[Federal Register Volume 67, Number 151 (Tuesday, August 6, 2002)]
[Notices]
[Pages 50863-50865]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-19824]



[[Page 50863]]

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DEPARTMENT OF COMMERCE

International Trade Administration

[A-507-502]


Certain In-Shell Raw Pistachios from Iran: Preliminary Results of 
Antidumping Duty New Shipper Review

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

ACTION: Notice of Preliminary Results of Antidumping Duty New Shipper 
Review of Certain In-Shell Raw Pistachios from Iran.

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SUMMARY: In response to a request from Tehran Negah Nima Trading 
Company, Inc., (Nima), the Department of Commerce (Department) is 
conducting a new shipper review of the antidumping duty order on 
certain in-shell raw pistachios from Iran. This new shipper review 
covers imports of subject merchandise from Nima. The period of review 
is July 1, 2000, through June 30, 2001. The Department preliminarily 
determines that Nima has made sales of subject merchandise to the 
United States below normal value. If these preliminary results are 
adopted in our final results of this new shipper review, we will 
instruct the U.S. Customs Service to liquidate entries during the 
period of review. The Department shall determine, and the Customs 
Service shall assess, antidumping duties on all appropriate entries. 
The Department will issue appraisement instructions directly to the 
Customs Service. Interested parties are invited to comment on these 
preliminary results. See Preliminary Results of the Review section, 
infra. Parties who submit comments are requested to submit with the 
argument: (1) a statement of the issues and (2) a brief summary of the 
arguments.

EFFECTIVE DATE: August 6, 2002.

FOR FURTHER INFORMATION CONTACT: Phyllis Hall or Donna Kinsella, Import 
Administration, International Trade Administration, U.S. Department of 
Commerce, 1401 Constitution Avenue, NW., Washington, DC 20230; 
telephone: 202-482-1398 or 202-482-0194, respectively.

SUPPLEMENTARY INFORMATION:

The Applicable Statute

    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, as amended (the 
Act) by the Uruguay Round Agreements Act (URAA). In addition, unless 
otherwise indicated, all citations to the Department's regulations are 
references to the provisions codified at 19 CFR Part 351 (2001).

Background

    On July 17, 1986, the Department published in the Federal Register 
a notice of the antidumping duty order on certain in-shell pistachios 
from Iran. See Antidumping Duty Order; Certain In-Shell Pistachios from 
Iran, 51 FR 25922 (July 17, 1986). On July 31, 2001, Tehran Negah Nima 
Trading Company, Inc., an exporter of subject merchandise during the 
period of review (POR), requested that the Department conduct a new 
shipper review of the antidumping duty order. We initiated the review 
on October 10, 2001 (66 FR 51638). On October 11, 2001, the Department 
issued the antidumping questionnaire. On November 15, 2001, the 
respondent submitted section A of the questionnaire. On December 10, 
2001, the respondent submitted sections B-C of the questionnaire. On 
January 25, 2002, the Department issued the first supplemental 
questionnaire. On March 20, 2002, the Department issued a second 
supplemental questionnaire. On May 3, 2002, the Department issued a 
third supplemental questionnaire. On February 22, 2002, the respondent 
submitted its response to the first supplemental questionnaire. On 
April 4, 2002 and May 15, 2002, respondent submitted its responses to 
the second and third supplemental questionnaires. On May 3, 2002, the 
Department sought information from Fallah Pistachio. On May 6, 2002, 
the Department issued Section D of its questionnaire to Maghousdi Farm. 
On June 3, 2002, Fallah Pistachio submitted its response to the 
Department's request for information. On June 20, 2002, Maghousdi Farm 
submitted its response to Section D. Under section 751(a)(2)(B)(iv) of 
the Act, the Department may extend the deadline for completion of a new 
shipper review if it determines that the case is extraordinarily 
complicated. On April 2, 2002, the Department fully extended the time 
limit for the preliminary results of this new shipper review by 120 
days until July 29, 2002. See Certain In-Shell Raw Pistachios From 
Iran: Extension of Time Limit for Preliminary Results of Antidumping 
New Shipper Review, 67 FR 15530 (April 2, 2002).

Period of Review

    The POR is July 1, 2000, through June 30, 2001.

Scope of the 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.

Product Comparisons

    In accordance with section 771(16) of the Act, we considered all 
products produced by the respondents covered by the description in the 
``Scope Review'' section above and sold in the comparison market during 
the POR, to be foreign like products for purposes of determining 
appropriate product comparisons to U.S. sales. If there were no home 
market foreign like products to compare to a U.S. sale, we used 
constructed value (CV).

Export Price/Constructed Export Price

    In accordance with section 772(a) of the Act, export price is the 
price at which the subject merchandise is first sold (or agreed to be 
sold) before the date of importation by the producer or exporter of the 
subject merchandise outside of the United States to an unaffiliated 
purchaser in the United States or to an unaffiliated purchaser for 
exportation to the United States. In accordance with section 772(b) of 
the Act, constructed export price is the price at which the subject 
merchandise is first sold (or agreed to be sold) in the United States 
before or after the date of importation by or for the account of the 
producer or exporter of such merchandise or by a seller affiliated with 
the producer or exporter, to a purchaser not affiliated with the 
producer or exporter. For purposes of this review, Nima classified its 
sales as EP sales. See Section C response, at 5. Nima identified one 
channel of distribution for its U.S. sales during the POR. Id. at 6. 
With respect to Nima's sale dated June 25, 2001, based on Nima's 
description of the sale, the Department preliminarily determines that 
the goods were sold directly to an unaffiliated purchaser in the United 
States and as such the transaction constitutes an EP sale. We 
calculated EP in accordance with section 772(a) of the Act. We based EP 
on the FOB price to the unaffiliated purchaser in the United States. We 
made deductions for freight charges (i.e., foreign inland freight) to

[[Page 50864]]

the customer in accordance with section 772(c)(2)(A) of the Act.
    With respect to Nima's sale dated January 25, 2001, the Department 
has preliminarily determined to exclude this sale for purposes of this 
new shipper review. According to information submitted by respondent on 
the record, this sale was not conducted by Tehran Negah Nima Trading 
Company, Inc.
    Tehran Negah Nima Trading Company, Inc., trading as Nima Trading 
Company, the requester of this new shipper review, was incorporated and 
registered as a limited liability company in Iran on January 3, 2001. 
On February 10, 2001, the sole proprietor of Nima Trading Company, an 
entity established in November 2000, agreed to transfer all of his 
interest in Nima Trading Company and to allow Tehran Negah Nima Trading 
Company, Inc. to trade as ``Nima Trading Company.'' Evidence on the 
record indicates that the January 25, 2001, U.S. sale reported by 
Tehran Negah Nima Trading, Inc., was actually concluded by the former 
sole proprietorship of Nima Trading Company. As of the date of sale, 
January 25, 2001, the entity requesting this review, Tehran Negah Nima 
Trading, Inc., did not have the authority to trade as Nima Trading 
Company. As noted above, that authority was not granted until February 
10, 2001.
    Since Tehran Negah Nima Trading Company Inc., trading as Nima 
Trading Company, is the entity which requested the new shipper review, 
the Department has determined to limit this review to sales made by 
Tehran Negah Nima Trading Company, Inc. The Department does not have 
sufficient information available on the record to conduct a 
successorship analysis to determine whether Tehran Negah Nima Trading 
Company, Inc., is the successor to the sole proprietorship of Nima 
Trading Company. Referencing the January 25, 2001, U.S. sale, 
respondent stated on the record that it ``does not have any objection 
to have this sale removed from the file.'' See February 22, 2002 
response at 8. The Department therefore has preliminary determined to 
exclude the January 25, 2001, sale by Nima Trading Company for purposes 
of this review.

Normal Value

A. Ordinary Course of Trade
    In accordance with section 773(a)(1)(B)(i) of the Act, the normal 
value shall be the price at which the foreign like product is first 
sold (or, in the absence of a sales, offered for sale) for consumption 
in the exporting country, in the usual commercial quantities and in the 
ordinary course of trade and, to the extent practicable, at the same 
level of trade as the export price or constructed export price. Nima 
reported one sale of subject merchandise in the home market during the 
POR. See December 10, 2001, response at 10. Nima reported no sales of 
subject merchandise to any third country market. See November 15, 2001, 
response at 19. Regarding Nima's home market sale, Nima stated ``the 
sole purpose of establishing Nima...was to be able to exploit business 
opportunities in the US market for Iranian pistachios. Therefore, 
Nima's home market sale to Bakhshie was certainly a deviation from the 
company's main objective....'' Nima also stated that ``the sale of raw 
in-shell pistachios in the home market is not part of Nima's ordinary 
course of business.'' Furthermore, Nima stated that it ``does not have 
any plans for selling pistachios in the Iranian market in the future.'' 
See April 4, 2002, response at 7. Based on this information, the 
Department preliminarily finds that Nima's sale in the home market 
during the POR was not in the ordinary course of trade as defined in 
the statute and Departmental regulations.
    Where sales of the foreign like product sold for consumption in the 
exporting country are determined not to be in ordinary course of trade, 
section 773(a)(1)(B)(ii) of the Act directs the Department to employ 
the price of sales to a third country as the basis for NV. However, as 
noted above, Nima reported no sales of subject merchandise to any third 
country markets during the POR. Section 773(a)(4) of the Act states 
that if the administering authority determines that the normal value of 
the subject merchandise cannot be determined under paragraph 
773(a)(1)(B)(i), and there are no third country sales, the normal value 
of the subject merchandise may be based on the constructed value of 
that merchandise. Therefore, the Department determines that the use of 
constructed value in determining NV is appropriate in this review.
B. Normal Value Based on CV
    In accordance with section 773(e)(1) of the Act, we calculated CV 
based on the COP plus the exporter's SG&A expenses and an amount for 
profit. For COP, we included the producer's cost of production and the 
middleman's operational costs. Because the exporter's G&A costs were 
not separately reported from its selling expenses, and were included as 
such, we did not include them again in calculating CV.
    Because there are no viable home market sales or third country 
sales made by Nima during the POR, we cannot calculate CV profit under 
sections 773(e)(2)(A). Section 773(e)(2)(B)(iii) of the Act allows the 
Department to use amounts incurred and realized for profits, based on 
any other reasonable method as long as that profit does not exceed the 
amount normally realized by exporters or producers in connection with 
the sale, for consumption in the foreign country, of merchandise that 
is in the same general category of products as the subject merchandise. 
We based profit on the profit the middleman reported for the sale of 
subject merchandise to the exporter. We believe that the use of the 
middleman's profit meets the requirements of section 773(e)(2)(B)(iii) 
of the Act. First, the profit calculated is based on the middleman's 
sale of in-shell raw pistachios. Second, the sale took place in Iran. 
Third, the sale occurred during the POR. Thus, the profit rate is a 
profit realized in connection with the sale, for consumption in the 
foreign country, of subject merchandise. Finally, there is no evidence 
on the record that indicates this profit rate is aberrational or not 
representative of home market profit rates of subject merchandise. See 
Constructed Value Adjustments for Preliminary Determination, Memorandum 
from Gina K. Lee through Michael P. Martin to Neal M. Halper dated July 
29, 2002. The Department is currently seeking additional information on 
CV and may adjust its CV calculation for the Final Results. If the CV 
calculation is substantially altered based on additional information, 
the Department will allow interested parties an opportunity to comment 
before the Final Results.

Date of Sale

    Section 351.401(i) of the Department's regulations states that the 
Department will normally use the date of invoice, as recorded in the 
exporter's or producer's records kept in the ordinary course of 
business, as the date of sale, but may use a date other than the date 
of invoice if it better reflects the date on which the material terms 
of sale are established. Nima stated that, for the U.S. market, date of 
sale is based on invoice date. See February 22, 2002, response at 11. 
Therefore, the Department is using the date of invoice as the dale of 
sale.

Currency Conversion

    According to the International Monetary Fund's 2001 Annual 
International Monetary Report, as of March 20, 2000, Iran had a dual 
exchange rate system. The two

[[Page 50865]]

officially-approved rates are:1) the effective Tehran Stock Exchange 
(TSE) which is applied to all transactions, except for 2) government 
imports of essential goods, and services of public and publicly 
guaranteed debt (the exchange rate for which is approximately 1750Rls/
$US.) There is a separate TSE rate for ``oil exports'' and ``non-oil 
exports'', but both are within the first category of official exchange 
rates for private rather than public transactions.
    The Department's preferred source for daily exchange rates is the 
Federal Reserve Bank. When the Federal Reserve Bank does not provide 
exchange rates for a certain currency, the Department's practice has 
been to use exchange rates obtained from the Dow Jones News/Retrieval 
Service. The Federal Reserve Bank does not provide exchange rates for 
the Iranian rial. Exchange rates for the Iranian rial published in the 
Dow Jones News/Retrieval Service appear to be official rates for public 
rather than private transactions and are not reflective of the actual 
exchange rates at which Nima converted foreign exchange earnings in the 
POR. Nima has documented on the record the dual exchange rate system in 
Iran, utilizing Iranian government reports and bank statements. The 
record shows clearly that the exchange rates Nima realized during the 
POR are dramatically different from the rates listed in the Dow Jones. 
For this reason and because there are no other appropriate exchange 
rates on the record, the Department used the actual exchange rates at 
which respondent converted its foreign exchange earnings during the 
POR.

Preliminary Results of Review

    As a result of our review, we preliminarily determine that the 
following weighted-average dumping margin exists for the period July1, 
2000, through June 30, 2001:

------------------------------------------------------------------------
                                                        Weighted-Average
                       Company                               Margin
------------------------------------------------------------------------
Nima Trading Company (Nima)..........................     120.04 percent
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    In accordance with 19 CFR 351.224(b), the Department will disclose 
to parties to this proceeding the calculations performed in connection 
with these preliminary results within five days of the date of 
publication of this notice.
    Pursuant to 19 CFR 351.309, interested parties may submit written 
comments on these preliminary results. Case briefs must be submitted no 
later than 30 days after the date of publication of this notice. 
Rebuttal briefs, which must be limited to issues raised in the case 
briefs, must be submitted no later than five days after the time limit 
for filing case briefs. Parties submitting 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. Case and rebuttal 
briefs must be served on interested parties in accordance with 19 CFR 
351.303(f). Also, within 30 days of the date of publication of this 
notice, an interested party may request a public hearing on arguments 
to be raised in the case and rebuttal briefs. See 19 CFR 351.310(c). 
Unless the Secretary specifies otherwise, the hearing, if requested, 
will be held two days after the date for submission of rebuttal briefs, 
or the first working day thereafter. The Department will issue the 
final results of this new shipper review, including the results of its 
analysis of issues raised in any case or rebuttal brief, within 90 days 
of these preliminary results.

Assessment

    The Department shall determine, and the U.S. Customs Service 
(Customs) shall assess, antidumping duties on all appropriate entries. 
In accordance with 19 CFR 351.212(b), we have calculated exporter/
importer-specific assessment rates. We calculated importer-specific 
duty assessment rates on a unit value per kilogram basis and then 
dividing this sum by the entered value for that sale. If these 
preliminary results are adopted in our final results, we will instruct 
Customs to assess antidumping duties on the merchandise subject to 
review. Upon completion of this review, the Department will issue 
appraisement instructions directly to Customs.
    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 resulting from this review for 
any duties imposed to offset export subsidies found at the conclusion 
of the countervailing new shipper review.

Cash Deposit

    The following cash deposit requirements will be effective upon 
publication of the final results of this new shipper review 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 this new shipper review, as provided by section 
751(a)(1) of the Act: (1) The cash deposit rate for the reviewed 
company will be the rate established in the final results of this new 
shipper review (except that no deposit will be required if the rate is 
zero or de minimis, i.e., less than 0.5 percent); (2) for previously 
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 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) if neither the exporter nor 
the manufacturer is a firm covered in this review or the original LTFV 
investigation, the cash deposit rate will continue to be the ``all 
others'' rate of 184.28 percent established in the LTFV investigation. 
This 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. These deposit requirements, when imposed, shall remain in 
effect until publication of the final results of the next review.

Notification to Interested Parties

    This notice also serves as a preliminary 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 double antidumping duties. This new shipper review and 
notice are issued and published in accordance with sections 
751(a)(2)(B) and 777(i)(1) of the Act.

    Dated: July 29, 2002.
Faryar Shirzad,
Assistant Secretary for Import Administration.
[FR Doc. 02-19824 Filed 8-5-02; 8:45 am]
BILLING CODE 3510-DS-S