UNITED STATES – ANTI-DUMPING ADMINISTRATIVE REVIEWS AND OTHER MEASURES RELATED TO IMPORTS OF CERTAIN ORANGE JUICE FROM BRAZIL
Document: Request for the Establishment of a Panel by Brazil
Date: 21 August 2009
Document codes: WT/DS382/4
Complainant: Brazil
Respondent: U.S.
Third parties: Argentina, EU, Japan, South Korea, Mexico, Taiwan, Thailand
Dispute stage: Mutually Agreed Solution
Agreements cited: Art. 2.1, 2.4.2, 2.4, 2  Anti-dumpingArt. VI:1, VI:2, II:1  GATT 1994Art. XVI:4  Agreement Establishing the World Trade OrganizationArt. 9.3  Anti-dumping

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.

 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 procedures, 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

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.

 (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 continues in the most recent administrative review, identified
under item (c) above, by which duties are 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.