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Notice

Notice of Final Determination of Sales At Less Than Fair Value: Solid Agricultural Grade Ammonium Nitrate From Ukraine

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Information about this document as published in the Federal Register.

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AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

ACTION:

Notice of final determination of sales at less than fair value.

SUMMARY:

The Department of Commerce is conducting an antidumping duty investigation of solid agricultural grade ammonium nitrate from Ukraine. We determine that sales have been made at less than fair value. The dumping margin for J.S.C. “Concern” Stirol is 156.29 percent. The Ukraine-wide rate, which is applicable to all other producers/exporters, including the non-responding company, Open Joint Stock Company “AZOT” Cherkassy, is 156.29 percent.

EFFECTIVE DATE:

July 25, 2001.

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FOR FURTHER INFORMATION CONTACT:

Jarrod Goldfeder, Melani Miller, or Anthony Grasso, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-0189, (202) 482-0116, or (202) 482-3853, respectively.

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SUPPLEMENTARY INFORMATION:

The Applicable Statute and Regulations

Unless otherwise indicated, all citations to the Tariff Act of 1930, as amended (“the Act”), are references to the provisions effective January 1, 1995, the effective date of the amendments made to the Act by the Uruguay Round Agreements Act (“URAA”). In addition, unless otherwise indicated, all citations to the Department of Commerce (“the Department”) regulations are to the regulations at 19 CFR part 351 (April 2000).

Case History

Since the publication of the preliminary determination in this investigation (see Notice of Preliminary Determination of Sales at Less Than Fair Value and Postponement of Final Determination: Solid Agricultural Grade Ammonium Nitrate from Ukraine, 66 FR 13286 (March 5, 2001) (“Preliminary Determination”)), the following events have occurred:

On March 5, 2001, the petitioner in this investigation (the Committee for Fair Ammonium Nitrate Trade) alleged certain errors in the preliminary determination. We responded to this allegation on March 16, 2001. See March 16, 2001 memorandum to Richard W. Moreland, Deputy Assistant Secretary, entitled “Ministerial Error Allegations for Preliminary Determination,” which is on file in the Import Administration's Central Records Unit (“CRU”), Room B-099 of the main Department of Commerce building.

In March 2001, we conducted a verification of the questionnaire responses submitted by J.S.C. Start Printed Page 38633“Concern” Stirol (“Stirol”). We issued the verification report in April 2001.

Also in March 2001, the Government of Ukraine (“GOU”) submitted a draft proposal for an agreement suspending the Department's investigation pursuant to section 734 of the Act. Consultations were held between the Department and the GOU in Washington, DC in June of 2001. No agreement to suspend the investigation was reached.

Supplemental information regarding surrogate values was submitted by Stirol and the petitioner on April 20 and April 23, 2001.

The petitioner and Stirol filed case and rebuttal briefs, respectively, on April 26 and May 1, 2001. The petitioner also submitted a request on May 3, 2001, to strike certain alleged new and untimely information from Stirol's rebuttal brief. The Department did not strike this information because it determined that the information was neither new nor untimely.

No other interested parties to this investigation have submitted any additional information or argument since the Preliminary Determination.

Scope of the Investigation

For purposes of this investigation, the products covered are solid, fertilizer grade ammonium nitrate (“ammonium nitrate” or “subject merchandise”) products, whether prilled, granular or in other solid form, with or without additives or coating, and with a bulk density equal to or greater than 53 pounds per cubic foot. Specifically excluded from this scope is solid ammonium nitrate with a bulk density less than 53 pounds per cubic foot (commonly referred to as industrial or explosive grade ammonium nitrate). The merchandise subject to this investigation is classified in the Harmonized Tariff Schedule of the United States (“HTSUS”) at subheading 3102.30.00.00. Although the HTSUS subheadings are provided for convenience and for purposes of the Customs Service (“Customs”), the written description of the merchandise under investigation is dispositive.

Period of Investigation

The period of investigation (“POI”) for this investigation is April 1, 2000 through September 30, 2000.

Nonmarket Economy Country

The Department has treated Ukraine as a nonmarket economy (“NME”) country in all past antidumping investigations. See, e.g., Notice of Final Determinations of Sales at Less Than Fair Value: Steel Concrete Reinforcing Bars from Indonesia, Poland and Ukraine, 66 FR 18752 (April 11, 2001); Notice of Final Determination of Sales at Less Than Fair Value: Certain Cut-to-Length Carbon Steel Plate from Ukraine, 62 FR 61754 (November 19, 1997). Under section 771(18)(C) of the Act, this NME designation remains in effect until it is revoked by the Department.

No party in this investigation has formally requested a revocation of Ukraine's NME status, and no further information has been provided that would lead to such a revocation. See also “Issues and Decision Memorandum” from Richard W. Moreland, Deputy Assistant Secretary, Import Administration, to Faryar Shirzad, Assistant Secretary for Import Administration, dated July 18, 2001, Comment 11 (“Decision Memorandum”) (which is on file in the Department's CRU). Therefore, we have continued to treat Ukraine as an NME in this investigation.

Separate Rates

Stirol has requested a separate, company-specific antidumping duty rate. (As explained in the Preliminary Determination, although Open Joint Stock Company “AZOT” Cherkassy also submitted information relating to separate rates, that information was incomplete.) In our Preliminary Determination, we preliminarily found that Stirol had met the criteria for the application of separate antidumping duty rates. See 66 FR 13286, 13288-13289. At verification, we found no discrepancies with the separate rates information provided in Stirol's questionnaire responses. We have not received any other information since the Preliminary Determination which would warrant reconsideration of our separate rate determination with respect to Stirol. We, therefore, determine that Stirol should be assigned an individual dumping margin.

Ukraine-Wide Rate

The four companies named in the petition were Stirol, Open Joint Stock Company “AZOT” Cherkassy (“Cherkassy”), J.S. Co. Rivneazot (“Rivneazot”), and Severodonetsk State Manufacturing Enterprise “Azot Association” (“Severodonetsk”). As stated in the Preliminary Determination, information on the record of this investigation indicates that Stirol, the only company that demonstrated its eligibility for a separate rate, did not account for all exports of subject merchandise to the United States from Ukraine during the POI. Therefore, because Ukrainian producers/exporters of ammonium nitrate other than Stirol failed to respond to our questionnaire, we presume that all other NME producers/exporters do not act independently from the government in their export activities and, therefore, are not eligible for separate rates. Accordingly, we are applying a single antidumping deposit rate (“the Ukraine-wide rate”) to all ammonium nitrate exporters in Ukraine except for Stirol.

Use of Facts Available

Stirol

As discussed in the Decision Memo, at Comment 2, and explained below in the Normal Value section, in certain instances we used partial facts available for Stirol in calculating a final determination margin.

Ukraine-Wide Rate

As explained in the Preliminary Determination, the Ukraine-wide antidumping rate is based on adverse facts available, in accordance with section 776 of the Act.

Section 776(a)(2) of the Act provides that “if an interested party or any other person (A) withholds information that has been requested by the (Department) under this title, (B) fails to provide such information by the deadlines for submission of the information or in the form and manner requested, subject to subsections (c)(1) and (e) of section 782, (C) significantly impedes a proceeding under this title, or (D) provides such information but the information cannot be verified as provided in section 782(i), the (Department) shall, subject to section 782(d), use the facts otherwise available in reaching the applicable determination under this title.” Pursuant to section 782(e) of the Act, the Department “shall not decline to consider information that is submitted by an interested party and that is necessary to the determination, even if that information does not meet all the applicable requirements established by the (Department), if—(1) the information is submitted by the deadline established for its submission, (2) the information can be verified, (3) the information is not so incomplete that it cannot serve as a reliable basis for reaching the applicable determination, (4) the interested party has demonstrated that it acted to the best of its ability in providing the information and meeting the requirements established by the Department with respect to the information, and (5) the information can be used without undue difficulties.” Use of facts available is warranted in this case because all producers/exporters other than Stirol have failed to respond or provide a complete response to the Department's questionnaire. Start Printed Page 38634

Section 776(b) of the Act further provides that adverse inferences may be used when an interested party has failed to cooperate by not acting to the best of its ability to comply with a request for information. Certain producers/exporters, other than Stirol, decided not to respond or provide a complete response to the Department's questionnaire. On this basis the Department determined that they failed to cooperate by not acting to the best of their abilities in this investigation. Further, given Ukraine's status as a NME, absent a verifiable response from these firms, we must presume government control of these Ukrainian companies. Thus, the Department has determined that, in selecting from among the facts otherwise available, an adverse inference is warranted and has assigned them a common, Ukraine-wide rate based on adverse inferences.

In accordance with our standard practice, as adverse facts available, we are assigning to the Ukraine-wide entity (i.e., those companies not receiving a separate rate), which did not cooperate in the investigation, the higher of: (1) The highest margin stated in the notice of initiation; or (2) the highest margin calculated for any respondent in this investigation (see, e.g., Notice of Final Determination of Sales at Less Than Fair Value: Stainless Steel Wire Rod from Japan, 63 FR 40434 (July 29, 1998)). As noted in the Preliminary Determination, the rate from the petition, as recalculated by the Department at the time of initiation of this investigation, is 257 percent. See Initiation of Antidumping Duty Investigation: Solid Agricultural Grade Ammonium Nitrate from Ukraine, 65 FR 66966 (November 8, 2000).

Section 776(c) of the Act provides that where the Department selects from among the facts otherwise available and relies on “secondary information,” such as the petition, the Department shall, to the extent practicable, corroborate that information from independent sources reasonably at the Department's disposal. The Statement of Administrative Action accompanying the URAA, H.R. Doc. No. 103-316 (1994) (“SAA”), states that “corroborate” means to determine that the information used has probative value. See SAA at 870.

In order to determine the probative value of the information used to calculate the Ukraine-wide rate for the final determination, as we did for in the Preliminary Determination, we examined evidence supporting the calculations in the petition. The methodology we used to determine the probative value of this information was explained in the Preliminary Determination and in the Department's February 23, 2001, memorandum to the Deputy Assistant Secretary, “Preliminary Determination Adverse Facts Available Rate” (“Corroboration Memo”), which is on file in the Department's CRU. As noted in the Corroboration Memo, we recalculated the petition margin to 67.20 percent.

Using the methodology discussed in the Preliminary Determination and the Corroboration Memo, we found that the margin calculated for Stirol for the final determination, 156.29 percent, continues to be the highest margin on the record of this case. Since this margin is a calculated margin in this investigation, this margin does not represent secondary information, and, thus, does not need to be corroborated. Thus, the Department has determined the Ukraine-wide rate to be 156.29 percent.

Fair Value Comparisons

To determine whether sales of the subject merchandise by Stirol for export to the United States were made at less than fair value, we compared export price (“EP”) to normal value (“NV”). Our calculations followed the methodologies described in the Preliminary Determination, except as noted below and in Stirol's calculation memorandum dated July 18, 2001, which is on file in the Department's CRU.

Export Price and Constructed Export Price

For Stirol's price to the United States, we used EP methodology in accordance with section 772(a) of the Act because the subject merchandise was sold directly to unaffiliated customers in the United States prior to importation, and constructed export price (“CEP”) methodology was not otherwise appropriate. We calculated EP based on the same methodology as in the Preliminary Determination.

Normal Value

1. Surrogate Country

Section 773(c)(4) of the Act requires the Department to value an NME producer's factors of production, to the extent possible, in one or more market economy countries that: (1) Are at a level of economic development comparable to that of the NME, and (2) are significant producers of comparable merchandise. Regarding the first criterion, the Department has determined that Pakistan, Indonesia, Sri Lanka, the Philippines, and Egypt are countries comparable to Ukraine in terms of overall economic development (see memorandum from Jeff May, Director, Office of Policy, to Susan Kuhbach, Office Director, AD/CVD Enforcement, Office 1, dated November 14, 2000, which is on file in the Department's CRU).

We selected Indonesia as our surrogate country for the Preliminary Determination and since that time we have not received any other information which would warrant reconsideration of that selection. Thus, we have continued to rely on Indonesia as our primary surrogate country for the final determination. As we noted in the Preliminary Determination, when Indonesian values were not available or were determined to be aberrational, we used Indian values. No parties commented on the use of the Indian values.

2. Factors of Production and Surrogate Values

In our calculation of NV, we have used the same factors of production and the same surrogate values as in the Preliminary Determination, with the following exceptions:

We revised the calculation of our Energy Prices & Taxes natural gas value. See Decision Memo, at Comment 3. We made adjustments to our calculation of overhead and selling, general, and administrative expenses. See Decision Memo, at Comment 5. We valued water as a direct energy input using surrogate values based on information from the Asian Development Bank. See Decision Memo, at Comment 2. We valued certain catalysts purchased from market-economy suppliers using verified market economy prices; for other catalysts determined not to have been purchased from a market-economy supplier, we used surrogate values. See Decision Memo, at Comment 2.

We also made adjustments to the reported factors of production for one of the catalysts, denatured alcohol, and natural gas energy based on the Department's verification findings. See Decision Memo, at Comments 7, 8, and 10, respectively. Moreover, because we find that the indirect labor factor of production information reported by Stirol is unreliable, as partial facts available, we are using the indirect labor factor reported in the petition. See Decision Memo, at Comment 2.

Finally, we valued electricity using 1999 data for Indonesia. See Decision Memo, at Comment 9. We also corrected our calculation of the electricity factor based on the clerical error allegation made by the petitioner following the Preliminary Determination. See Decision Memo, at Comment 2. (See also Memorandum from Team to Richard W. Start Printed Page 38635Moreland, “Ministerial Error Allegations for Preliminary Determination,” dated March 16, 2001, which is on file in the Department's CRU.)

Critical Circumstances

In the Preliminary Determination, the Department issued its preliminary determination that critical circumstances exist for both Stirol and the Ukraine-wide entity. As discussed in the Preliminary Determination, our decision was based on the analysis of shipment data submitted by Stirol and available import statistics, as well as the history of injurious dumping of ammonium nitrate from Ukraine. The existence of an antidumping duty order in the European Community on ammonium nitrate from Ukraine is sufficient evidence of a history of injurious dumping. Moreover, as discussed in the Preliminary Determination, there is record evidence to support a finding of massive imports over a relatively short period of time. We have not received any other information since the Preliminary Determination which would warrant reconsideration of our critical circumstances determination. Therefore, we continue to find that critical circumstances exist with respect Stirol and the Ukraine-wide entity.

Verification

As provided in section 782(i) of the Act, we verified the information submitted by Stirol for use in our final determination. We used standard verification procedures including examination of relevant accounting and production records, and original source documents provided by respondents.

Analysis of Comments Received

All issues raised in the case and rebuttal briefs by parties to this investigation are addressed in the July 18, 2001, Decision Memorandum which is hereby adopted by this notice. Attached to this notice as an appendix is a list of the issues which parties have raised and to which we have responded in the Decision Memorandum. Parties can find a complete discussion of all issues raised in this investigation and the corresponding recommendations in this public memorandum which is on file in the Department's CRU. In addition, a complete version of the Decision Memorandum can be accessed directly on the Web at http://ia.ita.doc.gov/​frn/​frnhome.htm. The paper copy and electronic version of the Decision Memorandum are identical in content.

Continuation of Suspension of Liquidation

In accordance with section 735(c) of the Act, we are directing Customs to continue to suspend liquidation of all imports of the subject merchandise from Ukraine entered, or withdrawn from warehouse, for consumption on or after March 5, 2001, the date of publication of the Preliminary Determination in the Federal Register. In addition, we are directing Customs to continue to suspend liquidation of any unliquidated entries of subject merchandise entered, or withdrawn from warehouse, for consumption on or after December 5, 2000, the date 90 days prior to the date of publication of the Preliminary Determination in the Federal Register, in accordance with our critical circumstances finding.

Customs shall continue to require a cash deposit or the posting of a bond equal to the weighted-average amount by which the NV exceeds the EP or CEP, as appropriate, as indicated in the chart below. These suspension of liquidation instructions will remain in effect until further notice.

The weighted-average dumping margins are as follows:

Exporter/manufacturerWeighted-average margin percentage
J.S.C. “Concern” Stirol156.29
Ukraine-wide rate156.29

The Ukraine-wide rate applies to all entries of the subject merchandise except for entries from exporters/factories that are identified individually above.

ITC Notification

In accordance with section 735(d) of the Act, we have notified the ITC of our determination. As our final determination is affirmative, the ITC will, within 45 days, determine whether these imports are materially injuring, or threaten material injury to, the U.S. industry. If the ITC determines that material injury, or threat of material injury does not exist, the proceeding will be terminated and all securities posted will be refunded or canceled. If the ITC determines that such injury does exist, the Department will issue an antidumping duty order directing Customs officials to assess antidumping duties on all imports of the subject merchandise entered for consumption on or after the effective date of the suspension of liquidation.

This notice also serves as a reminder to parties subject to administrative protective order (“APO”) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305. Timely notification of return or destruction of APO materials, or conversion to judicial protective order, is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation.

This determination is issued and published in accordance with sections 735(d) and 777 (i)(1) of the Act.

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Dated: July 18, 2001.

Faryar Shirzad,

Assistant Secretary for Import Administration.

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Appendix

List of Comments in the Issues and Decision Memorandum

Comment 1: Application of Adverse Facts Available

Comment 2: Application of Partial Facts Available

Comment 3: Valuation of Natural Gas

Comment 4: Source of Financial Data for Surrogate Financial Ratios

Comment 5: Valuation of Overhead and SG&A

Comment 6: Valuation of Catalysts, Belting, Tosol, and Denatured Alcohol

Comment 7: Revision of Catalyst Usage

Comment 8: Revision of Denatured Alcohol Usage

Comment 9: Electricity Factor

Comment 10: Revision of Natural Gas Consumed as an Energy Input

Comment 11: Separate Rates

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[FR Doc. 01-18566 Filed 7-24-01; 8:45 am]

BILLING CODE 3510-DS-P