13286 Federal Register / Vol. 66, No. 43 / Monday, March 5, 2001 / Notices

7304.29.30.20, 7304.29.30.30,

7304.29.30.40, 7304.29.30.50,

7304.29.30.60, 7304.29.30.80,

7304.29.40.10, 7304.29.40.20,

7304.29.40.30, 7304.29.40.40,

7304.29.40.50, 7304.29.40.60,

7304.29.40.80, 7304.29.50.15,

7304.29.50.30, 7304.29.50.45,

7304.29.50.60, 7304.29.50.75,

7304.29.60.15, 7304.29.60.30,

7304.29.60.45, 7304.29.60.60,

7304.29.60.75, 7305.20.20.00,

7305.20.40.00, 7305.20.60.00,

7305.20.80.00, 7306.20.10.30,

7306.20.10.90, 7306.20.20.00,

7306.20.30.00, 7306.20.40.00,

7306.20.60.10, 7306.20.60.50,

7306.20.80.10, and 7306.20.80.50.

Although the HTSUS subheadings are

provided for convenience and customs

purposes, our written description of the

scope of this order is dispositive.

Analysis of Comments Received

All issues raised in the case and

rebuttal briefs by parties to this

administrative review are addressed in

the ‘‘Issues and Decision Memorandum’’

(Decision Memo) from Joseph A.

Spetrini, Deputy Assistant Secretary,

Import Administration, to Bernard T.

Carreau, fulfilling the duties of Assistant

Secretary for Import Administration,

dated February 8, 2001, which is hereby

adopted by this notice. A list of the

issues which parties have raised and to

which we have responded, all of which

are in the Decision Memo, is attached to

this notice as an Appendix. Parties can

find a complete discussion of all issues

raised in this review and the

corresponding recommendations in this

public memorandum which is on file in

the Central Records Unit, located in

room B–099 of the main Department of

Commerce Building. In addition, a

complete version of the Decision Memo

can be accessed directly on the Web at

http://ia.ita.doc.gov. The paper copy

and electronic version of the Decision

Memo are identical in content.

Changes Since the Preliminary Results

We have not made any changes to the

preliminary margins, which were based

on adverse facts available.

Final Results of Review

We determine that the following

percentage margins exist for the period

August 1, 1998 through July 31, 1999:

Manufacturer/exporter Margin

(percent)

Hallmark Tubulars Ltd ................ 44.20

Itochu Corp ................................. 44.20

Itochu Project Management Corp 44.20

Nippon Steel Corp ...................... 44.20

The Department shall determine, and

Customs shall assess, antidumping

duties on all appropriate entries.

In addition, the following deposit

requirements will be effective upon

publication of this notice of final results

of administrative review for all

shipments of OCTG from Japan entered,

or withdrawn from warehouse, for

consumption on or after the date of

publication, as provided by section

751(a)(1) of the Act: (1) The cash deposit

rates for the reviewed companies will be

the rates shown above except that, for

firms whose weighted-average margins

are less than 0.5 percent and therefore

de minimis, the Department shall

require no deposit of estimated

antidumping duties; (2) for previously

reviewed or investigated companies not

listed above, 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, a prior review, or the

original less-than-fair-value (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 44.20

percent. This rate is the ‘‘All Others’’

rate from the LTFV investigation.

These deposit requirements shall

remain in effect until publication of the

final results of the next administrative

review.

This notice also serves as a final

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 doubled

antidumping duties.

This notice also serves as a reminder

to parties subject to administrative

protective orders (APO) of their

responsibility concerning the return or

destruction of proprietary information

disclosed under APO in accordance

with 19 CFR 351.305. Timely written

notification of the return/destruction of

APO materials or conversion to judicial

protective order is hereby requested.

Failure to comply with the regulations

and terms of an APO is a violation

which is subject to sanction.

We are issuing and publishing this

determination and notice in accordance

with sections 751(a)(1) and 777(i) of the

Act.

Dated: February 8, 2001.

Timothy J. Hauser,

Acting Under Secretary for International

Trade.

Appendix—List of Issues

1. Existence of a Sale to an Unaffiliated

Party for Exportation to the United States.

2. Application of North American Free

Trade Agreement Provisions to Merchandise

Imported under Temporary Import Bond

(TIB).

3. Liquidation of Entries of Sumitomo

Metal Industries’ Unreviewed Sales.

[FR Doc. 01–5155 Filed 3–2–01; 8:45 am]

BILLING CODE 3510–DS–P

DEPARTMENT OF COMMERCE

International Trade Administration

[A–823–810]

Notice of Preliminary Determination of

Sales at Less Than Fair Value and

Postponement of Final Determination:

Solid Agricultural Grade Ammonium

Nitrate From Ukraine

AGENCY: Import Administration,

International Trade Administration,

Department of Commerce.

ACTION: Notice of preliminary

determination of sales at less than fair

value.

SUMMARY: We preliminarily determine

that solid agricultural grade ammonium

nitrate from Ukraine is being, or is likely

to be, sold in the United States at less

than fair value, as provided in section

733 of the Tariff Act of 1930, as

amended. The estimated dumping

margin for J.S.C. ‘‘Concern’’ Stirol is

113.38 percent. The Ukraine-wide rate,

which is applicable to all other

producers/exporters, is 113.38 percent.

We also preliminarily determine that

critical circumstances exist.

Interested parties are invited to

comment on this preliminary

determination. If this investigation

proceeds on the current schedule, we

will make our final determination not

later than 105 days after the date of

publication of this preliminary

determination in the Federal Register.

EFFECTIVE DATE: March 5, 2001.

FOR FURTHER INFORMATION CONTACT:

Melani Miller or Jarrod Goldfeder,

Import Administration, International

Trade Administration, U.S. Department

of Commerce, 14th Street and

Constitution Avenue, NW., Washington,

DC 20230; telephone: (202) 482–0116 or

(202) 482–0189, respectively.

The Applicable Statute

Unless otherwise indicated, all

citations to the Tariff Act of 1930, as

Federal Register / Vol. 66, No. 43 / Monday, March 5, 2001 / Notices 13287

1The 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’’).

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).

SUPPLEMENTARY INFORMATION

Case History

Since the initiation of this

investigation on November 8, 2000 (see

Initiation of Antidumping Duty

Investigation: Solid Agricultural Grade

Ammonium Nitrate from Ukraine, 65 FR

66966 (November 8, 2000) (‘‘Notice of

Initiation’’)), the following events have

occurred:

In the Notice of Initiation, the

Department invited parties to comment

on the request made by the petitioner

(the Committee for Fair Ammonium

Nitrate Trade) for an expedited

preliminary determination. On

November 13, 2000, we received

comments from J.S.C. ‘‘Concern’’ Stirol

(‘‘Stirol’’), a Ukrainian producer/

exporter of the subject merchandise; the

petitioner; and ConAgra, Inc.

(‘‘ConAgra’’), an interested party and

importer of the subject merchandise.

Based on our review of these comments

and the original request from the

petitioner, we announced our intention

to issue our preliminary determination

by February 23, 2001. See November 22,

2000 memorandum to the Acting

Deputy Assistant Secretary ‘‘Whether to

Expedite the Preliminary

Determination,’’ which is on file in

Import Administration’s Central

Records Unit (‘‘CRU’’), Room B–099 of

the main Department of Commerce

building.

On November 22, 2000, the

Department issued an antidumping

questionnaire to the Ukrainian Embassy

in Washington, DC and requested that

the Embassy forward the questionnaire

to all Ukrainian producers/exporters of

subject merchandise that sold to the

United States during the period of

investigation (‘‘POI’’). The Department

also sent the antidumping questionnaire

directly to the four producers/exporters

named in the petition.1

Pursuant to the allegation of critical

circumstances in the petition, the

Department, in its November 22, 2000

questionnaire, also requested

information regarding shipments of the

subject merchandise to the United

States for the period January 1998

through the most recent date for which

data was available (including, at

minimum, November 2000). We

received this information from Stirol on

December 6, 2000. At the Department’s

request, Stirol submitted revised

shipment data on February 7, 2001. No

other company provided the requested

information. The petitioner provided

supplemental information with respect

to its critical circumstances allegation

on February 13, 2001. The critical

circumstances analysis for this

preliminary determination is discussed

below in the ‘‘Critical Circumstances’’

section.

Also on November 22, 2000, in

response to a request by the petitioner

to alter the POI, we issued a

memorandum explaining our decision

not to do so in this investigation. See

November 22, 2000 memorandum to the

Acting Deputy Assistant Secretary

‘‘Time Period for the Period of

Investigation’’ (‘‘POI Memo’’), which is

on file in the Department’s CRU. This

issue is discussed further in the ‘‘Period

of Investigation’’ section, below.

On November 22, 2000, the

Department also invited interested

parties to comment on surrogate country

selection and to provide publicly

available information for valuing the

factors of production. We received

responses from the petitioner and Stirol

on December 27, 2000. Both Stirol and

the petitioner filed rebuttal comments

on surrogate values on January 3, 2001.

Stirol and the petitioner submitted

further surrogate value information on

February 13, February 15, February 16,

February 20, and February 21, 2001.

On November 27, 2000, the United

States International Trade Commission

(‘‘ITC’’) notified the Department of its

affirmative preliminary injury

determination in this case.

On December 6, 2000, we received a

response from Severodonetsk indicating

that it did not make any shipments of

the subject merchandise to the United

States during the POI.

On December 27, 2000, and January

12, 2001, the Department received

questionnaire responses for Sections A,

C, and D from Stirol. We issued

supplemental questionnaires to Stirol

on January 10 and January 24, 2001, and

received supplemental responses from

Stirol on January 24 and February 7,

2001. We received comments on Stirol’s

responses from the petitioner on January

5 and January 19, 2001.

With regard to Cherkassy, we received

an improperly filed Section A response

on December 27, 2000. This response

was resubmitted by Cherkassy on

January 12, 2001. We received

comments on Cherkassy’s Section A

response from the petitioner on January

22, 2001. We issued a Section A

supplemental questionnaire to

Cherkassy on January 24, 2001. Despite

the Department’s numerous attempts to

contact Cherkassy and to allow

Cherkassy to file its responses,

Cherkassy neither submitted a response

to the Section A supplemental

questionnaire nor to Sections C and D

of the questionnaire.

On January 3, 2001, we sent letters to

Rivneazot and the Embassy of Ukraine

informing them that, because we had

not received any questionnaire

responses from Rivneazot or from any

other producer/exporter of the subject

merchandise, we were assuming that,

other than the companies already

participating, no other companies

(including Rivneazot) would be

participating in this investigation. In

response, on January 30, 2001, the

Embassy of Ukraine notified us that

Rivneazot did not make any shipments

of the subject merchandise to the United

States during the POI. We received no

other response to these letters.

Finally, on February 13 and February

15, 2001, both the petitioner and Stirol

provided comments and rebuttal

comments on several issues related to

the preliminary determination.

Postponement of Final Determination

and Extension of Provisional Measures

Pursuant to section 735(a)(2) of the

Act, on February 13, 2001, Stirol

requested that in the event of an

affirmative preliminary determination

in this investigation, the Department

postpone its final determination by 30

days. At the same time, Stirol requested

that the Department extend by 30 days

the application of the provisional

measures prescribed under 19 CFR

351.210(e)(2). In accordance with 19

CFR 351.210(b), because (1) our

preliminary determination is

affirmative, (2) the requesting exporter

accounts for a significant proportion of

exports of the subject merchandise, and

(3) no compelling reasons for denial

exist, we are granting Stirol’s request

and are postponing the final

determination until no later than 105

days after the publication of this notice

in the Federal Register. Suspension of

liquidation will be extended

accordingly.

Scope of Investigation

For purposes of this investigation, the

products covered are solid, fertilizer

grade ammonium nitrate (‘‘ammonium

13288 Federal Register / Vol. 66, No. 43 / Monday, March 5, 2001 / Notices

nitrate’’) 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, the written

description of the merchandise under

investigation is dispositive.

Period of Investigation

As noted above, the petitioner

requested that the Department alter the

normal POI called for in section

351.204(b)(1) of the Department’s

regulations to include the first quarter of

2000, either by defining the POI as the

first and second quarters, or by

expanding the POI to include the first,

second, and third quarters. As explained

in the POI Memo, we have not adopted

the petitioner’s suggested POI. Thus, the

POI for this investigation corresponds to

the two most recent fiscal quarters prior

to the filing of the petition, i.e., April 1,

2000 through September 30, 2000.

Nonmarket Economy Country and

Market Oriented Industry Status

The Department has treated Ukraine

as a nonmarket economy (‘‘NME’’)

country in all past antidumping

investigations. See, e.g., Notice of

Preliminary Determinations of Sales at

Less Than Fair Value: Steel Concrete

Reinforcing Bars from Poland,

Indonesia, and Ukraine, 66 FR 8343

(January 30, 2001) and 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) (‘‘CTL Plate

from Ukraine’’). This NME designation

remains in effect until it is revoked by

the Department (see section 771(18)(C)

of the Act).

The respondents in this investigation

have not requested a revocation of

Ukraine’s NME status. We have,

therefore, preliminarily determined to

continue to treat Ukraine as an NME.

Separate Rates

In an NME proceeding, the

Department presumes that a single

dumping margin is appropriate for all

exporters unless a firm establishes that

it is eligible for a separate rate. In this

investigation, Stirol has requested that it

be assigned a separate rate. Pursuant to

this request, Stirol has provided the

requested company-specific separate

rates information and has stated that it

is not subject to any element of

governmental ownership or control.

Although Cherkassy submitted

information relating to separate rates,

that information was incomplete.

The Department establishes whether

each exporting entity is entitled to a

separate rate based on its independence

from government control over its

exporting activities by applying a test

arising out of the Final Determination of

Sales at Less Than Fair Value: Sparklers

from the People’s Republic of China, 56

FR 20588 (May 6, 1991), as modified by

Final Determination of Sales at Less

Than Fair Value: Silicon Carbide from

the People’s Republic of China (59 FR

22585, May 2, 1994).

The Department’s separate rate test is

not concerned, in general, with

macroeconomic/border-type controls,

e.g., export licenses, quotas, and

minimum export prices, particularly if

these controls are imposed to prevent

dumping. The test focuses, rather, on

controls over the investment, pricing,

and output decision-making process at

the individual firm level. See CTL Plate

from Ukraine; Tapered Roller Bearings

and Parts Thereof, Finished and

Unfinished, from the People’s Republic

of China: Final Results of Antidumping

Duty Administrative Review, 62 FR

61276 (November 17, 1997) (‘‘TRBs

IX’’); and Honey from the People’s

Republic of China: Preliminary

Determination of Sales at Less than Fair

Value, 60 FR 14725, 14726 (March 20,

1995).

Under the separate rates test, the

Department assigns a separate rate in an

NME case only if an individual

respondent can demonstrate the absence

of both de jure and de facto

governmental control over its export

activities:

1. Absence of De Jure Control

The Department considers three

factors which support, though do not

require, a finding of de jure absence of

governmental control. These factors

include: (1) An absence of restrictive

stipulations associated with an

individual exporter’s business and

export licenses; (2) any legislative

enactments decentralizing control of

companies; or (3) any other formal

measures by the government

decentralizing control of companies

(see, e.g., TRBs IX).

Stirol has placed documents on the

record that it claims demonstrate the

absence of de jure governmental control,

including the ‘‘Law of Ukraine On

Economic Associations,’’ the ‘‘Law of

Ukrainian SSR On Foreign Economic

Activities,’’ and the ‘‘Edict of the

President of Ukraine On Improvement

of the Currency Regulation.’’ These

laws, enacted by the Government of

Ukraine, demonstrate a significant

degree of deregulation of Ukrainian

business activity, as well as

deregulation of Ukrainian export

activity.

Because the Government of Ukraine

created a right of ownership of business

enterprises for private persons and

collectives, open joint-stock companies,

such as Stirol, are now distinct legal

entities. According to Stirol, through

this ownership right, it has the right to

freely engage in economic activity,

negotiate and sign contracts, and

independently develop business plans.

It also may independently choose its

managers.

In a prior case, CTL Plate from

Ukraine, the Department analyzed

Ukraine’s laws and regulations, and

found that they establish an absence of

de jure control. We have no new

information in this proceeding that

would cause us to reconsider this

determination. Moreover, although the

Government of Ukraine does maintain

export controls for certain categories of

goods, Stirol states that the subject

merchandise exported to the United

States is not subject to any of these

controls. Additionally, Stirol asserts that

the subject merchandise does not appear

on any government list regarding export

provisions or licensing and that there

are no export quotas applicable to the

subject merchandise.

Accordingly, we preliminarily

determine that there is an absence of de

jure governmental control over Stirol’s

export pricing and marketing decisions.

2. Absence of De Facto Control

The Department typically considers

four factors in evaluating whether a

respondent is subject to de facto

governmental control of its export

functions: (1) Whether the export prices

are set by, or subject to the approval of,

a governmental authority; (2) whether

the respondent has authority to

negotiate and sign contracts and other

agreements; (3) whether the respondent

has autonomy from the government in

making decisions regarding the

selection of its management; and (4)

whether the respondent retains the

proceeds of its export sales and makes

independent decisions regarding

disposition of profits or financing of

losses (see Final Determination of Sales

at Less Than Fair Value: Certain

Preserved Mushrooms from the People’s

Federal Register / Vol. 66, No. 43 / Monday, March 5, 2001 / Notices 13289

2See, also, February 23, 2001, memorandum to

the Deputy Assistant Secretary ‘‘Preliminary

Determination Adverse Facts Available Rate,’’

which is on file in the Department’s CRU.

Republic of China, 63 FR 72255

(December 31, 1998)).

Stirol has asserted (and has provided

supporting documentation) that it: (1)

Establishes its own export prices; (2)

negotiates contracts without guidance

from any governmental entities or

organizations; (3) makes its own

personnel decisions with regard to the

selection of management; and (4) retains

the proceeds from export sales (although

50 percent of foreign currency earnings

must be converted into Ukrainian

currency) and uses profits according to

its business needs without any

restrictions. Additionally, Stirol has

stated that it does not coordinate or

consult with other exporters regarding

its pricing. This information supports a

preliminary finding that there is an

absence of de facto governmental

control of the export functions of Stirol.

Consequently, subject to verification,

we preliminarily determine that Stirol

has met the criteria for the application

of separate rates. Also, because

Cherkassy failed to provide the

information needed to support its claim

for a separate rate, we preliminarily

determine that Cherkassy is subject to

the Ukraine-wide rate, discussed below.

Ukraine-Wide Rate

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 we presume that NME

producers/exporters that are not eligible

for a separate rate do not act

independently from the government, we

preliminarily determine that all

Ukrainian producers/exporters of

ammonium nitrate, other than Stirol,

failed to respond to our questionnaire.

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 administering

authority or the Commission 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 administering authority and the

Commission 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 all of the following

requirements are met: (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.

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. In this case, except for

Stirol, any Ukrainian producers/

exporters of subject merchandise that

exported to the United States during the

POI failed to act to the best of their

ability by not providing a response to

the Department’s questionnaire. Thus,

the Department has determined that, in

selecting from among the facts

otherwise available, an adverse

inference is warranted.

It is the Department’s practice to

assign to respondents which do not

provide a full response to the

Department’s antidumping

questionnaire the higher of: (1) The

highest margin stated in the notice of

initiation; or (2) the highest margin

calculated for any respondent in the

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)). In this case, the highest margin

on record is 257 percent, the rate from

the petition as recalculated by the

Department in the Notice of Initiation.

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, we

examined evidence supporting the

calculations in the petition. In

accordance with section 776(c) of the

Act, to the extent practicable, we

examined the key elements of the export

price (‘‘EP’’) and normal value (‘‘NV’’)

calculations on which the petition

margin calculations were based. The

petitioner’s methodology for calculating

EP and NV is discussed in the Notice of

Initiation. To corroborate the

petitioner’s EP calculations, we

compared the U.S. sales prices in the

petition to official U.S. government

import statistics for the subject

merchandise during the POI. To

corroborate the petitioner’s NV

calculations, we compared the factor

consumption rates for the most

significant inputs reported in the

petition to the factor consumption rates

reported by Stirol, the only responding

company in this investigation.

Regarding the factor values, because the

Department has preliminarily

determined to use a different surrogate

country than was used in the petition,

we have substituted the factor values

developed for this preliminary

determination for those in the petition.

In instances where a factor was reported

in the petition for which we did not

develop a surrogate value, we continued

to use the value in the petition.

After making these changes, we found

that the margin calculated for Stirol,

113.38 percent, is the highest margin on

the record of this case.2 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 preliminarily

determined the Ukraine-wide rate to be

113.38 percent. For the final

determination, the Department will

consider all margins on the record at

that time for the purpose of determining

the most appropriate margin based on

adverse facts available.

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 EP to NV,

as described in the ‘‘Export Price’’ and

‘‘Normal Value’’ sections of this notice,

below. In accordance with section

777A(d)(1)(A)(i) of the Act, we

compared POI-wide weighted-average

EPs to the NVs.

13290 Federal Register / Vol. 66, No. 43 / Monday, March 5, 2001 / Notices

Export Price

For Stirol, 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 FOB Ukrainian port prices.

Where appropriate, we made deductions

from the starting price (gross unit price)

for inland freight from the plant/

warehouse to the port of export and

foreign brokerage and handling

expenses. Because the domestic inland

freight and brokerage and handling

expenses were paid in a nonmarket

economy currency, we based these

charges on surrogate values from

Indonesia. (See ‘‘Normal Value’’ section

below for further discussion.)

Normal Value

1. Surrogate Country

Section 773(c)(4) of the Act requires

the Department to value the 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 (‘‘Surrogate Country

Memorandum’’)). The petitioner has

alleged that India is also economically

comparable to Ukraine based on a

comparison of per capita GNP in 1998

and 1999.

Regarding the second criterion

(related to significant production of

comparable merchandise), Stirol has

argued that, among the countries that

are economically comparable to

Ukraine, Indonesia and Egypt are

significant producers of merchandise

comparable to ammonium nitrate. The

petitioner has alleged that India,

Indonesia, and Pakistan are significant

producers of comparable merchandise.

The petitioner argues that the

Department should depart from the

Surrogate Country Memorandum, as it

has done in past cases, and select India

as the appropriate surrogate country in

this investigation. See, e.g., Notice of

Final Determination of Sales at Less

Than Fair Value: Certain Small

Diameter Carbon and Alloy Seamless

Standard, Line and Pressure Pipe From

Romania, 65 FR 39125 (June 23, 2000)

(determining that, although not

included in the original Office of Policy

surrogate country memorandum,

Indonesia was the most appropriate

surrogate country for Romania because

Indonesia was a significant producer of

merchandise comparable to the subject

merchandise and, contrary to other

potential surrogate countries, provided

reliable surrogate values for virtually all

factors of production) (‘‘Pipe from

Romania’’). While conceding that

Indonesia is a suitable surrogate

country, the petitioner claims that India

is a more appropriate surrogate because,

in addition to satisfying the two

statutory criteria, India has the most

complete and reliable set of publicly

available information among possible

surrogate countries. Moreover, the

petitioner asserts that India is a more

significant producer of comparable

merchandise than Indonesia. Finally,

the petitioner was able to obtain the

financial statements of an Indian

producer of ammonium nitrate to use in

valuing selling, general, and

administrative expenses (‘‘SG&A’’),

profit, and overhead expenses, whereas

the Indonesian data obtained by the

petitioner pertained to a urea producer.

Stirol argues that Indonesia and Egypt

are suitable surrogate countries as both

satisfy the statutory criteria. For

Indonesia, Stirol was able to obtain

contemporaneous and reliable surrogate

data, including official Indonesian

import statistics for valuing all raw

material inputs and audited financial

reports from Indonesia producers of

identical and comparable merchandise

for purposes of calculating overhead,

SG&A, and profit. Stirol was not able to

obtain data for Egypt.

Stirol objects to the use of India as a

surrogate country, asserting that India is

not economically comparable to

Ukraine. Although the two countries are

similar in terms of per capita GDP,

Stirol argues that, according to The

World Factbook 2000, India is not

comparable to Ukraine in terms of

overall economic development. See Pipe

from Romania, 65 FR at 39125 (noting

that Indonesia was included among the

countries that are economically

comparable to Romania because

Indonesia’s GNP per capita and overall

economic development were similar to

the countries listed in the Office of

Policy surrogate country memorandum).

Finally, Stirol argues that the public

data available for India is neither

reliable nor contemporaneous with the

POI.

For purposes of the preliminary

determination, we have used Indonesia

as our surrogate. As noted in the

Surrogate Country Memorandum,

Indonesia is economically comparable

to Ukraine. Indonesia is also a

significant producer of merchandise

similar to the merchandise under

investigation. Although the Department

has the authority to select a country that

is not included in the Surrogate Country

Memorandum, there should be a good

reason to do so. In this case, Indonesia

was identified in the Surrogate Country

Memorandum as being economically

comparable to Ukraine. Indonesia is also

a significant producer of comparable

merchandise. Moreover, there is

sufficient publicly available information

on Indonesian values. Accordingly, we

have calculated normal value using

publicly available information from

Indonesia to value Stirol’s factors of

production, except where noted below.

2. Factors of Production

In accordance with section 773(c) of

the Act, we calculated NV based on the

factors of production reported by Stirol

using Indonesian values, except where

noted below.

In selecting the surrogate values, we

considered the quality, specificity, and

contemporaneity of the data. For those

values not contemporaneous with the

POI, unless otherwise noted below, we

adjusted for inflation using price indices

published in the International Monetary

Fund’s International Financial

Statistics. As appropriate, we adjusted

input values to make them delivered

prices.

For a detailed analysis of surrogate

values, see the memorandum from the

Team to the File, dated February 23,

2001, ‘‘Valuation of factors of

production for the preliminary

determination,’’ which is on file in the

Department’s CRU.

Natural Gas: For purposes of valuing

natural gas as both a material input and

energy input, we used publicly available

natural gas data for Indonesia for 1998

derived from the Second Quarter 2000

Energy Prices & Taxes, which is

published by the International Energy

Agency of the OECD (‘‘Energy Prices &

Taxes’’). To inflate the 1998 Energy

Prices and Taxes natural gas value to

the POI, we used a regional inflation

index specific to the energy sector.

Auxiliary Materials and Catalysts:

With the exception of denatured

alcohol, belting, and materials

purchased from a market economy

country and paid for in a market

economy currency, we valued all of the

other material inputs and catalysts using

Indonesian import statistics obtained

Federal Register / Vol. 66, No. 43 / Monday, March 5, 2001 / Notices 13291

3For a further discussion of the Department’s

critical circumstances analysis, see February 23,

2001, memorandum to the Deputy Assistant

Secretary ‘‘Critical Circumstances Preliminary

Determination: Massive Imports,’’ which is on file

in the Department’s CRU.

4See Department October 15, 1998 Policy

Bulletin No. 98.4, ‘‘Timing of Issuance of Critical

Circumstances Determinations’’ (‘‘policy bulletin’’),

which can be found on the Department’s web page

at http://ia.ita.doc.gov.

from the Indonesian Bureau of

Statistics. For denatured alcohol,

because we found the Indonesian

import statistics to be unreliable, we

valued these inputs using Indian import

statistics. To value belting, we used an

Indian price quote from a published

news article. For materials purchased

from market economy suppliers that

were paid for in market economy

currency (i.e., lilamine, potassium

hydroxide, and ukon), we used the

actual purchase prices paid by Stirol

during the POI.

Labor: We valued labor using the

method described in 19 CFR

351.408(c)(3).

Energy: To value electricity, we used

the 1997 electricity rates reported in

Energy Prices and Taxes.

Inland Freight Rates: To value truck

freight, we used a August 1999 rate

quote from an Indonesian trucking

company. With regard to rail freight, we

used a February 2001 rail rate from an

Indonesian rail company obtained by

the Department from the American

Embassy in Jakarta, Indonesia.

Brokerage and Handling: We valued

brokerage and handling using publicly

available February 2001 price quotes

from an Indonesian freight forwarder

that provides both import-and exportrelated cargo services.

Factory Overhead, SG&A, and Profit:

We derived ratios for factory overhead,

SG&A, and profit using the 1999 annual

report of one Indonesian producer of a

product similar to the subject

merchandise.

Critical Circumstances

The petitioner has alleged that there

is a reasonable basis to believe or

suspect that critical circumstances exist

with respect to imports of ammonium

nitrate from Ukraine.3 The petitioner

submitted information supplementing

its allegation on February 13, 2001.

According to section 733(e) of the Act,

the Department may make a critical

circumstances determination at any

time after initiation of an investigation,

including prior to a preliminary

determination of dumping, assuming

adequate evidence of critical

circumstances is available. The

Department’s policy bulletin No. 98.4 of

October 15, 1998,4 provides further

guidance on this section of the Act,

stating that, if the facts of a case show

that importers, exporters, or producers

had knowledge that a case was likely to

be filed, and the other statutory and

regulatory criteria are met, the

Department should issue its preliminary

finding on critical circumstances before

the preliminary determination, and as

soon as possible after the initiation.

While the petitioner did include

arguments and evidence relating to

critical circumstances in the petition,

the petitioner did not provide at that

time evidence that importers, exporters,

or producers of ammonium nitrate had

early knowledge of the case. This

evidence was only provided on

February 13, 2001. Thus, there was not

sufficient information on the record for

the Department to make an early

preliminary critical circumstances

determination. Therefore, we are

making our preliminary critical

circumstances determination in

conjunction with this preliminary less

than fair value determination.

Section 733(e)(1) of the Act provides

that the Department will determine that

critical circumstances exist if there is a

reasonable basis to believe or suspect

that: (A)(i) There is a history of dumping

and material injury by reason of

dumped imports in the United States or

elsewhere of the subject merchandise, or

(ii) the person by whom, or for whose

account, the merchandise was imported

knew or should have known that the

exporter was selling the subject

merchandise at less than its fair value

and that there was likely to be material

injury by reason of such sales, and (B)

there have been massive imports of the

subject merchandise over a relatively

short period.

With respect to the first criterion,

there is currently an antidumping duty

order on ammonium nitrate from

Ukraine in the European Community

(‘‘EC’’). The existence of an

antidumping duty order in the EC on

ammonium nitrate from Ukraine is

sufficient evidence of a history of

injurious dumping. Accordingly, there

is no need to examine importer

knowledge.

In addressing the second criterion,

i.e., whether there are ‘‘massive

imports’’ over a ‘‘relatively short time

period,’’ the Department ordinarily

bases its analysis on import data for at

least the three months preceding (the

‘‘base period’’) and following (the

‘‘comparison period’’) the filing of the

petition. Imports normally will be

considered massive when imports

during the comparison period have

increased by 15 percent or more

compared to imports during the base

period. Section 351.206(i) of the

Department’s regulations also provides,

however, that if the Department finds

that importers, or exporters or

producers, had reason to believe, at

some time prior to the beginning of the

proceeding, that a proceeding was

likely, the Department may consider a

base and comparison period of not less

than three months from that earlier

time.

In this case, the petitioner has argued

that importers, exporters, or producers

of ammonium nitrate had reason to

believe that an antidumping proceeding

was likely as early as January 2000, well

before the filing of the petition, based on

the increase in imports of ammonium

nitrate from Ukraine and the

corresponding decrease in ammonium

nitrate imports from Russia following

the January 2000 preliminary

determination in the investigation of

ammonium nitrate from Russia. See

Notice of Preliminary Determination of

Sales at Less Than Fair Value; Solid

Fertilizer Grade Ammonium Nitrate

from the Russian Federation, 65 FR

1139 (January 7, 2000) and Notice of

Final Determination of Sales at Less

Than Fair Value; Solid Fertilizer Grade

Ammonium Nitrate from the Russian

Federation, 65 FR 42669 (July 11, 2000)

(‘‘Ammonium Nitrate from Russia’’).

Thus, the petitioner contends that, as a

result of the shift of imports of

ammonium nitrate from Russia to

Ukraine, importers, exporters, or

producers of ammonium nitrate would

have been aware that an investigation of

ammonium nitrate from Ukraine would

likely be forthcoming. Alternately, the

petitioner argues that two press reports

relating to Ammonium Nitrate from

Russia published in May and August

2000 in Green Markets, a fertilizer

industry publication, are sufficient

evidence to impute knowledge that

importers, or exporters or producers,

had reason to believe, at some time prior

to the beginning of the proceeding, that

a proceeding was likely.

In order to determine whether the

facts of this case showed that importers,

exporters, or producers had advance

knowledge that a case was likely to be

filed, we examined whether conditions

in the industry or published reports and

statements provided a basis for inferring

knowledge that an antidumping

investigation of ammonium nitrate from

Ukraine was likely. As noted above, the

petitioner provided two articles relating

to the Ammonium Nitrate from Russia

investigation from May and August

2000. The May 2000 article did not

specifically mention imports of

ammonium nitrate from Ukraine;

however, the August 2000 article did

13292 Federal Register / Vol. 66, No. 43 / Monday, March 5, 2001 / Notices

state that the U.S. industry was closely

monitoring imports of this product from

Ukraine. The petitioner did not provide

any published reports or information

indicating that knowledge of a possible

antidumping investigation of

ammonium nitrate from Ukraine was

publicly available as of January 2000.

We did a search of Lexis-Nexis and the

Internet to see if there were any other

articles or information pertaining to

ammonium nitrate from Ukraine. Our

research revealed nothing prior to the

August 2000 report.

Therefore, we find no evidence that

importers, or exporters or producers,

had reason to believe that a proceeding

on ammonium nitrate from Ukraine was

likely as of January or May 2000.

However, we find that the press report

in August 2000 was sufficient to

establish that, by early August 2000,

importers, exporters, or producers

knew, or should have known, that a

proceeding was likely. Accordingly, it is

appropriate to utilize a comparison

period starting in August 2000.

Therefore, to determine whether

imports of subject merchandise have

been massive over a relatively short

period, we compared shipment data for

Stirol and all other Ukrainian importers

covered by the Ukraine-wide rate during

the comparison period, August 2000

through November 2000, to shipments

during the base period, April 2000 to

July 2000.

Based on our analysis of the data from

the above base and comparison periods,

we found that shipments made by both

Stirol and all other Ukrainian producer/

exporters during the POI increased by

more than 15%.

Because of the alleged seasonality of

ammonium nitrate shipments (see

Ammonium Nitrate from Russia), we

examined whether this observed

increase was due to a seasonal surge.

We compared the reported shipment

data for Stirol and the data for all other

Ukrainian producers/exporters to

relevant historical data on all

ammonium nitrate shipments to the

United States (with the exception of

imports from Russia and Ukraine). We

used total imports in to the United

States of ammonium nitrate to test for

seasonality rather than historical

shipment patterns by Ukrainian

producers/exporters because Ukraine

only recently entered the U.S. market.

Hence, historical data for Ukraine was

not available.

We compared the percent change

from the base to the comparison period

to the historical percent change of all

sales of ammonium nitrate made to the

United States for the same base and

comparison periods from 1996 through

1999, excluding data from Ukraine and

Russia. This data shows that, during

these same base and comparison periods

in the years from 1996 through 1999,

there was a small percentage increase

relative to the increase in shipments for

Stirol and all other Ukrainian

producers/exporters in 2000. Thus, the

increase in shipments by Stirol and all

other Ukrainian producers/exporters

does not appear to be explained by

seasonality of shipments.

Therefore, we preliminarily determine

that the increases in imports for Stirol

and all other Ukrainian producers/

exporters were massive over a relatively

short period. Having met both

requirements for an affirmative

determination of critical circumstances,

we preliminarily determine that critical

circumstances exist for both Stirol and

the Ukraine-wide entity. We will make

a final determination concerning critical

circumstances when we make our final

determination of this investigation.

Verification

As provided in section 782(i) of the

Act, we will verify all information relied

upon in making our final determination.

Suspension of Liquidation

In accordance with section 733(d)(2)

of the Act, we are directing the Customs

Service to suspend liquidation of all

imports of subject merchandise from

Ukraine entered, or withdrawn from

warehouse, for consumption on or after

the date of publication of this notice in

the Federal Register. In addition, we are

directing Customs to suspend

liquidation of any unliquidated entries

of subject merchandise entered, or

withdrawn from warehouse, for

consumption on or after the date which

is 90 days prior to the date on which

this notice is published in the Federal

Register. We will instruct the Customs

Service to require a cash deposit or the

posting of a bond equal to the weightedaverage 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.

Exporter/manufacturer

Weightedaverage

margin

percentage

J.S.C. ‘‘Concern’’ Stirol ............. 113.38

Ukraine-wide rate ..................... 113.38

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 733(f) of

the Act, we have notified the ITC of our

determination. If our final

determination is affirmative, the ITC

will determine before the later of 150

days after the date of this preliminary

determination or 45 days after our final

determination whether these imports

are materially injuring, or threaten

material injury to, the U.S. industry.

Public Comment

Case briefs or other written comments

in six copies must be submitted to the

Assistant Secretary for Import

Administration no later than April 20,

2001, and rebuttal briefs no later than

April 25, 2001. A list of authorities used

and an executive summary of issues

should accompany any briefs submitted

to the Department. Such summary

should be limited to five pages total,

including footnotes. In accordance with

section 774 of the Act, we will hold a

public hearing, if requested, to afford

interested parties an opportunity to

comment on arguments raised in case or

rebuttal briefs. Tentatively, the hearing

will be held on April 27, 2001, at the

U.S. Department of Commerce, 14th

Street and Constitution Avenue, NW.,

Washington, DC 20230. Parties should

confirm by telephone the time, date, and

place of the hearing 48 hours before the

scheduled time.

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, U.S. Department

of Commerce, Room 1870, within 30

days of the 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 the issues to be discussed. Oral

presentations will be limited to issues

raised in the briefs. If this investigation

proceeds normally, we will make our

final determination not later than 105

days after the date of the preliminary

determination.

This determination is issued and

published in accordance with sections

733(d) and 777(i)(1) of the Act. Richard

W. Moreland is temporarily fulfilling

the duties of the Assistant Secretary for

Import Administration.

Dated: February 23, 2001.

Richard W. Moreland,

Deputy Assistant Secretary, Import

Administration.

[FR Doc. 01–5156 Filed 3–2–01; 8:45 am]

BILLING CODE 3510–DS–P