[Federal Register Volume 60, Number 83 (Monday, May 1, 1995)]
[Notices]
[Pages 21067-21068]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-10638]



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DEPARTMENT OF COMMERCE
[A-429-601]


Solid Urea From the German Democratic Republic; Preliminary 
Results of Changed Circumstances Review and Initiation of Changed 
Circumstances Antidumping Duty Administrative Review

AGENCY: Import Administration, International Trade Administration, 
Department of Commerce.

ACTION: Notice of preliminary results of changed circumstances review 
and initiation of changed circumstances antidumping duty administrative 
review.

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SUMMARY: On February 12, 1992, the Department of Commerce (the 
Department) published in the Federal Register (57 FR 5130) a notice of 
initiation of a changed circumstances review to examine the effect, if 
any, that the reunification of Germany (by combination of the former 
German Democratic Republic (GDR) and the Federal Republic of Germany 
(FRG)) had on the antidumping duty order covering solid urea from the 
former GDR (53 FR 2636). Specifically, we reviewed the order's 
applicability to post-unification shipments of the subject merchandise 
from producers located in the pre-unification territory of the FRG. The 
Department preliminarily determines to maintain the order on solid urea 
from the five German states (Brandenburg, Mecklenburg-Vorpommern, 
Saxony, Saxony-Anhalt, and Thuringia (plus any other territory included 
in the former GDR)) that formerly constituted the GDR (hereinafter 
``the Five States'') and to allow entry of shipments from the pre-
unification territory of the FRG (the remaining German states) without 
regard to antidumping duties. We have also determined that there is 
good cause for conducting a second changed circumstances review to 
calculate a new cash deposit rate using a market economy analysis for 
any shipments of solid urea from the Five States occurring after 
October 2, 1990 and before the effective date of this notice.

EFFECTIVE DATE: May 1, 1995.

FOR FURTHER INFORMATION CONTACT:
Wendy Frankel, Office of Antidumping Compliance, Import Administration, 
International Trade Administration, U.S. Department of Commerce, 14th 
and Constitution Avenue NW., Washington, D.C. 20230.

SUPPLEMENTARY INFORMATION: 

Background

    On July 14, 1987, the Department published in the Federal Register 
(53 FR 2636) an antidumping duty order on solid urea from the GDR that 
established a cash deposit rate of 44.80 percent. On October 3, 1990, 
the GDR and the pre-unification territory of the FRG were unified into 
the single jurisdiction of the Federal Republic of Germany. On October 
1, 1990, the U.S. Customs Service issued instructions that it would be 
appropriate to treat goods that would have been considered products 
from the former GDR, and were entered or withdrawn from warehouse for 
consumption on or after October 3, 1990, as products of the unified FRG 
for customs purposes. In response, on October 10, 1990, the Department 
instructed the U.S. Customs Service to suspend liquidation of all 
entries of solid urea from the unified FRG but not to collect cash 
deposits on solid urea from any company located in what was the pre-
unification territory of the FRG. Thus, entries of solid urea from the 
pre-unification territory of the FRG were suspended at what was in 
effect a zero cash deposit rate. We further instructed U.S. Customs 
officials to continue collecting cash deposits from manufacturers 
located in what had been the GDR.
    On February 12, 1992, the Department published in the Federal 
Register (57 FR 5130) the initiation of a changed circumstances review 
on solid urea from the former GDR (Notice of Initiation). At the time 
of initiation, companies producing solid urea in the pre-unification 
territory of the FRG were shipping to the United States. Accordingly, 
the Department initiated its review to determine whether the order on 
solid urea from the former GDR is applicable to shipments from 
producers located in the pre-unification territory of the FRG.

Scope of the Review

    Imports covered by this review are those of solid urea. At the time 
of the publication of the antidumping duty order, such merchandise was 
classifiable under item 480.30 of the Tariff Schedules of the United 
States Annotated (TSUSA). This merchandise is currently classified 
under the Harmonized Tariff Schedule of the United States (HTS) item 
number 3102.10.00. These TSUSA and HTS item numbers are provided for 
convenience and Customs purposes only. The written description remains 
dispositive.

Analysis

    Although the Department normally administers antidumping 
proceedings on a country-by-country basis, neither the statute, the 
regulations, nor the GATT expressly require such an approach. Indeed, 
as the Department stated in connection with the special circumstances 
surrounding the breakup of the Soviet Union and its potential effect on 
the then-pending antidumping duty investigation concerning uranium, the 
focus of the law is on merchandise, not countries. See Postponement of 
Preliminary Antidumping Duty Determination; Uranium from the Former 
Union of Soviet Socialist Republics (USSR), 57 FR 11064 (1992) 
(incorporating by reference, memorandum from F. Sailer to A. Dunn dated 
March 24, 1992); see also Techsnabexport, Ltd. v. United States, 802 F. 
Supp. 469, 471-72 (Ct. Int'l Trade 1992).
    In the present case, there are special circumstances that justify 
maintaining the subject order on the Five States, but not on the 
remaining German states. The geopolitical entity that was known as 
[[Page 21068]] the GDR no longer exists. On October 3, 1990, the former 
GDR and the pre-unification territory of the FRG were unified into the 
single jurisdiction of the FRG. However, no less-than-fair-value (LTFV) 
investigation or injury test covering solid urea has been conducted for 
producers located in the pre-unification territory of the FRG. Thus, 
expansion of the order to the territory of the unified FRG would raise 
serious legal questions under the GATT and U.S. law--both regimes 
contemplate the assessment of antidumping duties only after injury and 
LTFV determinations that provide affected parties with certain 
procedural safeguards, including adequate notice and the opportunity to 
comment.
    By maintaining the order on solid urea from the Five States, we 
believe we are reaching a result that is consistent with U.S. law and 
our international obligations. First, this result comports with the 
holding in the Techsnabexport case. Specifically, it preserves, 
notwithstanding the change in political borders, the original 
geographic scope of the order. 802 F. Supp. at 472-74. Second, as noted 
above, nothing in the GATT or U.S. law expressly precludes the 
maintenance of a region- or province-specific order where, as here, the 
country originally subject to the order has combined with another 
country. Expansion of the order to cover all shipments from the unified 
FRG, on the other hand, would subject producers to antidumping duties 
on merchandise which was never covered by injury and LTFV 
determinations at the International Trade Commission and the 
Department. Finally, revocation of the order, while avoiding the 
concerns raised by a country-wide order, would, as a result of a change 
in government or political borders, deprive the petitioners of relief 
they sought and obtained. As in the Techsnabexport case, 802 F. Supp. 
at 472, where the breakup of the Soviet Union did not justify the 
termination of the then-pending antidumping duty investigation of 
uranium, the change in government and political borders in this case 
does not provide a basis for revocation of the order.

Preliminary Results

    According, due to the unique circumstances of this case, the 
Department preliminarily determines that the appropriate action is to 
maintain the order and the existing 44.80 percent cash deposit rate on 
solid urea from the five German states that formerly constituted the 
GDR (Brandenburg, Mecklenburg-Vorpommern, Saxony, Saxony-Anhalt, and 
Thuringia (plus any other territory included in the former GDR)) and to 
allow entry of shipments from the pre-unification territory of the FRG 
without regard to antidumping duties.

Initiation of Changed Circumstances Antidumping Duty Administrative 
Review

    Pursuant to section 751(b) of the Tariff Act of 1930, as amended 
(the Tariff Act) and 19 CFR 353.22(f), the Department may review a 
determination whenever changed circumstances are sufficient to warrant 
such a review. In the instant case, the current cash deposit rate is 
based upon the non-market economy analysis provided for in section 
773(c) of the Act. However, the Department has determined that as of 
October 3, 1990, producers located in the five German states that 
formerly constituted the GDR have been operating in a market-oriented 
economy. See Final Affirmative Countervailing Duty Determinations; 
Certain Steel Products from Germany, 58 FR 37315, 37324 (July 9, 1993).
    Therefore, the Department is initiating a second changed 
circumstances review pursuant to section 751(b) of the Tariff Act and 
19 CFR 353.22(f). In the next review, the Department will calculate a 
new cash deposit rate using a market economy analysis for any shipments 
of solid urea from the Five States occurring after October 2, 1990 and 
before the effective date of this notice. See Antidumping Duty Order 
and Initiation of a Changed Circumstances Antidumping Duty 
Administrative Review: Certain Cut-to-Length Carbon Steel Plates from 
Poland, 58 FR 44166 (1993) (change from a non-market to market economy 
justified a changed circumstances review to calculate a new cash 
deposit rate).

Suspension of Liquidation

    The following deposit requirements will be effective for all 
shipments of the subject merchandise entered, or withdrawn from 
warehouse, for consumption on or after publication date of the final 
results of this changed circumstances review, as provided for by 
section 751(a)(1) of the Tariff Act. A cash deposit of estimated 
antidumping duties shall be required on shipments of the subject 
merchandise as follows:
    (1) No cash deposit will be required for shipments of solid urea 
produced by firms located in the pre-unification territory of the FRG.
    (2) The existing 44.80 percent cash deposit rate will remain in 
effect, pending the results of the second changed circumstances review, 
for shipments of solid urea produced by firms located in the five 
German states that formerly constituted the GDR (Brandenburg, 
Mecklenburg-Vorpommern, Saxony, Saxony-Anhalt, and Thuringia (plus any 
other territory included in the former GDR)).

Public Comment

    Case briefs and/or written comments from interested parties on the 
preliminary results of this changed circumstances review (initiated 
Feb. 12, 1992) may be submitted no later than 25 days after the date of 
publication of this notice. Rebuttal briefs and rebuttals to written 
comments, limited to issues raised in those comments, may be filed no 
later than 32 days after the date of publication. All written comments 
shall be submitted in accordance with 19 CFR 353.31(e) and shall be 
served on all interested parties on the Department's service list in 
accordance with 19 CFR 353.31(g). Interested parties may also request a 
hearing within ten days of the date of publication of this notice. Any 
hearing, if requested, will be held no later than 39 days after the 
date of publication of this notice. The Department will publish the 
final results of this changed circumstances review, including the 
results of its analysis of any written comments.
    This administrative review and notice are in accordance with 
section 751(b) of the Tariff Act and 19 CFR 353.22(f).

    Dated: April 21, 1995.
Paul L. Joffe,
Deputy Assistant Secretary for Import Administration.
[FR Doc. 95-10638 Filed 4-28-95; 8:45 am]
BILLING CODE 3510-DS-M