[Federal Register Volume 62, Number 130 (Tuesday, July 8, 1997)]
[Notices]
[Pages 36492-36495]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-17726]


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DEPARTMENT OF COMMERCE

International Trade Administration
[A-429-601]


Preliminary Results of Antidumping Duty Administrative Review of 
Solid Urea From the Former German Democratic Republic

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

ACTION: Notice of preliminary results of antidumping duty 
administrative review.

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SUMMARY: In response to requests from interested parties, the 
Department of Commerce is conducting an administrative review of the 
antidumping duty order on solid urea

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from the former German Democratic Republic. The review covers exports 
of subject merchandise to the United States during the period July 1, 
1995 through June 30, 1996, and one firm SKW Stickstoffwerke Piesteritz 
GmbH (SKWP). The results of this review indicate the existence of no 
dumping margins for the period.
    We invite interested parties to comment on these preliminary 
results. Parties who submit arguments in this proceeding are requested 
to submit with the argument (1) a statement of the issue and (2) a 
brief summary of the argument.

EFFECTIVE DATE: July 8, 1997.

FOR FURTHER INFORMATION CONTACT: Nithya Nagarajan or Steven Presing, 
Office VII, Import Administration, International Trade Administration, 
U.S. Department of Commerce, 14th Street and Constitution Avenue, N.W., 
Washington, DC 20230; telephone (202) 482-3793.

SUPPLEMENTARY INFORMATION:

Applicable Statute and Regulations

    Unless otherwise indicated, all citations to the statute are 
references to the provisions effective January 1, 1995, the effective 
date of the amendments made to the Tariff Act of 1930 (the Act) by the 
Uruguay Round Agreements Act (URAA). In addition, unless indicated, all 
citations to the Department regulations are to the current regulations, 
as amended by the interim regulations published in the Federal Register 
on May 11, 1995 (60 FR 25130).

Background

    On July 8, 1996, the Department of Commerce (the Department) 
published in the Federal Register (61 FR 35712) a notice of 
``Opportunity to Request Administrative Review'' for the July 1, 1995 
through June 30, 1996, period of review (POR) of the antidumping duty 
order on solid urea from the former German Democratic Republic (GDR). 
In accordance with 19 CFR 353.22, petitioners requested a review for 
the aforementioned period. On August 15, 1996, the Department published 
a notice of initiation of antidumping review (61 FR 42416, 42417). The 
Department is now conducting a review of this respondent pursuant to 
section 751 of the Act.

Scope of 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 Department's written 
description of the scope remains dispositive for purposes of the order.

Product Comparisons

    In accordance with section 771(16) of the Act, we considered all 
products produced and sold by the respondent in the home market during 
the POR (and covered by the Scope of the Review) to be foreign like 
products for purposes of product comparisons to U.S. sales.

Fair Value Comparisons

    To determine whether sales of solid urea by respondent to the 
United States were made at less than fair value, we compared the EP to 
the NV, as described in the ``Export Price'' and ``Normal Value'' 
sections of this notice. In accordance with section 777A(d)(2), we 
calculated monthly weighted-average prices for NV and compared these to 
individual U.S. transactions, during the same month at the same level 
of trade.

Export Price

    We used EP, in accordance with subsections 772(a) and (c) of the 
Act, where the subject merchandise was sold directly or indirectly to 
the first unaffiliated purchaser in the United States prior to 
importation.
    We made adjustments as follows:
    We calculated EP based on delivered prices to unaffiliated 
customers in the United States. Where appropriate, we made adjustments 
from the starting price for early payment discounts, foreign inland 
freight, foreign brokerage and handling, international freight, U.S. 
inland freight, U.S. brokerage and handling, and U.S. Customs duties. 
We also adjusted the starting price for billing adjustments to the 
invoice price.

Normal Value

    In order to determine whether there was a sufficient volume of 
sales in the home market to serve as a viable basis for calculating NV, 
we compared respondent's volume of home market sales of the foreign 
like product to the volume of U.S. sales of the subject merchandise in 
accordance with section 773(a)(1)(C) of the Act. Since respondent's 
aggregate volume of home market sales of the foreign like product was 
greater than five percent of its aggregate volume of U.S. sales for the 
subject merchandise, we determined that the home market was viable. 
Therefore, we have based NV on home market sales.
    Where appropriate, we adjusted for discounts, inland freight, and 
inland insurance, and made circumstances of sale adjustments for credit 
expenses and warranty expenses. We also adjusted the starting price for 
billing adjustments to the invoice price. In addition, we deducted home 
market packing costs and added U.S. packing costs.

Levels of Trade (LOT)

    In accordance with section 773(a)(1)(B)(i) of the Act and the 
Statement of Administrative Action accompanying the URAA, to the extent 
practicable, the Department will calculate NV based on sales at the 
same LOT as the U.S. sale. When the Department is unable to find 
sale(s) in the comparison market at the same LOT as the U.S. sale(s), 
the Department may compare sales in the United States to foreign market 
sales at a different LOT. Final Determination of Sales at Less-Than-
Fair-Value of Certain Pasta from Italy, 61 FR 30330-31 (1996). The LOT 
of NV is that of the starting price sales in the home market.
    For EP, the relevant transaction for LOT is the sale from the 
exporter to the importer. In order to determine whether foreign market 
sales are at a different LOT than U.S. sales, the Department examines 
whether the foreign market sales have been made at different stages in 
the marketing process, or the equivalent, than the U.S. sales. The 
marketing process in both markets begins with goods being sold by the 
producer and extends to the sale to the final user, regardless of 
whether the final user is an individual consumer or an industrial user. 
The chain of distribution between the producer and the final user may 
have many or few links, and the respondent's sales occur somewhere 
along this chain. In the United States this is generally to an 
importer, whether independent or affiliated. We review and compare the 
distribution systems in the foreign market and the United States, 
including selling functions, class of customer, and the extent and 
level of selling expenses for each claimed LOT. Customer categories or 
descriptions (such as trading company or end-user) are useful in 
identifying different LOTs, but are insufficient to establish that 
there is a difference in the LOT without substantiation. An analysis of 
the chain of distribution and of the selling functions substantiates or 
invalidates claimed levels of trade. If the claimed levels are 
different, the selling functions performed in selling to each level 
should also be different. Conversely, if

[[Page 36494]]

levels of trade are nominally the same, the selling functions performed 
should also be the same. Different levels of trade necessarily involve 
differences in selling functions, but differences in selling functions 
(even substantial ones) are not alone sufficient to establish a 
difference in the LOT. Different levels of trade are characterized by 
purchasers at different places in the chain of distribution and sellers 
performing qualitatively or quantitatively different functions in 
selling to them.
    When sales in the U.S. and foreign market cannot be compared at the 
same LOT, an adjustment to NV may be appropriate. Section 773(a)(7)(A) 
provides that, after making all appropriate adjustments to EP or 
constructed export price (CEP) and NV, the Department will adjust NV to 
account for differences in these prices that are demonstrated to be 
attributable to differences in the LOT of the comparison sales in the 
foreign market.
    As noted in the Department's verification report, SKWP sold urea to 
an unrelated trading company in the United States and to end-users, 
distributors, and retailers in the home market. However, in applying 
the principles, stated above, to the facts in this case, we sought to 
compare the distribution systems used by SKWP for its U.S. and home 
market sales, including selling functions, class of customer, and the 
extent and level of selling expenses for each LOT. In reviewing the 
selling functions performed by SKWP for both the U.S. and home market 
sales transactions, we considered all types of selling activities, both 
claimed and unclaimed, that had been performed. As noted above, it is 
the Department's preference to examine selling functions on both a 
qualitative and quantitative basis. While SKWP has not claimed sales to 
different levels of trade in the home market and the U.S. market, the 
company provided information on the nature of the various selling 
functions performed for the sales transactions in both the U.S. and 
home markets.
    Our analysis of the record evidence regarding the distribution 
systems in the foreign market and the United States (including selling 
functions, class of customer, and the extent and level of selling 
expenses for each claimed LOT) does not reveal sufficient differences 
to justify a LOT adjustment. While SKWP claims to sell to different 
classes of customers in its home market, our analysis of the chain of 
distribution and selling functions associated with these sales did not 
confirm the existence of two or more stages of marketing in the home 
market. Moreover, at verification, we confirmed that the selling 
functions associated with SKWP's home market sales were not materially 
different from the selling functions performed in connection with its 
U.S. sale.

Arm's-Length Sales

    Sales to affiliated customers in the home market not made at arm's 
length were excluded from our analysis. To test whether these sales 
were made at arm's length, we compared the starting prices of sales to 
affiliated and unaffiliated customers, net of all movement charges, 
direct selling expenses, discounts and packing. Where the price to the 
affiliated party was on average 99.5 percent or more of the price to 
the unaffiliated party, we determined that the sales made to the 
affiliated party were at arm's length.

Cost of Production Analysis

    Petitioners alleged on December 11, 1996, that SKWP sold solid urea 
in the home market at prices below the cost of production (COP). Based 
on these allegations, the Department determined, for the reasons stated 
in its initiation memo dated January 3, 1997, that it had reasonable 
grounds to believe or suspect that SKWP had sold the subject 
merchandise in the home market at prices below the COP. Therefore, 
pursuant to section 773(b)(1) of the Act, we initiated a COP 
investigation in order to determine whether SKWP made home market sales 
during the POR at prices below its COP.
    In accordance with section 773(b)(3) of the Act, we calculated an 
average monthly COP based on the sum of the costs of materials and 
fabrication employed in producing the foreign like product plus 
selling, general and administrative (SG&A) expenses and all costs and 
expenses incidental to placing the foreign like product in condition 
ready for shipment. In our COP analysis, we used the home market sales 
and COP information provided by the respondent in its questionnaire 
responses.
    After calculating an average monthly COP, we tested whether home 
market sales of solid urea were made at prices below COP within an 
extended period of time in substantial quantities and whether such 
prices permit recovery of all costs within a reasonable period of time. 
We compared model-specific average COP to the reported home market 
prices less any applicable movement charges, discounts, and rebates. In 
determining whether to disregard home market sales made at prices below 
the average COP, we examined (1) whether, within an extended period of 
time, such sales were made in substantial quantities, and (2) whether 
such sales were made at prices which permitted the recovery of all 
costs within a reasonable period of time in the normal course of trade.
    After conducting our analysis, the Department determined that less 
than one percent of all home market sales were sold below cost, 
therefore, pursuant to section 773(b)(2)(C) of the Act, where less than 
20 percent of the respondent's sales of a given product were at prices 
less than COP, we did not disregard any below-cost sales of the product 
because the below-cost sales were not made in substantial quantities.

Currency Conversion

    The Department's preferred source for daily exchange rates is the 
Federal Reserve Bank. For purposes of the preliminary results, we made 
currency conversions based on the official exchange rates in effect on 
the date of the U.S. sale as certified by the Federal Reserve Bank of 
New York pursuant to section 773A(a) of the Act.
    Section 773A(a) directs the Department to use a daily exchange rate 
in order to convert foreign currencies into U.S. dollars, ignoring any 
``fluctuations.'' We determine that a fluctuation exists when the daily 
exchange rate differs from a benchmark rate by 2.25 percent or more. 
The benchmark rate is defined as the rolling average of the rates for 
the past 40 business days as reported by the Federal Reserve Bank of 
New York. When we determined that a fluctuation existed, we substituted 
the benchmark rate for the daily rate. For a complete discussion of the 
Department's exchange rate methodology, see ``Change in Policy 
Regarding Currency Conversions'' (61 FR 9434, March 8, 1996).

Preliminary Results of Review

    As a result of our review, we preliminarily determine the dumping 
margin for SKWP for the period July 1, 1995 through June 30, 1996 to be 
0.00 percent.
    Parties to the proceeding may request disclosure within five days 
of the date of publication of this notice. Any interested party may 
request a hearing within 10 days of publication. Any hearing, if 
requested, will be held 44 days after the date of publication or the 
first business day thereafter. Case briefs and/or other written 
comments from interested parties may be submitted not later than 30 
days after the date of publication. Rebuttal briefs and rebuttals to 
written comments, limited to issues raised in those comments, may be 
filed not later than 37 days after the date of publication of this 
notice. The Department will issue its final results of

[[Page 36495]]

this administrative review, including its analysis of issues raised in 
any written comments or at a hearing, not later than 120 days after the 
date of publication of this notice.
    Upon completion of this review, the Department shall determine, and 
the Customs Service shall assess, antidumping duties on all appropriate 
entries. The Department will issue appropriate appraisement 
instructions directly to the Customs Service upon completion of this 
review.
    Furthermore, the following deposit requirements will be effective 
for all shipments of the subject merchandise entered, or withdrawn from 
warehouse, for consumption on or after the publication date of the 
final results of review, as provided by section 751(a)(1) of the Tariff 
Act: (1) The cash deposit rate for the reviewed company will be the 
rate determined in the final results of review; (2) for previously 
reviewed or investigated companies not mentioned 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 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 
be 44.80 percent, as explained below.
    On May 25, 1993, the CIT in Floral Trade Council v. United States, 
822 F. Supp. 766 (CIT 1993), and Federal-Mogul v. United States, 839 F. 
Supp. 864 (CIT 1993), determined that once an ``all others'' rate is 
established for a company, it can only be changed through an 
administrative review. Therefore, the ``all others'' rate for this 
order will be 44.80 percent, which was the ``all others'' rate 
established in the final notice of the LTFV investigation by the 
Department (52 FR 19549, 19552). These deposit requirements, when 
imposed, shall remain in effect until publication of the final results 
of the next administrative review.
    This notice also serves as a preliminary reminder to importers of 
their responsibility under 19 CFR 353.26 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 double antidumping duties.
    This administrative review and notice are in accordance with the 
Tariff Act (19 U.S.C. 1675(a)(1)) and 19 CFR 353.22.

    Dated June 25, 1997.
Robert S. LaRussa,
Acting Assistant Secretary for Import Administration.
[FR Doc. 97-17726 Filed 7-7-97; 8:45 am]
BILLING CODE 3510-DS-P