Certain Orange Juice From Brazil: Preliminary Results of Antidumping Duty Administrative Review, 15438-15444 [E9-7691]

Agencies

• DEPARTMENT OF COMMERCE
• International Trade Administration

[Federal Register Volume 74, Number 64 (Monday, April 6, 2009)]
[Notices]
[Pages 15438-15444]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-7691]


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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

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 two 
producers/exporters of the subject merchandise to the United States. 
This is the second period of review (POR), covering March 1, 2007, 
through February 29, 2008.
    We have preliminarily determined that sales to the United States 
have not been made below normal value (NV). 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 6, 2009.

FOR FURTHER INFORMATION CONTACT: Elizabeth Eastwood or Miriam Eqab, 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) 482-3693, 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 3, 2008, 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, 2007, through 
February 29, 2008. See Antidumping or Countervailing Duty Order, 
Finding, or Suspended Investigation; Opportunity to Request 
Administrative Review, 73 FR 11389 (Mar. 3, 2008).
    In accordance with 19 CFR 351.213(b)(2), in March 2008, 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 
accordance with 19 CFR 351.213(b)(1), also in March 2008, the 
petitioners (Florida Citrus Mutual, A. Duda & Sons, Citrus World Inc., 
and Southern Gardens Citrus Processing Corporation), requested that the

[[Page 15439]]

Department conduct an administrative review for Cutrale and Fischer.
    In April 2008, the Department initiated an administrative review 
for each of these companies. See Initiation of Antidumping and 
Countervailing Duty Administrative Reviews and Request for Revocation 
in Part, 73 FR 22337 (Apr. 25, 2008). Also in April 2008, we issued 
questionnaires to them.
    In June 2008, 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)).
    In July and September 2008, we issued two supplemental sales 
questionnaires and one cost questionnaire to Cutrale. We received 
responses to these supplemental questionnaires in July and October 
2008.
    On October 9, 2008, the Department extended the deadline for the 
preliminary results in this review until no later than March 31, 2009. 
See Certain Orange Juice from Brazil: Notice of Extension of Time 
Limits for the Preliminary Results of Antidumping Duty Administrative 
Review, 73 FR 59603 (Oct. 9, 2008).
    In November 2008, we issued a supplemental cost questionnaire to 
Fischer. We received a response to this questionnaire in December 2008.
    In December and January 2008, we issued a third supplemental sales 
questionnaire to Cutrale, a second supplemental cost questionnaire to 
Cutrale, and a supplemental sales questionnaire to Fischer. We received 
responses to these supplemental questionnaires in January and February 
2009.
    In February 2009, we issued an additional supplemental cost 
questionnaire to Fischer. In March 2009, we issued an additional 
supplemental sales questionnaire to each respondent. Responses to these 
questionnaires, as well as to the additional cost questionnaire for 
Fischer, were received in the same month.

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 (Cargill), Coinbra-Frutesp, 
Cutrale, Fischer, 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.

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 Tariff Act of 1930, as 
amended (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 Curtrale 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 
orange juice to sales of orange juice 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 the 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.

Constructed Export Price

    For all U.S. sales made by Cutrale and Fischer, we used the CEP 
methodology specified in section 772(b) of the Act because the subject 
merchandise was sold for the account of these respondents by their U.S. 
subsidiaries in the United States to unaffiliated purchasers.

A. Cutrale

    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 
U.S. sales as CEP sales because they were made in the United States by 
Cutrale's U.S. affiliates on behalf of Cutrale, within the meaning of 
section 772(b) of the Act.
    Cutrale reported in its U.S. sales listing certain futures contract 
sales made during the most recently completed review period. Although 
Cutrale should have reported these transactions during that review 
period, it did not. In this instance, we have included in our analysis 
those pre-POR CEP sales with entry dates during the POR because the 
number of these sales was significant. In future segments of the 
proceeding, we will require Cutrale to report all sales made during the 
review period under consideration.
    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

[[Page 15440]]

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. 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 reimbursements from the customer), 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 (i.e., freight from port to warehouse), and U.S. 
warehousing expenses. We capped reimbursements for brokerage and 
handling expenses and U.S. customs duties, as well as U.S. drawback, by 
the amount of brokerage and handling expenses and U.S. customs duties, 
respectively, incurred on the subject merchandise, in accordance with 
our practice. See Certain Orange Juice from Brazil: Final Results and 
Partial Rescission of Antidumping Duty Administrative Review, 73 FR 
46584 (Aug. 11, 2008), and accompanying Issues and Decision Memorandum 
(2005-2007 OJ from Brazil) at Comment 7.
    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 (as 
recalculated), and repacking (offset by pallet revenue)), and indirect 
selling expenses (including inventory carrying costs and other indirect 
selling expenses). We capped U.S. pallet revenue by the amount of 
repacking expenses. 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. We also recalculated 
indirect selling expenses for Cutrale's U.S. subsidiary Citrus 
Products, Inc. (CPI) to include financing expenses, offset by interest 
income. Because Cutrale did not report financing expenses incurred by 
CPI during the POR as requested in our February 13, 2009, supplemental 
questionnaire, we used the amount reported for the period October 1, 
2006, through December 1, 2007, as facts available, under section 
776(a)(2)(A) of the Act. Finally, we recalculated indirect selling 
expenses for Cutrale's U.S. subsidiary Cutrale Citrus Juices U.S.A., 
Inc. to include certain bonus payments accrued during the POR and 
included in the company's 2007 financial statement, as well as 
financing expenses.
    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. affiliates 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, 2009, memorandum from Miriam Eqab, 
Analyst, to the File, entitled ``Calculation Adjustments for 
Sucocitrico Cutrale Ltda. for the Preliminary Results'' (Cutrale Sales 
Calculation Memo).

B. Fischer

    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 Fischer's 
U.S. sales as CEP sales because they were made in the United States by 
Fischer's U.S. affiliate on behalf of Fischer, within the meaning of 
section 772(b) of the Act.
    We based CEP on the packed delivered prices to unaffiliated 
purchasers in the United States. Where appropriate, we made adjustments 
for billing adjustments and rebates. 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, bunker fuel surcharges, 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 and customs duty reimbursements), U.S. inland freight expenses 
(i.e., freight from port to warehouse or to customer), 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.
    In accordance with sections 772(d)(1) and (2) 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).
    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 both respondents 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

[[Page 15441]]

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).
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    \1\ Where NV is based on CV, we determine the NV LOT based on 
the LOT of the sales from which we derive selling expenses, general 
and administrative (G&A) expenses, and profit for CV, where 
possible.
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    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 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 affiliated 
resellers) 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 Processing; arranging for freight and the provision of 
customs clearance/brokerage services; packing; and maintaining 
inventory at the port of exportation. 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 
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: Sales forecasting, strategic/economic planning, 
engineering services, advertising, packing, inventory maintenance, 
order input/processing, employment of direct sales personnel, technical 
assistance, provision of guarantees, and provision of after-sales 
services. Accordingly, based on the four selling function categories 
listed above, we find that Cutrale performed sales and marketing, 
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. 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 an LOT adjustment nor a CEP offset is warranted for 
Cutrale. We note that, while Cutrale is claiming a CEP offset in this 
proceeding, Cutrale itself admits that there are no significant 
differences between its sales process during the POR of the previous 
administrative review and the current POR, with the exception of an 
increase in advertising expenses in the home market. See Cutrale's July 
17, 2008, section A supplemental response at page 6. Consequently, 
because no compelling evidence exists that Cutrale's sales process 
materially changed during the POR of this administrative review, we 
continue to find that no CEP offset is warranted for Cutrale, as we did 
in the previous administrative review. See Certain Orange Juice from 
Brazil: Final Results and Partial Rescission of Antidumping Duty 
Administrative Review, 73 FR 46584 (Aug. 11, 2008), and accompanying 
Issues and Decision Memorandum at Comment 5.
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 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

[[Page 15442]]

home markets during the POR were made at the same LOT, and as a result, 
neither an LOT adjustment nor a CEP offset is warranted for Fischer.

C. Cost of Production Analysis

    We found that both Cutrale and Fischer had made sales below the COP 
in the less-than-fair-value (LTFV) investigation, the most recently 
completed segment of this proceeding as of the date of initiation of 
this review, and such sales were disregarded. See LTFV Notice of 
Preliminary Determination of Sales at Less Than Fair Value, 
Postponement of Final Determination, and Affirmative Preliminary 
Critical Circumstances Determination: Certain Orange Juice from Brazil, 
70 FR 49557, 49563 (Aug. 24, 2005) (LTFV Preliminary Determination), 
unchanged in Notice of Final Determination of Sales at Less Than Fair 
Value and Affirmative Final Determination of Critical Circumstances: 
Certain Orange Juice from Brazil, 71 FR 2183 (Jan. 13, 2006) (LTFV 
Final Determination). 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 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. In accordance with the transactions disregarded rule, i.e., 
section 773(f)(2) of the Act, we adjusted Cutrale's cost of 
manufacturing to reflect the market value of oranges that were 
purchased from an affiliate.
    ii. We revised the financial expense ratio calculation to reduce 
the denominator by the by-product sales revenue.
    iii. We revised the G&A expense ratio calculation to include 
goodwill expenses in the numerator and to reduce the denominator by the 
by-product sales revenue.

For further discussion of these adjustments, see the Memorandum from 
Gina Lee, Senior Accountant, to Neal M. Halper, Director, Office of 
Accounting, entitled, ``Cost of Production and Constructed Value 
Adjustments for the Preliminary Results--Sucocitrico Cutrale Ltda,'' 
dated March 31, 2009.
    b. Fischer
    i. We revised Fischer's G&A expense rate calculation to include 
amortization of goodwill and a loss provision on fruit contract 
advances.

For further discussion of this adjustment, see the Memorandum from 
Frederick W. 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,'' dated March 31, 2009.
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, rebates, direct and 
indirect selling expenses and packing expenses, revised where 
appropriate, as discussed below under the ``Price-to-Price 
Comparisons'' section.
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) or 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 and used the remaining sales as the basis for determining NV, in 
accordance with section 773(b)(1) of the Act.

D. 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 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 to the starting price 
for foreign warehousing expenses (offset by warehousing revenue) in 
accordance with section 773(a)(6)(B)(ii) of the Act. We capped 
warehousing revenue by the amount of warehousing expenses incurred on 
home market sales, in accordance with our practice. See 2005-2007 OJ 
from Brazil at Comment 7. We also made deductions from the starting 
price for home market credit expenses (offset by interest revenue) 
pursuant to section 773(a)(6)(C) of the Act. We recalculated credit 
expenses using the formula provided in Cutrale's response. 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 calculated 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.
    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. We recalculated packing expenses to state them on a packing-
type basis (e.g., drums in varying sizes). For further

[[Page 15443]]

discussion of these adjustments, see the Cutrale Sales Calculation 
Memo.
    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 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 deducted 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 under section 773(a)(6)(C) of the 
Act for credit expenses (offset by interest revenue). We deducted home 
market 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.

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.
    In its February 2, 2009, submission, Fischer provided exchange rate 
data to show that the U.S. dollar fell against the Brazilian real 
during the POR, and it argued that the Department should account for 
this currency fluctuation in its preliminary results calculations in 
accordance with the policy set forth in Notice: Change in Policy 
Regarding Currency Conversions, 61 FR 9434 (Mar. 8, 1996) (Currency 
Policy Bulletin). The Department considers a ``fluctuation'' to exist 
when the daily exchange rate differs from the benchmark rate by 2.25 
percent or more. The benchmark is defined as the moving average of 
rates for the past 40 business days. When we determine a fluctuation to 
have existed, we generally substitute the benchmark rate for the daily 
rate, in accordance with established practice. (For an explanation of 
this method, see Currency Policy Bulletin.) See also Frozen 
Concentrated Orange Juice from Brazil; Preliminary Results of 
Antidumping Duty Administrative Review, 65 FR 35892 (June 6, 2000), 
unchanged in Frozen Concentrated Orange Juice from Brazil; Final 
Results of Antidumping Duty Administrative Review, 65 FR 60406 (Oct. 
11, 2000). Because we have used the benchmark rates here where 
warranted, in accordance with our normal practice, we find that no 
additional adjustment is necessary.

Preliminary Results of the Review

    We preliminarily determine that weighted-average dumping margins 
exist for the respondents for the period March 1, 2007, through 
February 29, 2008, as follows:

------------------------------------------------------------------------
                                                              Percent
                  Manufacturer/exporter                       margin
------------------------------------------------------------------------
Sucocitrico Cutrale, S.A................................            0.02
Fischer S.A. Comercio, Industria, and Agricultura.                  0.00
------------------------------------------------------------------------

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 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 Antidumping and Countervailing Duty Proceedings: 
Assessment of Antidumping Duties, 68 FR 23954 (May 6, 2003) (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

[[Page 15444]]

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 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 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, 2009.
Ronald K. Lorentzen,
Acting Assistant Secretary for Import Administration.
 [FR Doc. E9-7691 Filed 4-3-09; 8:45 am]
BILLING CODE 3510-DS-P