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Notice

Chlorinated Isocyanurates From Spain: Notice of Final Determination of Sales at Less Than Fair Value

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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.

SUMMARY:

The Department of Commerce (“the Department”) has determined that chlorinated isocyanurates from Spain are being sold, or are likely to be sold, in the United States at less than fair value (“LTFV”), as provided in section 735 of the Tariff Act of 1930, as amended (“the Act”). The estimated margins of sales at LTFV are shown in the “Final Determination of Investigation” section of this notice.

DATES:

Effective Date: May 10, 2005.

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FOR FURTHER INFORMATION CONTACT:

Thomas Martin and Mark Manning, AD/CVD Operations, Office 4, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-3936 or (202) 482-5253, respectively.

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SUPPLEMENTARY INFORMATION:

Case History

On December 20, 2004, the Department published the preliminary determination of sales at LTFV in the antidumping investigation of chlorinated isocyanurates from Spain. See Chlorinated Isocyanurates From Spain: Notice of Preliminary Determination of Sales at Less Than Fair Value and Postponement of Final Determination, 69 FR 75902 (December 20, 2004) (“Preliminary Determination”). Since the Preliminary Determination, the following events have occurred.

On January 12, 2005, the petitioners [1] submitted a request for a public hearing. We conducted verification of the sales and cost questionnaire responses of Aragonesas Delsa S.A. (“Delsa”), the sole respondent in this investigation, from January 31, 2005, through February 11, 2005. On February 17, 2005, Delsa submitted revised sales data resulting Start Printed Page 24507from corrections made at verification. We gave interested parties an opportunity to comment on our Preliminary Determination and our findings at verification. On March 15, 2005, the petitioners and respondent submitted case briefs, and on March 22, 2005, these parties submitted rebuttal briefs. The Department held a public hearing on March 29, 2005.

Period of Investigation

The period of investigation (“POI”) is April 1, 2003, through March 31, 2004. See 19 CFR 351.204(b)(1).

Scope of Investigation

The products covered by this investigation are chlorinated isocyanurates. Chlorinated isocyanurates are derivatives of cyanuric acid, described as chlorinated s-triazine triones. There are three primary chemical compositions of chlorinated isocyanurates: (1) Trichloroisocyanuric acid (Cl3 (NCO)3), (2) sodium dichloroisocyanurate (dihydrate) (NaCl2 (NCO)3 2H2 O), and (3) sodium dichloroisocyanurate (anhydrous) (NaCl2 (NCO)3). Chlorinated isocyanurates are available in powder, granular, and tableted forms. This investigation covers all chlorinated isocyanurates.

Chlorinated isocyanurates are currently classifiable under subheadings 2933.69.6015, 2933.69.6021, and 2933.69.6050 of the Harmonized Tariff Schedule of the United States (“HTSUS”).[2] The tariff classification 2933.69.6015 covers sodium dichloroisocyanurates (anhydrous and dihydrate forms) and trichloroisocyanuric acid. The tariff classifications 2933.69.6021 and 2933.69.6050 represent basket categories that include chlorinated isocyanurates and other compounds including an unfused triazine ring. Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the scope of this investigation is dispositive.

Scope Comments

On July 1, 2004, Arch Chemicals, Inc. (“Arch”), an importer, argued that its patented, formulated, chlorinated isocyanurates tablet is not covered by the scope of this investigation. In the Preliminary Determination, we found that Arch's patented chlorinated isocyanurates tablet is included within the scope of this antidumping duty investigation.

See Preliminary Determination, and Memorandum from Holly A. Kuga, Senior Office Director, to Barbara E. Tillman, Acting Deputy Assistant Secretary for Import Administration, “Scope of the Antidumping Duty Investigations of Chlorinated Isocyanurates from the People's Republic of China and Spain,” dated December 10, 2004. We received no further comments from any interested party regarding our preliminary decision on this issue. Therefore, for this final determination, we find that Arch's patented chlorinated isocyanurates tablet is included within the scope of this antidumping duty investigation.

Analysis of Comments Received

All issues raised in the case and rebuttal briefs by parties to this proceeding and to which we have responded are listed in the Appendix to this notice and addressed in the Memorandum from Barbara E. Tillman, Acting Deputy Assistant Secretary for Import Administration, to Joseph A. Spetrini, Acting Assistant Secretary for Import Administration, “Issues and Decision Memorandum for the Final Determination in the Antidumping Investigation of Chlorinated Isocyanurates from Spain,” (“Issues and Decision Memorandum”) dated concurrently with this notice, which is hereby adopted by this notice. Parties can find a complete discussion of the issues raised in this investigation and the corresponding recommendations in this public memorandum which is on file in the Central Records Unit, room B-099, of the main Department of Commerce building. In addition, a complete version of the Issues and Decision Memorandum can be accessed directly on the Internet at http://ia.ita.doc.gov/​frn/​summary/​list.html. The paper copy and electronic version of the Issues and Decision Memorandum are identical in content.

Partial Adverse Facts Available

A. Use of Facts Available

As further discussed below, pursuant to sections 776(a)(2)(B) and (C), and 776(b) of the Act, the Department determines that the application of partial adverse facts available (“AFA”) is warranted for Delsa's home market (“HM”) inland freight and U.S. market movement expenses. Section 776(a)(2) of the Act, provides that, if an interested party (A) withholds information that has been requested by the Department; (B) fails to provide such information in a timely manner or in the form or manner requested, subject to sections 782(c)(1) and (e) of the Act; (C) significantly impedes a proceeding under the antidumping statute; or (D) provides such information but the information cannot be verified, the Department shall, subject to subsection 782(d) of the Act, use facts otherwise available in reaching the applicable determination. Section 782(d) of the Act provides that the Department must inform the interested party of the nature of any deficiency in its response and, to the extent practicable, allow the interested party to remedy or explain such deficiency. Pursuant to section 782(e) of the Act, the Department shall not decline to consider submitted information if all of the following requirements are met: (1) The information is submitted by the established deadline; (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; and (5) the information can be used without undue difficulties.

We find that pursuant to sections 776(a)(2)(B) and (C) of the Act, we should apply facts available to Delsa's HM inland freight and U.S. market movement expenses (consisting of foreign inland freight, foreign brokerage and handling, international freight, and U.S. brokerage and handling) because (1) Delsa failed to accurately and timely report these expenses; (2) Delsa took action that further impeded the Department's ability to conduct the proceeding; and (3) Delsa provided information that could not be verified.

With respect to HM inland freight, Delsa stated in its initial and first supplemental section B questionnaire responses that it reported its HM inland freight using an allocation methodology. See August 23, 2004, Section B submission at 11 and September 29, 2004, first supplemental Section B submission at 7. In our second Start Printed Page 24508supplemental questionnaire, we instructed Delsa to provide a full explanation of the allocation methodology and explain why it represents a reasonable allocation. Delsa provided a one sentence answer in its second supplemental response: “We have revised our home market sales file with the actual amount of freight for each transaction.” See November 22, 2004, second supplemental Section B submission at 3. (Emphasis added). Furthermore, Delsa reiterated in its third supplemental questionnaire response that it reported actual HM inland freight expenses. See December 2, 2004, third supplemental questionnaire submission at 4. Given that Delsa stated that it reported the actual amount of freight for each transaction, the Department concluded that Delsa no longer used an allocation methodology.

However, at verification, Delsa stated that it had incorrectly reported to the Department that it was submitting actual transaction-specific freight cost data for its HM sales, and instead submitted a worksheet that provided a limited overview of its allocation methodology. At verification, the Department tested the results of this allocation methodology against actual costs in selected sales and found the discrepancies between the actual and allocated freight to be so great as to indicate that the allocation methodology does not result in per-unit expenses that reasonably approximate the actual expenses. At no point in this investigation, prior to verification, did Delsa notify the Department that it had any difficulties complying with the Department's requests for information. Delsa did not seek guidance on the applicable reporting requirements as contemplated by section 782(c)(1) of the Act. Instead, Delsa only reported at the start of verification that it had reported its HM inland freight expenses using an allocation methodology, after reporting in its last two supplemental questionnaire responses that it was providing actual HM inland freight expenses for each sale. Based on the above, we find that Delsa failed to provide accurate and timely information in the form and manner requested by the Department, within the meaning of section 776(a)(2)(B) of the Act.

See Issues and Decision Memorandum at Comment 3.

In addition, Delsa's failure to provide accurate and timely information concerning its HM freight expenses prevented the Department from requesting supplemental information regarding these expenses. Without this information, we were unable to satisfy ourselves that the information reported was complete and accurate. Since the Department does not accept new information at verification, and this allocation methodology was new information, we were precluded from verifying the specifics of how Delsa allocated its freight costs. Delsa thus took specific action to prevent the Department from determining the reliability of central elements of its responses, thereby impeding the proceeding. This action warrants the application of facts available pursuant to section 776(a)(2)(C) of the Act.

In regard to Delsa's U.S. movement expenses, Delsa reported to the Department in its questionnaire responses that it reported the actual costs that it was charged by its freight forwarder. The Department made supplemental requests for information regarding these movement expenses, and Delsa made corrections and provided explanations. See, e.g., September 29, 2004, supplemental section C submission at Exhibits C-7a and C-7b. However, Delsa reported at the beginning of the Department's verification that it made multiple errors affecting three reported movement expenses (foreign inland freight, foreign brokerage and handling, and international freight), with an undetermined, varying impact on each sale. Specifically, the errors were (1) failure to take account of containers that were only partially filled; (2) failure to take account of the decrease in freight charges on larger volume transactions; (3) failure to report the costs from another freight forwarding company that was used during the POI; (4) failure to account for changes that took place in the freight fee schedules; (5) failure to report the correct foreign inland freight for sales that originated from one of its factories; and (6) failure to account for weight differences in allocating costs to containers that held a mix of products that vary by weight. These errors affect a large number of U.S. sales and have an overlapping effect, so that the Department is unable to separately analyze the errors on an individual basis. Moreover, these errors have a large impact on the reported per-unit expenses for each variable. See Issues and Decision Memorandum at Comment 4. Furthermore, Delsa reported its U.S. brokerage and handling expenses for the first time at verification, even though Delsa denied having the ability to report this expense in its initial and first supplemental questionnaire responses. Delsa did not seek guidance concerning this expense on the applicable reporting requirements, as contemplated by section 782(c)(1) of the Act.

Based on the above, for its U.S. movement expenses (consisting of foreign inland freight, foreign brokerage and handling, international freight, and U.S. brokerage and handling), we find that Delsa failed to provide requested information before the established deadlines and in the form and manner requested by the Department, within the meaning of section 776(a)(2)(B) of the Act.

We further find that Delsa has significantly impeded the proceeding by providing changes to all of its U.S. movement expenses at the start of verification that significantly affect a large quantity of U.S. sales and have a large impact on the reported per-unit expenses. Calculation of U.S. movement expenses is necessary to the Department's calculation of net U.S. prices, which is in turn necessary to calculate accurate dumping margins. The information is in the respondent's possession and cannot otherwise be obtained by the Department. Therefore, we find that Delsa has significantly impeded the proceeding within the meaning of section 776(a)(2)(C) of the Act.

Furthermore, with respect to both HM inland freight and U.S. market movement expenses, Delsa has not met the requirements of sections 782(d) and (e) of the Act. Section 782(d) of the Act is not applicable because Delsa did not provide enough information to the Department to indicate that its reporting methodology for these HM and U.S. movement expenses might be deficient until the start of verification. It was not until verification that the Department was aware of the use of an allocation methodology for HM inland freight and the extent of the errors (i.e., in terms of quantity and volume) in Delsa's reported U.S. movement expenses. By this time, it was too late to notify Delsa of any deficiencies, obtain the allocation methodologies and possibly new data, and examine such methodologies and data for deficiencies.

Similarly, section 782(e) of the Act has also not been satisfied because Delsa failed to submit before the deadlines established by the Department reasonably accurate HM inland freight and U.S. movement expenses. In its response to the Department's second supplemental questionnaire, when the Department requested detailed information regarding Delsa's HM inland freight expense and U.S. movement expense reporting methodologies, Delsa reported that it provided actual HM expenses and U.S. market movement expenses based upon its freight schedules. At that time, Delsa did not acknowledge that its HM inland Start Printed Page 24509freight costs were, in fact, reported on an allocated basis. For U.S. movement expenses, Delsa reported significantly inaccurate U.S. movement expenses, due to its failure to go beyond the freight schedules, and take into account divergences from the scheduled fees. These statements by Delsa prevented the Department from asking additional questions about the methodology that Delsa actually did use. Thus, Delsa has failed to satisfy the requirements of subsections (1) and (2) of section 782(e).

B. Adverse Inferences

Once the Department determines that the use of facts available is warranted, the Department must then determine whether an adverse inference is warranted pursuant to section 776(b) of the Act, which permits the Department to apply an adverse inference if it makes the additional finding that an interested party has failed to cooperate by not acting to the best of its ability to comply with the Department's requests for information.

In determining whether a respondent has failed to cooperate to the best of its ability, the Department need not make a determination regarding the willfulness of the respondent's conduct. Nippon Steel Corp. v. United States, 337 F.3d 1373, 1382 (Fed. Cir. 2003). Instead, the courts have made clear that the Department must articulate its reasons for concluding that a party failed to cooperate to the best of its ability, and explain why the missing information is significant to the review. In determining whether a party failed to cooperate to the best of its ability, the Department considers whether a party could comply with the request for information, and whether a party paid sufficient attention to its statutory duties. Pacific Giant, Inc. v. United States, 223 F. Supp. 2d 1336, 1342 (CIT 2002); see also Tung Mung Dev. Co. v. United States, 2001 Ct. Intl. Trade LEXIS 94 at 89 (July 3, 2001). The Department also considers whether there is at issue a “pattern of behavior.” Borden, Inc. v. United States, 22 C.I.T. 1153 (CIT 1998)

As discussed below, we determine that, within the meaning of section 776(b) of the Act, Delsa failed to cooperate by not acting to the best of its ability to comply with the Department's request for information by not providing it with timely and accurate HM inland freight and U.S. movement expenses, and that the application of partial AFA is therefore warranted. On more than one occasion, Delsa failed to provide information when requested to do so by the Department. Specifically, Delsa misrepresented the nature of its HM inland freight data in its last two supplemental questionnaire responses by reporting to the Department that for its HM sales, it reported actual, transaction-specific inland freight costs. This precluded the Department from making supplemental requests for information regarding the allocation methodology that it did use. Delsa's misrepresentation prevented the Department from issuing supplemental questions that might otherwise have resulted in changes to the methodology, to make the methodology reasonable, such that the Department could have accepted it. In its questionnaire responses, Delsa did not provide evidence to support its allocation methodology, as it is required to do pursuant to 19 CFR 351.401(g)(2). Delsa failed to fully demonstrate that it could not provide its HM freight on an actual, transaction-specific basis. Moreover, Delsa failed to demonstrate that its allocation methodology did not yield distortive or inaccurate results. Without accurately reported expenses and costs, the Department is unable to calculate accurate net HM prices, which prevents the Department from calculating accurate dumping margins. We find that Delsa did not act to the best of its ability in reporting HM inland freight expenses, and therefore an adverse inference is warranted. As partial AFA, we are applying the lowest verified inland freight cost to all HM sales made by Delsa during the POI, except for those sales examined at verification and sales of a particular CONNUM for which Delsa provided actual, invoiced freight expenses during verification (and the Department successfully tested for accuracy). A complete explanation of the selection and application of partial AFA can be found in the Issues and Decision Memorandum at Comment 3.

Delsa also failed to accurately report its U.S. movement expenses (consisting of foreign inland freight, foreign brokerage and handling, and international freight), despite having three opportunities to do so in response to the Department's initial and supplemental questionnaires. Delsa reported corrections to multiple errors with respect to these variables at the Department's verification. Since each of these errors affect more than one movement variable, the overall impact of these errors on the reported variables is actually a net change resulting in increases and decreases of Delsa's reported U.S. movement expenses. Because (1) There were six errors affecting three variables, (2) the separate effect of each individual error cannot be determined with information on the record, as Delsa only provided the Department with the net effect of all of the errors, (3) the errors affect a large quantity of U.S. sales, and (4) the impact of these errors on the reported per-unit expense is also large, the corrections for these errors cannot be considered as minor corrections to the U.S. sales database. In addition, U.S. brokerage and handling was an expense that Delsa reported that it did not have until the Department's verification, even though the Department asked supplemental questions on this topic. The Court of International Trade has found that the “respondent bears the burden of creating a complete and adequate record upon which the Department can make its determination.” See NSK Ltd. v. United States, 919 F. Supp. 442, 449 (CIT 1996). See also Tianjin Mach. Imp. & Exp. Corp. v. United States, 353 F. Supp. 2d 1294, 1305 (CIT 2004) (“Although the standard does not demand perfection, it censures inattentiveness and carelessness.”). Therefore, the Department determines that Delsa failed to act to the best of its ability, and thus determines that partial adverse facts is warranted in this case. As partial AFA, we have selected the highest non-aberrational reported freight cost for all four U.S. freight variables. We have applied these per-unit expenses to all U.S. sales made by Delsa during the POI, except for those sales that were examined at verification. A complete explanation of the selection and application of partial AFA can be found in the Issues and Decision Memorandum at Comment 4.

Verification

As provided in section 782(i) of the Act, we verified the information submitted by Delsa 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 the respondent.

Changes Since the Preliminary Determination

Based on our findings at verification, and analysis of comments received, we have made certain adjustments to the margin calculations used in the Preliminary Determination. These adjustments are discussed in detail in the Issues and Decision Memorandum and are listed below:

1. We corrected a clerical error with respect to our recalculation of HM credit expense.

2. We corrected a clerical error regarding the customer code used to allocate certain freight expenses incurred by Delsa for defective Start Printed Page 24510merchandise returned from the United States. In addition, although not a clerical error, we changed the allocation methodology to ensure a more appropriate allocation of these expenses. Lastly, we added U.S. brokerage and handling expenses to this calculation.

3. We applied partial AFA to Delsa's HM inland freight for sales that are not based upon actual, transaction-specific costs, and which have not been specifically verified.

4. We applied partial AFA to Delsa's foreign inland freight, foreign brokerage and handling, and international freight for all U.S. sales that have not been specifically verified.

5. We applied AFA to Delsa's U.S. brokerage and handling expenses that were reported for the first time during verification.

6. We revised the interest rate used in calculating U.S. credit expenses to the correct POI-average Federal Reserve rate.

7. We eliminated the second rebate variable from Delsa's HM price adjustments, pursuant to a minor correction that Delsa submitted at verification.

8. We recalculated Delsa's packaging costs to equal the packaging and packing costs reported for the Preliminary Determination less the packing expenses identified at verification. Accordingly, we revised the reported packing expenses to equal the packing expenses identified at verification. Since Delsa packs its products in an identical manner regardless of the market to which they are sold, we used the same values for packing in the home and U.S. markets.

9. We recalculated the adjustments to certain raw material costs based on the comparison of Delsa's reported transfer prices and market prices obtained at verification.

10. We adjusted the startup period for purposes of determining the amount, if any, of the startup adjustment.

11. We recalculated Delsa's financial expense ratio to include net foreign exchange losses in the numerator.

Final Determination of Investigation

We determine that the following weighted-average dumping margins exist for the period April 1, 2003, through March 31, 2004:

Manufacturer/exporterWeighted-Average Margin (percent)
Aragonesas Delsa S.A24.83
All Others24.83

Continuation of Suspension of Liquidation

Pursuant to section 735(c)(1)(B) of the Act, we will instruct U.S. Customs and Border Protection (“CBP”) to continue to suspend liquidation of all entries of chlorinated isocyanurates from Spain that are entered, or withdrawn from warehouse, for consumption on or after December 20, 2004, the date of publication of the Preliminary Determination in the Federal Register. We will instruct CBP to continue to require a cash deposit or the posting of a bond for each entry equal to the weighted-average dumping margins in the chart above. These instructions suspending liquidation will remain in effect until further notice.

International Trade Commission Notification

In accordance with section 735(d) of the Act, we have notified the International Trade Commission (“ITC”) of our determination. As our final determination is affirmative, the ITC will determine, within 45 days, whether these imports are causing material injury, or threat of material injury, to an industry in the United States. If the ITC determines that material injury or threat of 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 CBP officials to assess antidumping duties on all imports of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the effective date of the suspension of liquidation.

Notification Regarding Administrative Protective Order

This notice serves as the only 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(a)(3). Timely written notification of return/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) of the Act.

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Dated: May 2, 2005.

Joseph A. Spetrini,

Acting Assistant Secretary for Import Administration.

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Appendix—Issues and Decision Memorandum

Part I: Corrections to the Preliminary Calculations:

Comment 1: Corrections to the Preliminary Calculations.

Part II: Home Market (“HM”) Sales Issues:

Comment 2: Whether Delsa's Allocation Methodology for HM Inland Freight Results in Unreliable Allocations.

Comment 3: Whether the Department Should Apply Partial Adverse Facts Available (“AFA”) to Delsa's HM Inland Freight.

Part III: United States Sales Issues:

Comment 4: Whether the Department Should Apply Partial AFA to Delsa's Foreign Inland Freight, Foreign Brokerage and Handling, International Freight Expenses, and U.S. Brokerage and Handling Expenses.

Comment 5: Whether the Department Should Apply the Calculated U.S. Average Short-Term Borrowing Rate to All U.S. Sales.

Part IV: Cost of Production (“COP”) Issues:

Comment 6: Whether the Department Double Counted Delsa's Reported Packaging and Packing Costs in the Preliminary Determination.

Comment 7: Whether the Packaging and Packing Service Provider is an Affiliated Party and, as Such, Whether the Department Should Adjust the Price of the Services Provided by a Affiliated Party.

Comment 8: Whether Certain Raw Material Inputs Should be Adjusted in Accordance with the Department's Major Input Rule.

Comment 9: Whether the Department Should Allow Delsa's Claimed Startup Adjustment.

Comment 10: Whether the Department Should Adjust Delsa's Financial Expense Ratio for Foreign Exchange Gains and Losses.

Comment 11: Whether the Department Should Make Certain Adjustments to Delsa's General and Administrative Expense Ratio.

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Footnotes

1.  The petitioners in this investigation are Clearon Corporation and Occidental Chemical Corporation (collectively, the “petitioners”).

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2.  In the scope section of the Department's initiation and in its Preliminary Determination, chlorinated isocyanurates were classified under subheading 2933.69.6050 of the HTSUS. See Initiation of Antidumping Duty Investigations: Chlorinated Isocyanurates From the People's Republic of China and Spain, 69 FR 32488 (June 10, 2004). Effective January 1, 2005, chlorinated isocyanurates are also currently classifiable under new subheadings 2933.69.6015 and 2933.69.6021 of the HTSUS. The new subheading 2933.69.6015 covers sodium dichloroisocyanurates (anhydrous and dihydrate forms) and trichloroisocyanuric acid, while subheading 2933.69.6021 covers all other chlorinated isocyanurates used as pesticides (bactericides). Subheading 2933.69.6050 covers all other chlorinated isocyanurates not used as pesticides. See Memorandum to James Doyle, Office 9, dated February 16, 2005, from Tom Futtner, Liaison w/Customs, Customs Unit, regarding Request for HTS Number Update(s) to AD/CVD Module Chlorinated Isos (A-570-898) (added to the record of the instant investigation in Memorandum from Thomas Martin to the File, dated April 25, 2005).

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[FR Doc. E5-2236 Filed 5-9-05; 8:45 am]

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