[Federal Register Volume 63, Number 29 (Thursday, February 12, 1998)] [Notices] [Pages 7122-7125] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 98-3486] ----------------------------------------------------------------------- DEPARTMENT OF COMMERCE International Trade Administration [A-429-601] Solid Urea From the Former German Democratic Republic; Final Results of Changed Circumstances Review AGENCY: Import Administration, International Trade Administration, Department of Commerce. ACTION: Notice of final results of changed circumstances review. ----------------------------------------------------------------------- SUMMARY: On May 1, 1995, the Department of Commerce published the preliminary results of its changed circumstances review to examine the effect, if any, that the reunification of Germany had on the antidumping duty order covering solid urea from the five German states (Brandenburg, Mecklenburg-Vorpommern, Saxony, Saxony-Anhalt, and Thuringia (plus any other territory; hereinafter the ``Five States'') that formerly constituted the German Democratic Republic (GDR) (60 FR 21067). We have now completed this review and have not changed our determination from the preliminary results. EFFECTIVE DATE: February 12, 1998. FOR FURTHER INFORMATION CONTACT: Steven D. Presing and Nithya Nagarajan at (202) 482-3793, Office of AD/ CVD Enforcement, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th and Constitution Avenue, NW., Washington, DC 20230. SUPPLEMENTARY INFORMATION: Applicable Statute and Regulations Unless otherwise indicated, all citations to the statute and to the Department's regulations are references to the provisions as they existed on December 31, 1994. Background On May 1, 1995, the Department of Commerce published the preliminary results of this review. On November 17, 1997, the Department of Commerce published the final results of an administrative review of the order on solid urea from the Five States pursuant to section 751(a) of the Tariff Act of 1930, as amended (the Act). The review covered one manufacturer/ exporter, SKW Stickstoffwerke Piesteritz GmbH (SKWP), and the period July 1, 1995 through June 30, 1996. As a result of that review, the Department instructed Customs to establish a new cash deposit rate for SKWP of 0.00 percent. Also as a result of that review, the Department instructed Customs to terminate suspension of liquidation for shipments of solid urea produced by firms located outside the Five States. We have now completed the instant changed circumstances review and have not changed our determination from the preliminary results. Scope of the Review Importers 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 number 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 remains dispositive. Analysis of Comments Received We received comments from the German Government, the Ad Hoc Committee of Domestic Nitrogen Producers (the ``Petitioner''), and SKW (on behalf of SKW Trostberg AG, SKWP, and SKW Chemicals, Inc.). We received rebuttal comments from the Petitioner, SKW, and Hydro Agri Brunsbuttel GmbH (``Hydro Agri''). We conducted a hearing attended by all parties on June 14, 1995. Comment 1: The German Government believes that the Department should immediately revoke the antidumping duty order on urea, arguing that the Department's preliminary determination ignores the de jure and de facto integration of the Five States into the unified FRG and the integration of companies located in the Five States into the unified FRG's market economy. The German Government states that it is unacceptable that privatized German companies are still being judged by the behavior of their predecessors. SKW agrees with the German Government and argues that the ``fundamental and irreversible'' changes which have taken place as a result of reunification constitute changed circumstances which justify revocation of the order pursuant to the Department's regulations and section 751(c) of Act (19 U.S.C. 1675(c)(1988)). Petitioner objects to revocation of the order on this basis contending that 1) that there is no evidence on the record of this proceeding which establishes when, if ever, the Five States ceased to operate as a non-market economy within the meaning of section 771(18) of the Act (19 U.S.C. Sec. 1677(18)(1988)); 2) a change in economic status does not provide a basis for revoking the order; 3) revocation of the order based upon the change in political borders would deprive if of the relief from unfairly traded imports that it sought and obtained, a principle, petitioner asserts, upheld by the Court of International Trade in Techsnabexport, Ltd. v. United States, 802 F. Supp. 469, 472 (CIT 1992) and 4) this changed circumstances review was initiated only to examine the applicability of the order to post- unification shipments of the subject merchandise from producers located outside the Five States--not whether the order should be revoked. Department's Position: As in the Federal Register on May 1, 1995, the Department determined that ``as of October 3, 1990, producers located in [[Page 7123]] the five German states that formerly constituted the GDR have been operating in a market-oriented economy.'' See Initiation of Changed Circumstances Antidumping Duty Administrative Review, 83 Fed. Reg. 21067, 21068 (1995), citing Final Affirmative Countervailing Duty Determinations; Certain Steel Products from Germany, 58 FR 37315, 37324 (1993). However, it is settled Department practice that a change in economic structure does not, by itself, justify revocation of an antidumping order. See, e.g., Antidumping Duty Order and Initiation of Changed Circumstances Antidumping Duty Administrative Review; Certain Cut-to-Length Carbon Steel Plate From Poland, 58 Fed. Reg. 44166, 44166 (Aug. 19, 1993). As the court in the Techsnabexport case held, such matters are properly the subject of an administrative review under section 751 of the Act. 802F. Supp. at 472. This position renders moot Petitioner's argument that there is no evidence on the record of this proceeding which demonstrates the conversion from non-market to market economy. Second, U.S. antidumping law does not require revocation of an order where the country covered by the order undergoes a change in geo- political boundaries. The focus of the law is on merchandise. See Postponement of Preliminary Antidumping Duty Determination: Uranium from the Former Union of Soviet Socialist Republics (USSR), 57 Fed. Reg. 11064 (1992) (incorporating by reference, memorandum from F. Sailer to A. Dunn dated March 24, 1992). See also Jia Farm Manufacturing Co., Ltd. v. United States, 817 F. Supp. 969, 973 (CIT 1993). The governing principle in cases involving changes in the political borders of respondent countries is that such changes do not affect the geographic scope of an antidumping measure. This principle comports with the holding in Techsnabexport, where the Department determined that the breakup of the Soviet Union did not justify the termination of the then-pending investigation of uranium. In that case, the Department determined that the correct approach in situations where countries under an antidumping duty order or investigation undergo changes in geo-political boundaries is to preserve, notwithstanding the change, the original geographic scope of the order or investigation. Comment 2: SKW argues that the order must be revoked pursuant to section 353.25(d)(4)9iii) of the Department's regulations because the Petitioner did not file a formal objection to revocation of the order after five years had passed without a request for an administrative review, citing Kemira Fibres Oy v. United States, 861 F. Supp. 144 (CIT 1994) Petitioner disagrees, contending that the Kemira Fibers case, which involved an extremely inactive domestic industry, is at the very least distinguishable from this case because in this case petitioners have filed numerous submissions with the Department over the relevant five year period expressing either support for the order or opposition to its revocation. Petitioner also maintains that Kemira Fibers was wrongly decided arguing that an essential prerequisite to revocation under section 353.25(d)(4) is notice and comment. Petitioner asserts that no such notification was ever provided in this case and that as a result the Department lacks the authority to revoke. Petitioner concludes by noting that the Department has appealed the holding in Kemira Fibers, and it is the Department's usual practice not to follow adverse decisions that may be reversed on appeal. Department's Position: The Court of Appeals for the Federal Circuit has overturned the decision in Kemira Fibers. Kemira Fibres Oy v. United States, 61 F.3d 866, 875 (Fed. Cir. 1995) (``Revocation must be predicated on a lack of domestic industry interest and such interest must be ascertained through notification of an intent to revoke.'') Therefore, the fact that the Department never indicated an intent to revoke pursuant to section 353.25(d)(4) of its regulations, precludes revocation on the grounds advanced by SKW. Comment 3: SKW argues that under the Act and its legislative history the Department is without authority to maintain an order on any geo-political entity other than a country. SKW argues that the maintenance of a province- or region-specific order would be an unjustifiable departure from the Department's practice. It further argues that additional support for its position is found in Article VI of the 1947 GATT which defines dumping as the introduction of products from ``one country'' into the commerce of ``another country'' at less than their normal value. Finally, SKW argues that the Techsnabexport case does not support the Department's preliminary determination to maintain the antidumping duty order on imports from the Five States because Techsnabexport involved the dissolution of a country (the Soviet Union) and whether a pending antidumping investigation could proceed against the twelve countries that succeeded it. Here, SKW submits, the question is whether changed circumstances warrant the revocation of an antidumping order covering a non-market country that has ceased to exist due to its complete unification with and assimilation into a market economy country. Furthermore, SKW argues, Techsnabexport did not embrace province- or region-specific orders but rather expressly stated that antidumping orders must address merchandise from particular countries. Citing section 771(3) of the Act, Petitioner argues that neither the 1947 GATT nor U.S. law preclude the maintenance of an antidumping duty order on less than a country-wide basis. Petitioner also cites Certain Softwood Lumber from Canada as an example of at least one proceeding under Title VII which did not apply to merchandise on a country-wide basis. 57 FR 22570, 22623 (1992). Petitioner further contends that a province- or region-specific order is supported by the holding and rationale of the Techsnabexport case. 802 F. Supp. 469. The principal issue in both cases, petitioner argues, is what effect, if any, political changes in a geographic region subject to an antidumping proceeding have upon that proceeding. The holding of the court in the Techsnabexport case is that antidumping proceedings need not be extinguished as a result of shifting geo-political borders or changes in governments. Petitioner also argues that SKW is mistaken when it claims that the Techsnabexport decision supports the proposition that an antidumping order must always apply to merchandise from a particular country. According to Petitioner, the definition of ``country'' under the statute was never at issue in the Techsnabexport case. Hydro Agri agrees that the Department has the legal authority to maintain the subject order on the Five States. Department's Position: The issue in this case is whether the Department, once having issued a country-wide order, must revoke that order if the country covered by the order undergoes a change in geo- political boundaries or whether the Department may maintain the order on the same merchandise from the same geographic region as before the change occurred. As state above, in response to Comment No. 1, nothing in U.S. antidumping law requires revocation of an order where the country covered by the order undergoes a change in geo-political boundaries. Rather, the correct approach in such situations is to preserve, notwithstanding the change in [[Page 7124]] government and political borders, the geographic region (and by extension the producers) subject to the order. We believe this position in consistent with U.S. antidumping law and our international obligations and note again that this principle has been upheld by the Courts in Techsnabexport, 802 F. Supp. at 472. Comment 4: Petitioner argues that the order should be applied to urea produced throughout Germany, contending that extension of the order is consistent with the 1947 GATT, which does not require an injury determination to be based upon an examination of all exports from an exporting country, and is consistent with U.S. law. Petitioner notes that the Department normally analyzes only 60 percent of all sales in a LTFV investigation. Petitioner further contends that in Pure and Alloy Magnesium from Canada, the Department made an affirmative LTFV determination with respect to exports from the province of Quebec, but applied the order to all of Canada. 57 FR 30939 (1992). Lastly, Petitioner claims that extending the order to all urea producers in Germany is necessary, as a practical matter, in order to preserve the integrity of the order and prevent the potential transshipment of urea. SKW opposes extension of the order to all urea produced in Germany, arguing that under U.S. law such action would violate the due process rights of producers located outside the Five States since neither the Department nor the International Trade Commission (ITC) has investigated these producers. SKW also argues that this action would violate the 1947 GATT, which states that an investigation must be conducted before levying duties. SKW asserts that applying the results of an investigation covering part of an industry to an entire industry in a country, does not justify extending an order on one country to another country. Finally, SKW argues that Petitioner's discussion of circumvention is unfounded. Hydro Agri also objects to extension of the order, arguing that extension would deprive Hydro Agri of its due process rights. According to Hydro Agri, Petitioner's concerns about circumvention are baseless. Department Position: It would be contrary to the 1947 GATT and U.S. law for the Department to expand the geographic scope of the order on urea to include shipments from all of Germany. First, this result would be inconsistent with the principle, affirmed in the Techsnabexport case, that changes in the political borders of respondent countries do not affect the geographic scope of antidumping measures. 802 F. Supp. at 472. Second, both the 1947 GATT and U.S. law prohibit the assessment of antidumping duties in the absence of injury and LTFV determinations. Jackson, World Trade And The Law of GATT, 412-24 (1969); see also 19 U.S.C. 1673 (1988). Neither the Department nor the ITC has ever investigated imports of solid urea from the pre-unification territory of the FRG. See SCM Corp. v. United States, 473 F. Supp. 791, 793 (Cust. Ct. 1979) (antidumping duties may not be imposed or an order maintained without affirmative injury and LTFV determinations). Third, since the original investigation was limited to urea from the Five States, producers outside the Five States did not satisfy the definition of ``interested parties'' eligible to participate in the investigations at the Department and the ITC. See 19 U.S.C. 1677(9) (1988); 19 CFR 353.2(k). Given that they were not (and could not have been) parties to the original investigation, they received no formal notice or opportunity to comment, either during the LTFV or injury investigation. They also lacked standing to appeal the final results of these proceedings. See 19 U.S.C. 1516a(d) (1988). These procedural safeguards are an essential aspect of every antidumping order. See, e.g., Smith Corona Corp. v. United States, 796 F. Supp. 1532, 1535 (CIT 1992) (``[v]arious procedural safeguards such as opportunity to respond and to be heard are built into the unfair trade laws''). Comment 5: Petitioner argues that the administration of a bifurcated order will require additional measures (i.e., monitoring and special Customs requirements) to ensure adequate consideration of administrative and enforcement issues. SKW argues that the Department should disregard Petitioner's discussion of circumvention as irrelevant and unsupported. Hydro Agri argues that special Customs requirements are unnecessary, unduly burdensome and arbitrary, and that until there is real evidence that circumvention is even being contemplated, additional administrative burdens are unreasonable. Department's Position: The record of this proceeding lacks adequate grounds upon which to require special administrative procedures in connection with this order. Comment 6: SKW argues that if the Department does not revoke this order, it should reduce the cash deposit rate to zero percent, citing as precedent Color Televisions from Korea. See Color Television Receivers from Korea, 49 FR 18336 (1984); Gold Star Co., Ltd. v. United States, 692 F. Supp. 1382, 1382 (CIT 1988). Petitioner argues that reducing the cash deposit to zero would be contrary to law and claims that SKW's reliance on Television from Korea is misplaced. Department's Position: This comment is moot. As noted in the ``Background'' section of this notice, as a result of the final results of a recent administrative review, SKWP's cash deposit rate was lowered to 0.00 percent. Comment 7: Petitioner argues that before conducting a market- economy analysis the Department must first determine which post- unification shipments are eligible for such analysis. SKW argues that the Department should use a market-economy analysis for all post-reunification shipments. Department Position: These issues are not relevant to this proceeding. These final results concern the order's applicability to post-unification shipments of subject merchandise, not the appropriate economic analysis to be applied to such shipments. Final Results The Department determines to maintain the order on solid urea from the Five States and to allow entry of shipments from producers located outside the Five States without regard to antidumping duties. 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 the publication date of these final results of changed circumstances review, as provided for by section 751(b) of the Act. A cash deposit of estimated antidumping duties shall be required on shipments of the subject merchandise as follows: (1) The existing 0.00 percent cash deposit rate will remain in effect, pending further instructions, for shipments of solid urea produced by SKWP; (2) the existing 44.80 percent cash deposit rate will remain in effect, pending further instructions, for shipments of solid urea produced by all other firms located in the Five States; and (3) no cash deposit will be required for shipments of solid urea produced by firms located outside the Five States. This changed circumstances review and notice are in accordance with section 752(b) of the Act (19 U.S.C. Sec. 1675(b) (1988)) and 19 CFR 353.22(f). [[Page 7125]] Dated: January 23, 1998. Robert S. LaRussa, Assistant Secretary for Import Administration. [FR Doc. 98-3486 Filed 2-11-98; 8:45 am] BILLING CODE 3510-DS-M