Certain Orange Juice from Brazil: Preliminary Results of Antidumping Duty Changed Circumstances Review and Intent Not to Revoke, In Part, 60241-60244 [E8-24205]
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Federal Register / Vol. 73, No. 198 / Friday, October 10, 2008 / Notices
systems, and other related uses.
Standard pipe may also be used for light
load–bearing and mechanical
applications, such as for fence tubing,
and for protection of electrical wiring,
such as conduit shells.
The scope is not limited to standard
pipe and fence tubing, or those types of
mechanical and structural pipe that are
used in standard pipe applications. All
carbon steel pipes and tubes within the
physical description outlined above are
included in the scope of this order,
except for line pipe, oil country tubular
goods, boiler tubing, cold–drawn or
cold–rolled mechanical tubing, pipe and
tube hollows for redraws, finished
scaffolding, and finished rigid conduit.
Imports of these products are
currently classifiable under the
following Harmonized Tariff Schedule
of the United States (‘‘HTSUS’’)
subheadings: 7306.30.10.00,
7306.30.50.25, 7306.30.50.32,
7306.30.50.40, 7306.30.50.55,
7306.30.50.85, and 7306.30.50.90.
Although the HTSUS subheadings are
provided for convenience and customs
purposes, our written description of the
scope of this proceeding is dispositive.
mstockstill on PROD1PC66 with NOTICES
Intent to Rescind the 2007–2008
Administrative Review, in Part
Toscelik submitted a letter on July 8,
2008, certifying that it did not, directly
or indirectly, export or sell for
consumption in the United States any
subject merchandise during the POR.
The petitioner did not comment on
Toscelik’s no–shipment claim.
We conducted an internal customs
data query on July 23, 2008. See
September 29, 2005, Memorandum to
The File through James Terpstra,
Program Manager, entitled ‘‘Internal
Customs Data Query.’’ The data query
indicated Toscelik had no entries,
exports, or sales to the United States of
subject merchandise during the POR.
Based on our analysis of the shipment
data, Toscelik is a non–shipper for this
review. Therefore, in accordance with
19 CFR 351.213(d)(3), and consistent
with our practice, we preliminarily
determine to rescind this review. See
e.g., Stainless Steel Bar from India;
Preliminary Results of Antidumping
Duty Administrative Review and New
Shipper Review, and Partial Rescission
of Administrative Review, 65 FR 12209
(March 8, 2000); Persulfates From the
People’s Republic of China; Preliminary
Results of Antidumping Duty
Administrative Review and Partial
Rescission of Administrative Review, 65
FR 18963 (April 10, 2000).
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Public Comment
An interested party may request a
hearing within 30 days of publication of
this preliminary notice. See 19 CFR
351.310(c). Any hearing, if requested,
will be held 44 days after the date of
publication of this preliminary notice,
or the first working day thereafter.
Interested parties may submit case briefs
no later than 30 days after the date of
publication of this preliminary notice.
See 19 CFR 351.309(c)(ii). Rebuttal
briefs, limited to issues raised in such
briefs, may be filed no later than five
days after the time limit for filing the
case brief 19 CFR 351.309(d). Parties
who submit arguments are requested to
submit with the argument (1) a
statement of the issue, (2) a brief
summary of the argument, and (3) a
table of authorities. Further, parties
submitting written comments should
provide the Department with an
additional copy of the public version of
any such comments on diskette. The
Department will issue the final notice,
which will include the results of its
analysis of issues raised in any such
comments, or at a hearing, if requested,
within 120 days of publication of this
preliminary notice.
This notice is issued and published in
accordance with sections 751(a)(1) and
777(i)(1) of the Act and 19 CFR
351.213(d).
Dated: October 01, 1008.
Stephen J. Claeys,
Deputy Assistant Secretary for Import
Administration.
[FR Doc. E8–24204 Filed 10–9–08; 8:45 am]
BILLING CODE 3510–DS–S
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
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
AGENCY:
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60241
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
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60242
Federal Register / Vol. 73, No. 198 / Friday, October 10, 2008 / Notices
members of the domestic industry1,
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.
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
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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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
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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}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,
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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
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20:11 Oct 09, 2008
Jkt 217001
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.
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
2 We note that pursuant to section 732(c)(4)(E) of
the Act, ‘‘{a}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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60243
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
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60244
Federal Register / Vol. 73, No. 198 / Friday, October 10, 2008 / Notices
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
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
Proposed Information Collection;
Comment Request; Coastal Zone
Management Program Administration
National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Notice.
AGENCY:
The Department of
Commerce, as part of its continuing
effort to reduce paperwork and
respondent burden, invites the general
public and other Federal agencies to
take this opportunity to comment on
proposed and/or continuing information
collections, as required by the
Paperwork Reduction Act of 1995,
Public Law 104–13 (44 U.S.C.
3506(c)(2)(A)).
DATES: Written comments must be
submitted on or before December 9,
2008.
ADDRESSES: Direct all written comments
to Diana Hynek, Departmental
Paperwork Clearance Officer,
Department of Commerce, Room 6625,
14th and Constitution Avenue, NW.,
Washington, DC 20230 (or via the
Internet at dHynek@doc.gov).
FOR FURTHER INFORMATION CONTACT:
Requests for additional information or
copies of the information collection
instrument and instructions should be
directed to Diana Olinger, 301–563–
1149 or e-mail at
diana.olinger@noaa.gov.
SUPPLEMENTARY INFORMATION:
mstockstill on PROD1PC66 with NOTICES
SUMMARY:
I. Abstract
In 1972, in response to intense
pressure on coastal resources, and
because of the importance of coastal
areas of the United States, the Congress
passed the Coastal Zone Management
Act of 1972 (CZMA). The CZMA
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20:11 Oct 09, 2008
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authorized a federal program to
encourage coastal states and territories
to develop comprehensive coastal
management programs.
The CZMA has been reauthorized on
several occasions, most recently with
the enactment of the Coastal Zone
Protection Act of 1996. The program is
administered by the Secretary of
Commerce, who in turn has delegated
this responsibility to the National
Oceanic and Atmospheric
Administration’s (NOAA) National
Ocean Services (NOS).
The coastal zone management grants
provide funds to states and territories to
implement federally-approved coastal
management plans; complete
information for the Coastal Zone
Management Program (CZMP)
Performance Management System,
revise assessment document and multiyear strategy; submit documentation as
described in the CZMA Section 306A on
the approved coastal zone management
plans; submit requests to approve
amendments or program changes; and
report on the states’ coastal nonpoint
(not from a specific location) source
pollution programs (CNSPP).
II. Method of Collection
Information may be submitted by mail
or by e-mail.
III. Data
OMB Control Number: 0648–0119.
Form Number: None.
Type of Review: Regular submission.
Affected Public: State, Local and
Tribal Government.
Estimated Number of Respondents:
34.
Estimated Time per Response:
Performance reports, 27 hours;
assessment and strategy, 240 hours;
Section 306A documentation, 5 hours;
amendments and routine program
changes, 8 hours; CNSPP
documentation, 4 hours, and CZMA
Performance Management System
information, 27 hours.
Estimated Total Annual Burden
Hours: 8,261.
Estimated Total Annual Cost to
Public: $680.
IV. Request for Comments
Comments are invited on: (a) Whether
the proposed collection of information
is necessary for the proper performance
of the functions of the agency, including
whether the information shall have
practical utility; (b) the accuracy of the
agency’s estimate of the burden
(including hours and cost) of the
proposed collection of information; (c)
ways to enhance the quality, utility, and
clarify of the information to be
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collected; and (d) ways to minimize the
burden of the collection of information
on respondents, including through the
use of automated collection techniques
or other forms of information
technology.
Comments submitted in response to
this notice will be summarized and/or
included in the request for OMB
approval of this information collection;
they also will become a matter of public
record.
Dated: October 6, 2008.
Gwellnar Banks,
Management Analyst, Office of the Chief
Information Officer.
[FR Doc. E8–24018 Filed 10–9–08; 8:45 am]
BILLING CODE 3510–08–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
Proposed Information Collection;
Comment Request; Pacific Islands
Region Coral Reef Ecosystems Permit
Form
National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Notice.
AGENCY:
SUMMARY: The Department of
Commerce, as part of its continuing
effort to reduce paperwork and
respondent burden, invites the general
public and other Federal agencies to
take this opportunity to comment on
proposed and/or continuing information
collections, as required by the
Paperwork Reduction Act of 1995.
DATES: Written comments must be
submitted on or before December 9,
2008.
Direct all written comments
to Diana Hynek, Departmental
Paperwork Clearance Officer,
Department of Commerce, Room 6625,
14th and Constitution Avenue, NW.,
Washington, DC 20230 (or via the
Internet at dHynek@doc.gov).
FOR FURTHER INFORMATION CONTACT:
Requests for additional information or
copies of the information collection
instrument and instructions should be
directed to Walter Ikehara, (808) 944–
2275 or Walter.Ikehara@noaa.gov.
SUPPLEMENTARY INFORMATION:
ADDRESSES:
I. Abstract
As described in 50 CFR Part 665,
Subpart G, National Marine Fisheries
Service (NMFS) requires any person: (1)
Fishing for, taking, retaining, or using a
vessel to fish for Western Pacific coral
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Agencies
[Federal Register Volume 73, Number 198 (Friday, October 10, 2008)]
[Notices]
[Pages 60241-60244]
From the Federal Register Online via the Government Printing 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