[Federal Register Volume 73, Number 198 (Friday, October 10, 2008)]
[Notices]
[Pages 60241-60244]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-24205]


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DEPARTMENT OF COMMERCE

International Trade Administration

(A-351-840)


Certain Orange Juice from Brazil: Preliminary Results of 
Antidumping Duty Changed Circumstances Review and Intent Not to Revoke, 
In Part

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

EFFECTIVE DATE: October 10, 2008.
SUMMARY: On April 29, 2008, the Department of Commerce (the Department) 
published a notice of initiation of a changed circumstances review of 
the antidumping duty order on certain orange juice from Brazil to 
consider partially revoking the order to exclude ultra low pulp orange 
juice (ULPOJ) pursuant to section 751(b)(1) of the Tariff Act of 1930, 
as amended (the Act), and 19 CFR 351.216(b) and 351.222(g)(1)(i). See 
Certain Orange Juice from Brazil: Initiation of Antidumping Duty 
Changed Circumstances Review, 73 FR 23182 (Apr. 29, 2008) (Initiation 
Notice). Upon analyzing the industry support information provided by 
the interested parties participating in this review, we preliminarily 
determine there is not sufficient industry support for the Department 
to partially revoke the order on certain orange juice from Brazil to 
exclude ULPOJ.

FOR FURTHER INFORMATION CONTACT: Elizabeth Eastwood or Henry Almond; 
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) 482-3874 
or (202) 482-0049, respectively.

SUPPLEMENTARY INFORMATION:

Background

    On March 9, 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, 72 FR 12183 
(Mar. 9, 2006).
    On June 14, 2007, Tropicana Products, Inc. (Tropicana) requested 
that the Department initiate a changed circumstances review to consider 
partially revoking the antidumping duty order on certain orange juice 
from Brazil to exclude ULPOJ. According to Tropicana, producers 
accounting for substantially all of the production of the domestic like 
product have no interest in maintaining the order on ULPOJ, and no 
domestic producer is capable of producing ULPOJ.
    On July 24, 2007, we notified Tropicana that its June 14 request 
was insufficient for the Department to initiate a changed circumstances 
review, and we requested documentation from Tropicana regarding its 
industry support assertions and further information regarding the pulp 
content of ULPOJ. On January 31, 2008, Tropicana responded to the 
Department's request for information, providing: 1) letters of support 
from processors either supporting or not opposing Tropicana's request 
to exclude ULPOJ from the order; 2) a calculation of the level of 
industry support; and 3) documentation regarding the pulp content of 
ULPOJ.
    On February 29, 2008, we received comments from Florida Citrus 
Mutual, A. Duda & Sons, Inc. (doing business as Citrus Belle), and 
Citrus World, Inc., all

[[Page 60242]]

members of the domestic industry\1\, regarding Tropicana's request. 
These domestic producers (hereinafter referred to as ``the 
petitioners'') asserted that the Department must consider the position 
of the entire domestic industry (i.e., both processors and growers) 
when determining the level of industry support, as was done for 
purposes of the initiation of this proceeding. According to the 
petitioners, when the growers are considered, there is an insufficient 
level of industry support necessary for the Department to partially 
revoke the order under 19 CFR 351.222(g)(1)(i). In addition, the 
petitioners note that, contrary to Tropicana's assertion, the U.S. 
domestic industry is capable of producing ULPOJ. Therefore, the 
petitioners urged the Department to reject Tropicana's request and not 
initiate this changed circumstances review.
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    \1\ These entities are also petitioners in this proceeding and 
are opposing this changed circumstances review; however, another 
petitioner, Southern Gardens Citrus Processing Corporation, has not 
joined these entities in opposing Tropicana's request.
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    On March 6, 2008, we requested additional information from 
Tropicana regarding an incomplete letter contained in its January 31 
response. On March 10, 2008, Tropicana submitted the requested 
information.
    On April 29, 2008, the Department published a notice of initiation 
of a changed circumstances review of the antidumping duty order on 
certain orange juice from Brazil to consider partially revoking the 
order to exclude ULPOJ. See Initiation Notice, 73 FR 23182.
    On May 6, 2008, we requested additional information from Tropicana 
regarding the industry support for its partial revocation request, 
including the position of growers, as well as the position of domestic 
growers and processors outside of Florida. On May 27, 2008, Tropicana 
responded to this request with a revised calculation of industry 
support, including processors from states other than Florida, and it 
reiterated its position that growers should not be included in the 
Department's industry support calculation and that the domestic 
industry is incapable of producing ULPOJ.
    On June 16, 2008, the petitioners submitted additional comments 
stating their position that growers should be included in the 
Department's industry support calculation and that the domestic 
industry is capable of producing ULPOJ.
    On June 25, 2008, Tropicana submitted further information regarding 
a California orange juice processor's support for Tropicana's request 
for partial revocation, as well as a revised calculation of industry 
support including this processor, and on July 22, 2008, it submitted 
further comments.
    On August 21, 2008, we requested additional information from the 
petitioners regarding their position on the partial revocation request 
and an industry support calculation reflecting their position. On 
September 4, 2008, the petitioners provided this information, stating 
their opposition to the partial revocation request along with an 
industry support calculation showing that the petitioners' opposition 
accounts for well over 15 percent of the domestic industry. On 
September 12, 2008, Tropicana submitted comments responding to this 
submission. On September 19, 2008, the petitioners submitted further 
comments.

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 S.A.; 
Sucocitrico Cutrale, S.A.; Fischer S.A. Comercio, Industria and 
Agricutura; and Montecitrus Trading S.A.
    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 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.

Scope of Changed Circumstances Review

    The product subject to this changed circumstances review is ULPOJ, 
which is concentrated orange juice with a pulp content of two percent 
or less by weight/volume on an 11.8 degree brix equivalent base. This 
product is a form of FCOJM and is commonly used in the manufacture of 
soft drink concentrates.

Preliminary Results of Changed Circumstances Review

    Pursuant to section 751(d) of the Act, the Department may revoke an 
antidumping duty order based on a review under section 751(b) of the 
Act. The Department's regulations at section 351.222(g)(1)(i) provide 
that the Department may revoke an order, in whole or in part, based on 
changed circumstances if ``{p{time} roducers accounting for 
substantially all of the production of the domestic like product to 
which the order (or part of the order to be revoked) pertains have 
expressed a lack of interest in the order, in whole or in part.'' In 
this context, the Department has interpreted ``substantially all'' 
production normally to mean at least 85 percent of domestic production 
of the like product. See e.g., Certain Corrosion-Resistant Carbon Steel 
Flat Products From Japan: Preliminary Results of Antidumping Duty 
Changed Circumstances Review and Intent Not to Revoke, In Part, 70 FR 
35618, 35624 (June 21, 2005), unchanged in Certain Corrosion-Resistant 
Carbon Steel Flat Products From Japan: Final Results of Antidumping 
Duty Changed Circumstances Review and Determination Not to Revoke, In 
Part, 70 FR 47787 (Aug. 15, 2005).
    In determining whether to initiate the less-than-fair-value (LTFV) 
investigation, the Department relied on section 771(4)(E) (i.e., the 
``agricultural provision'') of the Act to include growers of oranges as 
part of the relevant industry for purposes of evaluating industry 
support for the petition. See Notice of Initiation of Antidumping 
Investigation: Certain Orange Juice From Brazil, 70 FR 7233,

[[Page 60243]]

7234 (Feb. 11, 2005). Tropicana argues that, although growers were 
permissibly included in the calculation of industry support in the LTFV 
investigation under the agricultural provision, that provision does not 
apply to changed circumstances reviews. Thus, Tropicana argues that 
only orange juice processors should be included in the Department's 
calculations when determining whether ``producers'' making this request 
account for substantially all of the production of the domestic like 
product under 19 CFR 351.222(g)(1)(i). Moreover, Tropicana argues that 
to deny a revocation request, the Department normally requires 
producers accounting for at least 15 percent of domestic production to 
affirmatively demonstrate their opposition to revocation. See, e.g., 
Stainless Steel Sheet and Strip in Coils from Italy: Preliminary 
Results of Countervailing Duty Changed Circumstances Review and Intent 
to Revoke Order, 71 FR 7737, 7739 (Feb. 14, 2006); and Certain 
Corrosion-Resistant Carbon Steel Flat Products and Cut-to-Length Carbon 
Steel Plate Products From Germany: Preliminary Results of 
Countervailing Duty Changed Circumstances Reviews, 69 FR 4114, 4116 
(Jan. 28, 2004).
    We disagree with Tropicana that growers of oranges for processing 
into juice should be excluded from the Department's industry support 
calculation in this changed circumstances review. Under section 
732(b)(1) of the Act, the Department must determine whether the 
petition is filed on behalf of the domestic industry at the time that 
it initiates an investigation. In order to determine whether the 
petition has been filed on behalf of the domestic industry, section 
732(c)(4)(A) of the Act requires the Department to determine the 
proportion of the industry, in terms of production of the domestic like 
product, supporting the petition. Section 771(4)(A) of the Act defines 
the term ``industry'' as ``the producers as a whole of a domestic like 
product, or those producers whose collective output of a domestic like 
product constitutes a major proportion of the total domestic production 
of the product.'' Moreover, section 771(4)(E)(i) of the Act states ``in 
an investigation involving a processed agricultural product produced 
from any raw agricultural product, the producers or growers of the raw 
agricultural product may be considered part of the industry producing 
the processed product.''
    We find that the definition of the domestic industry from the LTFV 
investigation applies in subsequent segments of the proceeding.\2\ In 
the LTFV investigation, the Department ``included growers of round 
oranges for processing as part of the industry producing the processed 
agricultural product.'' See the October 6, 2008, memorandum to the file 
from Henry Almond, analyst, entitled, ``Placing Information Regarding 
the LTFV Industry Support Calculation on the Record of the ULPOJ 
Changed Circumstances Review,'' at page 10 (emphasis added) (LTFV 
Industry Support Memo). Similar to the determination required by 
section 732(c)(4)(A) of the Act, the Department's regulations require 
the Department to determine what proportion of the ``production of the 
domestic like product'' those producers expressing a lack of interest 
in the order, in whole or in part, represent. Thus, because growers of 
the oranges that are ultimately processed into juice are part of the 
industry producing the domestic like product, we find that they are 
``producers'' for purposes of 19 CFR 351.222(g)(1)(i) and must be 
included in the Department's industry support calculation. Moreover, 
including these companies for industry support purposes when 
determining whether to initiate the LTFV investigation, but excluding 
them for purposes of a partial revocation, would create two mutually 
inconsistent definitions of the industry producing the domestic like 
product and would deny those petitioners the ability to maintain the 
order, in whole or in part. Although Tropicana has attempted to provide 
statutory support for its argument that the relevant industry for 
purposes of this changed circumstances review should not include the 
growers, these arguments are unpersuasive and do not justify creating 
two inconsistent definitions of the domestic industry.
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    \2\ We note that pursuant to section 732(c)(4)(E) of the Act, 
``{a{time} fter the administering authority makes a determination 
with respect to initiating an investigation, the determination 
regarding industry support shall not be reconsidered.''
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    Regarding Tropicana's claim that the domestic industry is incapable 
of producing ULPOJ and the petitioners' counterclaim that it can, we 
note that neither party has based any argument on this fact, nor 
explained why this is relevant to the Department's changed 
circumstances review. Moreover, the fact that the domestic industry 
does not produce a specific type or class of product covered under the 
scope of an antidumping duty order has no bearing on the scope of the 
order and is not grounds for partial revocation under 19 CFR 351.222. 
See, e.g., Notice of Final Determination of Sales at Less Than Fair 
Value: Certain Cold-Rolled Carbon Steel Flat Products From Argentina, 
58 FR 37062 (July 9, 1993) (where the Department stated that ``there is 
no requirement that interested parties manufacture every product within 
the like product designation, only that they are producers of a like 
product''). Accordingly, the Department finds that the domestic 
industry's ability to produce ULPOJ is not germane to these preliminary 
results.
    In the LTFV investigation, the Department calculated industry 
support by giving equal weight to the juice output of the processors 
and the orange fruit input of the growers. See LTFV Industry Support 
Memo at 18-20. Under this methodology, well over 15 percent of the 
domestic industry has expressed an interest in maintaining the order on 
ULPOJ. See the petitioners' September 4, 2008, submission at Exhibit 1. 
Thus, Tropicana has not shown that producers accounting for 
substantially all of the production of the domestic like product have 
expressed a lack of interest in the order with respect to ULPOJ, as 
required by 19 CFR 351.222(g)(1)(i), and therefore, we preliminarily 
determine that there is insufficient evidence to warrant the revocation 
of ULPOJ from the scope of the order.

Notice of Intent Not To Revoke the Antidumping Duty Order, In Part

    Under the definition of ``substantially all,'' as discussed above, 
over 15 percent of the domestic industry has expressed opposition to 
excluding ULPOJ from the antidumping duty order on certain orange juice 
from Brazil. As a result, we preliminarily determine that changed 
circumstances sufficient to warrant revocation in part of the 
antidumping duty order on certain orange juice from Brazil do not 
exist. The current requirements for the cash deposit of estimated 
antidumping duties on the subject merchandise will remain in effect 
until further notice.
    Parties wishing to comment on these results must submit briefs to 
the Department within 30 days after the publication of this notice in 
the Federal Register. Parties will have five days subsequent to this 
due date to submit rebuttal briefs. Parties who submit comments or 
rebuttal briefs in this proceeding are requested to submit with the 
argument: (1) a statement of the issue, and (2) a brief summary of the 
argument (no longer than five pages, including footnotes). Any requests 
for hearing must be filed within 30 days of the publication of this 
notice in the Federal Register. In accordance with 19 CFR 351.216(e), 
the Department will

[[Page 60244]]

issue its final results of review within 270 days after the date on 
which the changed circumstances review was initiated (i.e., no later 
than January 19, 2009).
    We are issuing and publishing this notice in accordance with 
sections 751(b)(1) and 777(i)(1) of the Act and 19 CFR 351.216.

    Dated: October 6, 2008.
David M. Spooner,
Assistant Secretary for Import Administration.
[FR Doc. E8-24205 Filed 10-9-08; 8:45 am]
BILLING CODE 3510-DS-S