[Federal Register Volume 66, Number 143 (Wednesday, July 25, 2001)]
[Notices]
[Pages 38632-38635]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-18566]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-823-810]


Notice of Final Determination of Sales At Less Than Fair Value: 
Solid Agricultural Grade Ammonium Nitrate From Ukraine

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

ACTION: Notice of final determination of sales at less than fair value.

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SUMMARY: The Department of Commerce is conducting an antidumping duty 
investigation of solid agricultural grade ammonium nitrate from 
Ukraine. We determine that sales have been made at less than fair 
value. The dumping margin for J.S.C. ``Concern'' Stirol is 156.29 
percent. The Ukraine-wide rate, which is applicable to all other 
producers/exporters, including the non-responding company, Open Joint 
Stock Company ``AZOT'' Cherkassy, is 156.29 percent.

EFFECTIVE DATE: July 25, 2001.

FOR FURTHER INFORMATION CONTACT: Jarrod Goldfeder, Melani Miller, or 
Anthony Grasso, Import Administration, International Trade 
Administration, U.S. Department of Commerce, 14th Street and 
Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-
0189, (202) 482-0116, or (202) 482-3853, respectively.

SUPPLEMENTARY INFORMATION:

The Applicable Statute and Regulations

    Unless otherwise indicated, all citations to the Tariff Act of 
1930, as 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).

Case History

    Since the publication of the preliminary determination in this 
investigation (see Notice of Preliminary Determination of Sales at Less 
Than Fair Value and Postponement of Final Determination: Solid 
Agricultural Grade Ammonium Nitrate from Ukraine, 66 FR 13286 (March 5, 
2001) (``Preliminary Determination'')), the following events have 
occurred:
    On March 5, 2001, the petitioner in this investigation (the 
Committee for Fair Ammonium Nitrate Trade) alleged certain errors in 
the preliminary determination. We responded to this allegation on March 
16, 2001. See March 16, 2001 memorandum to Richard W. Moreland, Deputy 
Assistant Secretary, entitled ``Ministerial Error Allegations for 
Preliminary Determination,'' which is on file in the Import 
Administration's Central Records Unit (``CRU''), Room B-099 of the main 
Department of Commerce building.
    In March 2001, we conducted a verification of the questionnaire 
responses submitted by J.S.C.

[[Page 38633]]

``Concern'' Stirol (``Stirol''). We issued the verification report in 
April 2001.
    Also in March 2001, the Government of Ukraine (``GOU'') submitted a 
draft proposal for an agreement suspending the Department's 
investigation pursuant to section 734 of the Act. Consultations were 
held between the Department and the GOU in Washington, DC in June of 
2001. No agreement to suspend the investigation was reached.
    Supplemental information regarding surrogate values was submitted 
by Stirol and the petitioner on April 20 and April 23, 2001.
    The petitioner and Stirol filed case and rebuttal briefs, 
respectively, on April 26 and May 1, 2001. The petitioner also 
submitted a request on May 3, 2001, to strike certain alleged new and 
untimely information from Stirol's rebuttal brief. The Department did 
not strike this information because it determined that the information 
was neither new nor untimely.
    No other interested parties to this investigation have submitted 
any additional information or argument since the Preliminary 
Determination.

Scope of the Investigation

    For purposes of this investigation, the products covered are solid, 
fertilizer grade ammonium nitrate (``ammonium nitrate'' or ``subject 
merchandise'') 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 (``Customs''), the written description of the 
merchandise under investigation is dispositive.

Period of Investigation

    The period of investigation (``POI'') for this investigation is 
April 1, 2000 through September 30, 2000.

Nonmarket Economy Country

    The Department has treated Ukraine as a nonmarket economy (``NME'') 
country in all past antidumping investigations. See, e.g., Notice of 
Final Determinations of Sales at Less Than Fair Value: Steel Concrete 
Reinforcing Bars from Indonesia, Poland and Ukraine, 66 FR 18752 (April 
11, 2001); 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). Under section 771(18)(C) of the Act, this 
NME designation remains in effect until it is revoked by the 
Department.
    No party in this investigation has formally requested a revocation 
of Ukraine's NME status, and no further information has been provided 
that would lead to such a revocation. See also ``Issues and Decision 
Memorandum'' from Richard W. Moreland, Deputy Assistant Secretary, 
Import Administration, to Faryar Shirzad, Assistant Secretary for 
Import Administration, dated July 18, 2001, Comment 11 (``Decision 
Memorandum'') (which is on file in the Department's CRU). Therefore, we 
have continued to treat Ukraine as an NME in this investigation.

Separate Rates

    Stirol has requested a separate, company-specific antidumping duty 
rate. (As explained in the Preliminary Determination, although Open 
Joint Stock Company ``AZOT'' Cherkassy also submitted information 
relating to separate rates, that information was incomplete.) In our 
Preliminary Determination, we preliminarily found that Stirol had met 
the criteria for the application of separate antidumping duty rates. 
See 66 FR 13286, 13288-13289. At verification, we found no 
discrepancies with the separate rates information provided in Stirol's 
questionnaire responses. We have not received any other information 
since the Preliminary Determination which would warrant reconsideration 
of our separate rate determination with respect to Stirol. We, 
therefore, determine that Stirol should be assigned an individual 
dumping margin.

Ukraine-Wide Rate

    The 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''). As stated in the Preliminary 
Determination, 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 Ukrainian producers/exporters of ammonium nitrate 
other than Stirol failed to respond to our questionnaire, we presume 
that all other NME producers/exporters do not act independently from 
the government in their export activities and, therefore, are not 
eligible for separate rates. Accordingly, we are applying a single 
antidumping deposit rate (``the Ukraine-wide rate'') to all ammonium 
nitrate exporters in Ukraine except for Stirol.

Use of Facts Available

Stirol

    As discussed in the Decision Memo, at Comment 2, and explained 
below in the Normal Value section, in certain instances we used partial 
facts available for Stirol in calculating a final determination margin.

Ukraine-Wide Rate

    As explained in the Preliminary Determination, the Ukraine-wide 
antidumping rate is based on adverse facts available, in accordance 
with section 776 of the Act.
    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 (Department) 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 (Department) 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--(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.'' Use of facts available is warranted in this case 
because all producers/exporters other than Stirol have failed to 
respond or provide a complete response to the Department's 
questionnaire.

[[Page 38634]]

    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. Certain producers/exporters, other than Stirol, decided 
not to respond or provide a complete response to the Department's 
questionnaire. On this basis the Department determined that they failed 
to cooperate by not acting to the best of their abilities in this 
investigation. Further, given Ukraine's status as a NME, absent a 
verifiable response from these firms, we must presume government 
control of these Ukrainian companies. Thus, the Department has 
determined that, in selecting from among the facts otherwise available, 
an adverse inference is warranted and has assigned them a common, 
Ukraine-wide rate based on adverse inferences.
    In accordance with our standard practice, as adverse facts 
available, we are assigning to the Ukraine-wide entity (i.e., those 
companies not receiving a separate rate), which did not cooperate in 
the investigation, the higher of: (1) The highest margin stated in the 
notice of initiation; or (2) the highest margin calculated for any 
respondent in this 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)). As noted in the 
Preliminary Determination, the rate from the petition, as recalculated 
by the Department at the time of initiation of this investigation, is 
257 percent. See Initiation of Antidumping Duty Investigation: Solid 
Agricultural Grade Ammonium Nitrate from Ukraine, 65 FR 66966 (November 
8, 2000).
    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 for the final determination, as we 
did for in the Preliminary Determination, we examined evidence 
supporting the calculations in the petition. The methodology we used to 
determine the probative value of this information was explained in the 
Preliminary Determination and in the Department's February 23, 2001, 
memorandum to the Deputy Assistant Secretary, ``Preliminary 
Determination Adverse Facts Available Rate'' (``Corroboration Memo''), 
which is on file in the Department's CRU. As noted in the Corroboration 
Memo, we recalculated the petition margin to 67.20 percent.
    Using the methodology discussed in the Preliminary Determination 
and the Corroboration Memo, we found that the margin calculated for 
Stirol for the final determination, 156.29 percent, continues to be the 
highest margin on the record of this case. 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 determined the Ukraine-wide rate to be 156.29 
percent.

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 export price (``EP'') to normal value (``NV''). Our 
calculations followed the methodologies described in the Preliminary 
Determination, except as noted below and in Stirol's calculation 
memorandum dated July 18, 2001, which is on file in the Department's 
CRU.

Export Price and Constructed Export Price

    For Stirol's price to the United States, 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 
the same methodology as in the Preliminary Determination.

Normal Value

1. Surrogate Country

    Section 773(c)(4) of the Act requires the Department to value an 
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, which is on file in the 
Department's CRU).
    We selected Indonesia as our surrogate country for the Preliminary 
Determination and since that time we have not received any other 
information which would warrant reconsideration of that selection. 
Thus, we have continued to rely on Indonesia as our primary surrogate 
country for the final determination. As we noted in the Preliminary 
Determination, when Indonesian values were not available or were 
determined to be aberrational, we used Indian values. No parties 
commented on the use of the Indian values.

2. Factors of Production and Surrogate Values

    In our calculation of NV, we have used the same factors of 
production and the same surrogate values as in the Preliminary 
Determination, with the following exceptions:
    We revised the calculation of our Energy Prices & Taxes natural gas 
value. See Decision Memo, at Comment 3. We made adjustments to our 
calculation of overhead and selling, general, and administrative 
expenses. See Decision Memo, at Comment 5. We valued water as a direct 
energy input using surrogate values based on information from the Asian 
Development Bank. See Decision Memo, at Comment 2. We valued certain 
catalysts purchased from market-economy suppliers using verified market 
economy prices; for other catalysts determined not to have been 
purchased from a market-economy supplier, we used surrogate values. See 
Decision Memo, at Comment 2.
    We also made adjustments to the reported factors of production for 
one of the catalysts, denatured alcohol, and natural gas energy based 
on the Department's verification findings. See Decision Memo, at 
Comments 7, 8, and 10, respectively. Moreover, because we find that the 
indirect labor factor of production information reported by Stirol is 
unreliable, as partial facts available, we are using the indirect labor 
factor reported in the petition. See Decision Memo, at Comment 2.
    Finally, we valued electricity using 1999 data for Indonesia. See 
Decision Memo, at Comment 9. We also corrected our calculation of the 
electricity factor based on the clerical error allegation made by the 
petitioner following the Preliminary Determination. See Decision Memo, 
at Comment 2. (See also Memorandum from Team to Richard W.

[[Page 38635]]

Moreland, ``Ministerial Error Allegations for Preliminary 
Determination,'' dated March 16, 2001, which is on file in the 
Department's CRU.)

Critical Circumstances

    In the Preliminary Determination, the Department issued its 
preliminary determination that critical circumstances exist for both 
Stirol and the Ukraine-wide entity. As discussed in the Preliminary 
Determination, our decision was based on the analysis of shipment data 
submitted by Stirol and available import statistics, as well as the 
history of injurious dumping of ammonium nitrate from Ukraine. The 
existence of an antidumping duty order in the European Community on 
ammonium nitrate from Ukraine is sufficient evidence of a history of 
injurious dumping. Moreover, as discussed in the Preliminary 
Determination, there is record evidence to support a finding of massive 
imports over a relatively short period of time. We have not received 
any other information since the Preliminary Determination which would 
warrant reconsideration of our critical circumstances determination. 
Therefore, we continue to find that critical circumstances exist with 
respect Stirol and the Ukraine-wide entity.

Verification

    As provided in section 782(i) of the Act, we verified the 
information submitted by Stirol for use in our final determination. We 
used standard verification procedures including examination of relevant 
accounting and production records, and original source documents 
provided by respondents.

Analysis of Comments Received

    All issues raised in the case and rebuttal briefs by parties to 
this investigation are addressed in the July 18, 2001, Decision 
Memorandum which is hereby adopted by this notice. Attached to this 
notice as an appendix is a list of the issues which parties have raised 
and to which we have responded in the Decision Memorandum. Parties can 
find a complete discussion of all issues raised in this investigation 
and the corresponding recommendations in this public memorandum which 
is on file in the Department's CRU. In addition, a complete version of 
the Decision Memorandum can be accessed directly on the Web at http://ia.ita.doc.gov/frn/frnhome.htm. The paper copy and electronic version 
of the Decision Memorandum are identical in content.

Continuation of Suspension of Liquidation

    In accordance with section 735(c) of the Act, we are directing 
Customs to continue to suspend liquidation of all imports of the 
subject merchandise from Ukraine entered, or withdrawn from warehouse, 
for consumption on or after March 5, 2001, the date of publication of 
the Preliminary Determination in the Federal Register. In addition, we 
are directing Customs to continue to suspend liquidation of any 
unliquidated entries of subject merchandise entered, or withdrawn from 
warehouse, for consumption on or after December 5, 2000, the date 90 
days prior to the date of publication of the Preliminary Determination 
in the Federal Register, in accordance with our critical circumstances 
finding.
    Customs shall continue to require a cash deposit or the posting of 
a bond equal to the weighted-average 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.
    The weighted-average dumping margins are as follows:

------------------------------------------------------------------------
                                                              Weighted-
                                                               average
                   Exporter/manufacturer                        margin
                                                              percentage
------------------------------------------------------------------------
J.S.C. ``Concern'' Stirol..................................       156.29
Ukraine-wide rate..........................................       156.29
------------------------------------------------------------------------

    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 735(d) of the Act, we have notified the 
ITC of our determination. As our final determination is affirmative, 
the ITC will, within 45 days, determine whether these imports are 
materially injuring, or threaten material injury to, the U.S. industry. 
If the ITC determines that material injury, or threat of material 
injury does not exist, the proceeding will be terminated and all 
securities posted will be refunded or canceled. If the ITC determines 
that such injury does exist, the Department will issue an antidumping 
duty order directing Customs officials to assess antidumping duties on 
all imports of the subject merchandise entered for consumption on or 
after the effective date of the suspension of liquidation.
    This notice also serves as a reminder to parties subject to 
administrative protective order (``APO'') of their responsibility 
concerning the disposition of proprietary information disclosed under 
APO in accordance with 19 CFR 351.305. Timely notification of return or 
destruction of APO materials, or conversion to judicial protective 
order, is hereby requested. Failure to comply with the regulations and 
the terms of an APO is a sanctionable violation.
    This determination is issued and published in accordance with 
sections 735(d) and 777 (i)(1) of the Act.

    Dated: July 18, 2001.
Faryar Shirzad,
Assistant Secretary for Import Administration.

Appendix

List of Comments in the Issues and Decision Memorandum

Comment 1: Application of Adverse Facts Available
Comment 2: Application of Partial Facts Available
Comment 3: Valuation of Natural Gas
Comment 4: Source of Financial Data for Surrogate Financial Ratios
Comment 5: Valuation of Overhead and SG&A
Comment 6: Valuation of Catalysts, Belting, Tosol, and Denatured 
Alcohol
Comment 7: Revision of Catalyst Usage
Comment 8: Revision of Denatured Alcohol Usage
Comment 9: Electricity Factor
Comment 10: Revision of Natural Gas Consumed as an Energy Input
Comment 11: Separate Rates

[FR Doc. 01-18566 Filed 7-24-01; 8:45 am]
BILLING CODE 3510-DS-P