during the previous segment of the 
proceeding. See Cutrale's supplemental section A response, submitted 
on September 8, 2010, at page 3.
---------------------------------------------------------------------------

2. Fischer
    Fischer reported that it made CEP sales through one channel of 
distribution in the United States (i.e., sales via an affiliated 
reseller) and, thus, the selling activities it performed did not vary 
by the type of customer. We examined the selling activities performed 
for this channel and found that Fischer performed the following selling 
functions: customer contact and price negotiation; order processing; 
arranging for freight and the provision of customs clearance/brokerage 
services; and inventory maintenance. Selling activities can be 
generally grouped into four selling function categories for analysis: 
(1) Sales and marketing; (2) freight and delivery; (3) inventory 
maintenance and warehousing; and (4) warranty and technical support. 
Accordingly, based on these selling function categories, we find that 
Fischer performed sales and marketing, freight and delivery services, 
and inventory maintenance and warehousing for U.S. sales. Because all 
sales in the United States are made through a single distribution 
channel, we preliminarily determine that there is one LOT in the U.S. 
market.
    With respect to the home market, Fischer reported that it made 
sales through one channel of distribution and that the selling 
activities it performed did not vary by the type of customer. We 
examined the selling activities performed for home market sales, and 
found that Fischer performed the following selling functions: customer 
contact and price negotiation; order processing; arranging for freight; 
cold storage and inventory maintenance; sales and marketing support; 
and technical assistance. Accordingly, based on the selling function 
categories listed above, we find that Fischer performed sales and 
marketing, freight and delivery services, inventory maintenance and 
warehousing, and

[[Page 19320]]

warranty and technical support for home market sales. Because all home 
market sales are made through a single distribution channel, we 
preliminarily determine that there is one LOT in the home market for 
Fischer.
    Finally, we compared the CEP LOT to the home market LOT and found 
that the selling functions performed for U.S. and home market customers 
do not differ significantly. Therefore, we determine that sales to the 
U.S. and home markets during the POR were made at the same LOT, and as 
a result, neither a LOT adjustment nor a CEP offset is warranted for 
Fischer.

C. Affiliated-Party Transactions and Arm's-Length Test

    During the POR, Cutrale made sales in the home market to an 
affiliated party, as defined in section 771(33) of the Act. 
Consequently, we tested these sales to ensure that they were made at 
arm's-length prices, in accordance with 19 CFR 351.403(c). To test 
whether the sales to the affiliate were made at arm's-length prices, we 
compared the unit prices of sales to the affiliated and unaffiliated 
customers net of all movement charges, direct selling expenses, and 
packing expenses. Pursuant to 19 CFR 351.403(c) and in accordance with 
the Department's practice, where the price to that affiliated party 
was, on average, within a range of 98 to 102 percent of the price of 
the same or comparable merchandise sold to the unaffiliated parties at 
the same LOT, we determined that the sales made to the affiliated party 
were at arm's-length. See Antidumping Proceedings: Affiliated Party 
Sales in the Ordinary Course of Trade, 67 FR 69186 (Nov. 15, 2002) 
(establishing that the overall ratio calculated for an affiliate must 
be between 98 and 102 percent in order for sales to be considered in 
the ordinary course of trade and used in the NV calculation). Sales to 
affiliated customers in the home market that were not made at arm's-
length prices were excluded from our analysis because we considered 
these sales to be outside the ordinary course of trade. See section 
771(15) of the Act and 19 CFR 351.102(b).

D. Cost of Production Analysis

    We found that both Cutrale and Fischer made sales below the COP in 
the 2007-2008 administrative review, the most recently completed 
segment of this proceeding as of the date of initiation of this review, 
and such sales were disregarded. See 2007-2008 OJ from Brazil, 74 FR at 
40167. Thus, in accordance with section 773(b)(2)(A)(ii) of the Act, 
there are reasonable grounds to believe or suspect that Cutrale and 
Fischer made home market sales at prices below the cost of producing 
the merchandise in the current POR.
1. Calculation of Cost of Production
    In accordance with section 773(b)(3) of the Act, we calculated the 
respondents' COPs based on the sum of their costs of materials and 
conversion for the foreign like product, plus amounts for general and 
administrative (G&A) expenses and interest expenses (see ``Test of 
Comparison Market Sales Prices'' section, below, for treatment of home 
market selling expenses).
    The Department relied on the COP data submitted by each respondent 
in its most recently submitted cost database for the COP calculation, 
except in the following instances:
a. Cutrale
    i. We used Cutrale's home market actual brix level data to adjust 
Cutrale's home market costs to ensure that these are stated on a 
pounds-solid basis using actual brix. For further discussion of this 
adjustment, see the Cutrale Sales Calculation Memo.
    ii. We adjusted Cutrale's financial expense ratio by limiting the 
interest income offset to income earned on short-term investments of 
its working capital. For further discussion of this adjustment, see the 
March 31, 2011, Memorandum from Gary Urso, Accountant, to Neal M. 
Halper, Director Office of Accounting, entitled ``Cost of Production 
and Constructed Value Calculation Adjustments for the Preliminary 
Results--Sucocitrico Cutrale Ltda.''
b. Fischer
    i. We revised Fischer's reported per-unit raw material costs to 
reflect the POR cost of purchases and purchase price adjustments as 
recorded in Fischer's normal books and records.
    ii. We revised Fischer's G&A calculation to include losses on the 
disposition of fixed assets and the eradication of orange trees.
    For further discussion of these adjustments, see the March 31, 
2011, Memorandum from Frederick Mines, Accountant, to Neal M. Halper, 
Director Office of Accounting, entitled ``Cost of Production and 
Constructed Value Calculation Adjustments for the Preliminary Results--
Fischer S.A. Comercio, Industria and Agricultura.''
2. Test of Comparison Market Sales Prices
    On a product-specific basis, we compared the adjusted weighted-
average COP to the home market sales prices of the foreign like 
product, as required under section 773(b) of the Act, in order to 
determine whether the sales prices were below the COP. For purposes of 
this comparison, we used COP exclusive of selling and packing expenses. 
The prices (inclusive of billing adjustments, where appropriate) were 
exclusive of any applicable movement charges, direct and indirect 
selling expenses and packing expenses.
3. Results of the COP Test
    In determining whether to disregard home market sales made at 
prices below the COP, we examined, in accordance with sections 
773(b)(1)(A) and (B) of the Act: (1) Whether, within an extended period 
of time, such sales were made in substantial quantities; and (2) 
whether such sales were made at prices which permitted the recovery of 
all costs within a reasonable period of time in the normal course of 
trade. Where less than 20 percent of the respondent's home market sales 
of a given product are at prices less than the COP, we do not disregard 
any below-cost sales of that product, because we determine that in such 
instances the below-cost sales were not made within an extended period 
of time and in ``substantial quantities.'' Where 20 percent or more of 
a respondent's sales of a given product are at prices less than the 
COP, we disregard the below-cost sales when: (1) They were made within 
an extended period of time in ``substantial quantities,'' in accordance 
with sections 773(b)(2)(B) and (C) of the Act, and 2) based on our 
comparison of prices to the weighted-average COPs for the POR, they 
were at prices which would not permit the recovery of all costs within 
a reasonable period of time, in accordance with section 773(b)(2)(D) of 
the Act.
    We found that, for certain products, more than 20 percent of 
Cutrale's and Fischer's home market sales were at prices less than the 
COP and, in addition, such sales did not provide for the recovery of 
costs within a reasonable period of time. We therefore excluded these 
sales from our analysis. We used the remaining sales as the basis for 
determining NV for Cutrale and Fischer in accordance with section 
773(b)(1) of the Act.

E. Calculation of Normal Value Based on Comparison Market Prices

1. Cutrale
    For Cutrale, we calculated NV based on ex-factory prices to 
unaffiliated customers. We made adjustments, where appropriate, to the 
starting price for billing adjustments, in accordance

[[Page 19321]]

with 19 CFR 351.401(c). We also made adjustments, where appropriate, to 
the starting price for Brazilian taxes, in accordance with section 
773(a)(6)(B)(iii) of the Act.
    In addition we made deductions pursuant to section 773(a)(6)(C) of 
the Act for home market credit expenses (offset by interest revenue). 
We recalculated Cutrale's home market credit expenses to base the 
calculation on the gross unit price net of taxes and billing 
adjustments. Where applicable, in accordance with 19 CFR 351.410(e), we 
offset any commission paid on a U.S. sale by reducing the NV by the 
amount of home market indirect selling expenses and inventory carrying 
costs, up to the amount of the U.S. commission. We capped Cutrale's 
interest revenue by the amount of credit expenses, in accordance with 
our practice. See, e.g., 2005-2007 OJ from Brazil at Comment 7; 2007-
2008 OJ from Brazil at Comment 3, and 2008-2009 OJ from Brazil at 
Comment 2. We recalculated home market inventory carrying costs using 
the manufacturing costs reported in Cutrale's most recent cost 
response, adjusted as noted in the ``Calculation of Cost of 
Production'' section of this notice, above. For further discussion of 
these adjustments, see the Cutrale Sales Calculation Memo.
    We deducted home market packing costs and added U.S. packing costs, 
where appropriate, in accordance with sections 773(a)(6)(A) and (B) of 
the Act.
    Finally, we made adjustments for differences in costs attributable 
to differences in the physical characteristics of the merchandise, in 
accordance with section 773(a)(6)(C)(ii) of the Act and 19 CFR 351.411.
2. Fischer
    We calculated NV based on delivered prices to unaffiliated 
customers. We made adjustments, where appropriate, to the starting 
price for billing adjustments and other discounts in accordance with 19 
CFR 351.401(c). We also made adjustments, where appropriate, to the 
starting price for Brazilian taxes, in accordance with section 
773(a)(6)(B)(iii) of the Act. We made deductions for foreign inland 
freight expenses and inland insurance expenses, in accordance with 
section 773(a)(6)(B)(ii) of the Act.
    In addition, we made deductions pursuant to section 773(a)(6)(C) of 
the Act for home market credit expenses (offset by interest revenue). 
We capped Fischer's interest revenue by the amount of credit expenses, 
in accordance with our practice. See, e.g, 2005-2007 OJ from Brazil at 
Comment 7; 2007-2008 OJ from Brazil at Comment 3, and 2008-2009 OJ from 
Brazil at Comment 2.
    We deducted home market packing costs and added U.S. packing costs, 
in accordance with sections 773(a)(6)(A) and (B) of the Act.
    Finally, we made adjustments for differences in costs attributable 
to differences in the physical characteristics of the merchandise, in 
accordance with section 773(a)(6)(C)(ii) of the Act and 19 CFR 351.411.

F. Calculation of Normal Value Based on Constructed Value

    Section 773(a)(4) of the Act provides that where NV cannot be based 
on comparison market sales, NV may be based on CV. Accordingly, for 
those OJ products for which we could not determine the NV based on 
comparison-market sales, either because there were no useable sales of 
a comparable product or all sales of the comparable products failed the 
COP test, we based NV on CV.
    Section 773(e) of the Act provides that CV shall be based on the 
sum of the cost of materials and fabrication for the imported 
merchandise, plus amounts for SG&A expenses, profit, and U.S. packing 
costs. We calculated the cost of materials and fabrication based on the 
methodology described in the ``Calculation of Cost of Production'' 
section, above. We based SG&A and profit for Fischer on the actual 
amounts incurred and realized by the respondents in connection with the 
production and sale of the foreign like product in the ordinary course 
of trade for consumption in the home market, in accordance with section 
773(e)(2)(A) of the Act.
    For comparisons to CEP, we deducted home market direct selling 
expenses from CV. Id. We also made adjustments, where applicable, for 
home market indirect selling expenses to offset U.S. commissions. See 
19 CFR 351.410(e).

Currency Conversion

    We made currency conversions into U.S. dollars, in accordance with 
section 773A of the Act and 19 CFR 351.415, based on the exchange rates 
in effect on the dates of the U.S. sales as certified by the Federal 
Reserve Bank.

Preliminary Results of the Review

    We preliminarily determine that weighted-average dumping margins 
exist for the respondents for the period March 1, 2009, through 
February 28, 2010, as follows:

------------------------------------------------------------------------
          Manufacturer/exporter                    Percent  margin
------------------------------------------------------------------------
Sucocitrico Cutrale, S.A.................  0.41
                                           (de minimis)
Fischer S.A. Comercio, Industria, and      3.96
 Agricultura.
Coinbra-Frutesp (SA).....................   *
Montecitrus Trading S.A..................   *
------------------------------------------------------------------------
* No shipments or sales subject to this review.

Disclosure and Public Hearing

    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. See 19 CFR 351.224(b). Pursuant to 
19 CFR 351.309, interested parties may submit cases 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 five days after the time limit for filing the case briefs. 
Parties who submit case briefs or rebuttal briefs in this proceeding 
are requested to submit with each argument: (1) A statement of the 
issue; (2) a brief summary of the argument; and (3) a table of 
authorities. See 19 CFR 351.309(c)(2).
    Pursuant to 19 CFR 351.310(c), interested parties who wish to 
request a hearing, or to participate if one is requested, must submit a 
written request to the Assistant Secretary for Import Administration, 
Room 1870, within 30 days of the date of publication of this notice. 
Requests should contain: (1) The party's name, address and telephone 
number; (2) the number of participants; and (3) a list of issues to be 
discussed. Id. Issues raised in the hearing will be limited to those 
raised in the respective case briefs. The Department intends to issue 
the final results of this administrative review, including the results 
of its analysis of the issues raised in any written briefs, not later 
than 120 days after the date of publication of this notice, pursuant to 
section 751(a)(3)(A) of the Act.

Assessment Rates

    Upon completion of the administrative review, the Department shall 
determine, and CBP shall assess, antidumping duties on all appropriate 
entries, in accordance with 19 CFR 351.212. The Department will issue 
appropriate appraisement instructions for the companies subject to this 
review directly to CBP 15 days after the date of publication of the 
final results of this review.
    We will calculate importer-specific ad valorem duty assessment 
rates based on the ratio of the total amount of

[[Page 19322]]

antidumping duties calculated for the examined sales to the total 
entered value of the sales. We will instruct CBP to assess antidumping 
duties on all appropriate entries covered by this review if any 
importer-specific assessment rate calculated in the final results of 
this review is above de minimis. Pursuant to 19 CFR 351.106(c)(2), we 
will instruct CBP to liquidate without regard to antidumping duties any 
entries for which the assessment rate is de minimis. See 19 CFR 
351.106(c)(1). The final results of this review shall be the basis for 
the assessment of antidumping duties on entries of merchandise covered 
by the final results of this review and for future deposits of 
estimated duties, where applicable.
    The Department clarified its ``automatic assessment'' regulation on 
May 6, 2003. See Assessment Policy Notice. This clarification will 
apply to entries of subject merchandise during the POR produced by 
companies included in these final results of review for which the 
reviewed companies did not know that the merchandise they sold to the 
intermediary (e.g., a reseller, trading company, or exporter) was 
destined for the United States. In such instances, we will instruct CBP 
to liquidate unreviewed entries at the all-others rate if there is no 
rate for the intermediary involved in the transaction. See Assessment 
Policy Notice for a full discussion of this clarification.

Cash Deposit Requirements

    The following cash deposit requirements will be effective for all 
shipments of the subject merchandise 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)(2)(C) of the Act: (1) The cash deposit rate for each specific 
company listed above will be that 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(c)(1), in 
which case the cash deposit rate will be zero; (2) for previously 
reviewed or investigated companies not participating in this review, 
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, 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 (4) the cash deposit rate for all other 
manufacturers or exporters of NFC, and for FCOJM produced and/or 
exported by Cargill Citrus Limitada and Coinbra-Frutesp will continue 
to be 16.51 percent, the all-others rate made effective by the LTFV 
investigation. See OJ Order, 71 FR at 12184. These deposit 
requirements, when imposed, shall remain in effect until further 
notice.

Notification to Importers

    This notice also 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 published in accordance 
with sections 751(a)(1) and 777(i)(1) of the Act and 19 CFR 351.221.

    Dated: March 31, 2011.
Ronald K. Lorentzen,
Deputy Assistant Secretary for Import Administration.
[FR Doc. 2011-8324 Filed 4-6-11; 8:45 am]
BILLING CODE 3510-DS-P