[Federal Register: January 3, 2003 (Volume 68, Number 2)]
[Notices]
[Page 353-355]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr03ja03-38]
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DEPARTMENT OF COMMERCE
International Trade Administration
[A-507-502]
Notice of Final Results of Antidumping Duty New Shipper Review:
Certain In-Shell Raw Pistachios from Iran
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
ACTION: Notice of final results in the antidumping duty new shipper
review of certain in-shell raw pistachios from Iran.
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SUMMARY: On August 6, 2002, the Department of Commerce (Department)
published the preliminary results of this new shipper review of the
antidumping duty order on certain in-shell raw pistachios from Iran.
See Certain In-Shell Raw Pistachios from Iran: Preliminary Results of
Antidumping Duty New Shipper Review, 67 FR 50863 (August 6, 2002)
(Preliminary Results). This review covers one exporter, Tehran Negah
Nima Trading Company, Inc. (Nima). The period of review (POR) is July
1, 2000, through June 30, 2001. Comments were submitted by the parties
and we have made changes to the margin calculation. The final weighted
average dumping margin for the reviewed firm is listed below in the
section entitled ``Final Results of the Review.''
EFFECTIVE DATE: January 3, 2003.
FOR FURTHER INFORMATION CONTACT: Phyllis Hall or Donna Kinsella at
(202) 482-1398, or (202) 482-0194, respectively; Antidumping and
Countervailing Duty Enforcement Group III, Import Administration,
International Trade Administration, U.S. Department of Commerce, 14th
Street and Constitution Avenue, N.W., Washington, D.C. 20230.
SUPPLEMENTARY INFORMATION:
Background
Since the publication of the Preliminary Results, the following
events have occurred. On October 17, 2002, the Department postponed the
final results of the review until no later than 150 days from the date
of issuance of the preliminary results. See Administrative Review of
Certain In-Shell Raw Pistachios From Iran: Extension of Time Limit for
Final Results of New Shipper Review, 67 FR 65337 (October 24, 2002). A
request for a public hearing was received by the Department from
petitioner (California Pistachio Commission) on August 13, 2002. On
August 14, 2002, respondent submitted information in response to a
supplemental cost of production questionnaire. On September 5, 2002,
respondent filed its case brief. On September 6, 2002, petitioner and
Western Pistachio Association (WPA), an interested party, filed case
briefs. On September 12, 2002, the Department rejected both
petitioner's and WPA's case briefs. On September 13, 2002, the
Department received comments from petitioner regarding respondent's
August 14, 2002 submission. On September 18, 2002, petitioner and WPA
resubmitted their case briefs. On September 30, 2002, respondent
submitted a supplemental case and rebuttal brief. On October 9, 2002,
the Department rejected respondents' supplemental and rebuttal case
brief. Respondent resubmitted a supplemental case brief and a rebuttal
case brief on October 15, 2002. On October 17, 2002, the Department
rejected respondents' October 15, 2002, supplemental case brief. On
October 21, 2002, respondent submitted a revised supplemental case
brief. On October 28, 2002, petitioner and Cal Pure Pistachios, Inc.
(Cal Pure), an interested party, submitted rebuttal briefs. On October
31, 2002, the Department rejected petitioners' rebuttal brief. On
November 1, 2002, petitioner submitted a revised rebuttal brief. On
December 9, 2002, petitioner, Cal Pure and respondent submitted
comments on the Department's December 4, 2002, verification reports in
the new shipper reviews, C-507-501 and C-507-601, copies of which were
placed on the record of this proceeding. The public hearing in this
proceeding was held on December 12, 2002.
Scope of Review
Imports covered by this review are raw, in-shell pistachio nuts
from which the hulls have been removed, leaving the inner hard shells
and edible meats, from Iran. The merchandise under review is currently
classifiable under item 0802.50.20.00 of the Harmonized Tariff Schedule
of the United States (HTSUS). Although the HTSUS subheadings are
provided for convenience and customs purposes, our written description
of the scope of this proceeding is dispositive.
Facts Available
Section 776(a) of the Tariff Act of 1930 (the Act) provides that
``if any interested party or any other person--(A) withholds
information that has been requested by the administering authority, (B)
fails to provide such information by the deadlines for the 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 subject to sections 782(d), and (e)
facts otherwise available in reaching the applicable determination. In
this review, respondent failed to provide requested information (i.e.,
cost information for all production facilities). In failing to disclose
the existence of a production facility, respondent did not provide
information that had been requested, leaving the Department unable to
perform a proper analysis of the cost of producing the subject
merchandise. Because the failure to provide the cost information was
revealed five weeks prior to the final results, time constraints do not
permit the Department to request the necessary information. Finally, as
the absence from the record of complete cost information renders the
reported per-unit costs unreliable, we conclude that, pursuant to
section 776(a) of the Act, use of partial use of facts otherwise
available is appropriate.
The statute also requires that certain conditions be met before the
Department may resort to the facts otherwise available. Where the
Department determines that a response to a request for information does
not comply with the request, section 782(d)
[[Page 354]]
of the Act provides that the Department will so inform the party
submitting the response and will, to the extent practicable, provide
that party the opportunity to remedy or explain the deficiency. If the
party submits further information that continues to be unsatisfactory,
or this information is not submitted within the applicable time limits,
the Department may, subject to section 782(e) of the Act, disregard all
or part of the original and subsequent responses, as appropriate. In
this case, the Department requested that the producer provide the
weighted-average cost of all facilities producing the product, and to
report all affiliated producers. In responding to our requests for
information, contrary to these instructions, respondent failed to
disclose the additional production facility. Because disclosure of the
existence of the additional production facility did not occur until
verification in the concurrent CVD proceeding, approximately five weeks
prior to the deadline for these final results and fourteen months after
this review began, we had no opportunity to inform respondent of any
deficiency in its responses or to request additional information. Prior
to the disclosure at verification, the Department appropriately relied
upon respondent's assertions that it had disclosed all relevant cost
information.
Section 782(e) of the Act provides that the Department ``shall not
decline to consider information that is submitted by an interested
party and is necessary to the determination but does not meet all the
applicable requirements established by the administering authority'' if
the information is timely, can be verified, is not so incomplete that
it cannot be used, and if the interested party acted to the best of its
ability in providing the information. Where all of these conditions are
met, and the Department can use the information without undue
difficulties, the statute requires it to do so. In this proceeding, the
proper, complete cost data was not provided, which renders the costs as
reported so incomplete and unreliable as to be unusable.
Therefore, in these final results, the Department will resort to
the partial use of facts available as the respondent's reported costs
cannot be relied upon, in accordance with section 776(a)(2)(A) of the
Act. In doing so, the Department must then determine whether the use of
an adverse inference in applying facts available is warranted under
section 776(b) of the Act. In the instant review, we find that an
adverse inference is warranted given that the respondent withheld
critical information with respect to the existence of the additional
production facility. This omission renders the reported cost data so
incomplete as to prevent the Department from determining the proper
basis for constructed value (CV). Moreover, the significance of this
omission is seriously compounded by the fact that normal value in this
review is based entirely on CV. For further discussion of application
of adverse facts available see comment 1 of the ``Issues and Decision
Memorandum'' (Issues and Decision Memorandum) from Joseph A. Spetrini,
Deputy Assistant Secretary, Import Administration, to Susan H. Kuhbach,
Acting Assistant Secretary for Import Administration, dated December
26, 2002 and the Memorandum to Neal M. Halper from Gina K. Lee, RE:
Constructed Value Adjustments for Final Results, dated December 26,
2002.
Analysis of Comments Received
All issues raised in the case and rebuttal briefs by parties in
this new shipper review are addressed in the Issues and Decision
Memorandum from Joseph A. Spetrini, Deputy Assistant Secretary, Import
Administration, to Susan H. Kuhbach, Acting Assistant Secretary for
Import Administration, dated December 26, 2002, 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 Issues and Decision
Memorandum, 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 B-099.
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.htm.
The paper copy and electronic
version of the Issues and Decision Memorandum are identical in content.
Changes since the Preliminary Determination
To determine whether sales of certain in-shell raw pistachios from
Iran to the United States were made at less than normal value, we
compared export price to normal value. Based on our analysis of
comments received, we have made certain changes in the margin
calculation. See Analysis Memorandum dated December 26, 2002.
Final Results of Review
We determine that the following percentage weighted-average margin
exists for the period July 1, 2000, through June 30, 2001:
------------------------------------------------------------------------
Weighted-Average
Exporter/Manufacturer Margin
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Tehran Negah Nima Trading Company, Inc. (Nima)....... 144.05 percent
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Assessment
The Department shall determine, and U.S. Customs shall assess,
antidumping duties on all appropriate entries. In accordance with 19
CFR 351.212(b) (2002), we have calculated exporter/importer-specific
assessment rates. We calculated importer-specific duty assessment rates
on a unit value per kilogram basis and then divided this sum by the
entered value for that sale. Based on our determination in this review,
we will instruct Customs to assess antidumping duties on the
merchandise subject to review. The Department is currently conducting a
new shipper review of the countervailing duty order on raw in-shell
pistachios from Iran involving Nima. The Department will adjust both
the antidumping duty assessment rate and cash deposit rate for Nima/
Maghsoudi Farms to offset any export subsidies found at the conclusion
of the countervailing new shipper review.
Cash Deposit Requirements
Bonding is no longer permitted to fulfill security requirements for
shipments from Nima of certain in-shell raw pistachios from Iran
entered, or withdrawn from warehouse, for consumption on or after the
publication date of these final results of new shipper review. As Nima
is the exporter but not the producer of subject merchandise, the
Department's final results will apply to subject merchandise exported
by Nima and produced by Maghsoudi Farms. See 19 CFR 351.107(b).
Therefore, the following deposit requirements will be effective upon
publication of this notice of final results of this new shipper review
for all shipments of subject merchandise entered, or withdrawn from
warehouse, for consumption on or after the date of publication, as
provided by section 751(a)(2)(B) of the Act: (1) For the merchandise
exported by Tehran Negah Nima Trading Company, Inc. (Nima) and produced
by Maghsoudi Farms, the cash deposit rate will be 144.05 percent; (2)
for subject merchandise exported by Nima but not produced by Maghsoudi
Farms, moreover, the cash deposit rate will be the ``all others'' rate
established in the original less than fair value (LTFV) investigation.
See 51 FR 25922 (July 17, 1986); (3) if the exporter is not a firm
covered in this review, a prior review, or the original LTFV
[[Page 355]]
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) if neither the exporter nor manufacturer is a
firm covered in this review or the original investigation, the cash
deposit rate will continue to be the ``all others'' rate of 184.28
percent established in the LTFV investigation. This ``all others'' rate
reflects the amount of export subsidies found in the final
countervailing duty determination in the investigation subtracted from
the dumping margin found in the less than fair value determination. See
51 FR 8344 (March 11, 1986). The Department will adjust the cash
deposit rate for Nima/Maghsoudi Farms to offset any export subsidies
found at the conclusion of the countervailing new shipper review. 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)(2) 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.
We are issuing and publishing these results and notice in
accordance with sections 751(a)(1) and 777(i) of the Act.
Dated: December 26, 2002.
Susan H. Kuhbach,
Acting Assistant Secretary for Import Administration.
Appendix I--Issues in Decision Memo
Comments and Responses
1. Adverse Facts Available
2. Bona Fide Sale
3. Verification
4. Exchange Rate
5. Home Market Selling Expenses
6. Disclosure at CVD Verification of Additional Farm
7. Fallah Sales/Expense Data
8. Other Cost Issues
9. Preferential Treatment
10. Combination Rate
[FR Doc. 03-76 Filed 1-2-03; 8:45 am]