[Federal Register Volume 67, Number 192 (Thursday, October 3, 2002)]
[Notices]
[Pages 62013-62015]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-25187]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-823-814]


Notice of Preliminary Determination of Sales at Less Than Fair 
Value: Urea Ammonium Nitrate Solutions from Ukraine

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

EFFECTIVE DATE: October 3, 2002.

FOR FURTHER INFORMATION CONTACT: Crystal Crittenden or Tom Futtner, AD/
CVD Enforcement, Office 4, Group II, Import Administration, 
International Trade Administration, U.S. Department of Commerce, 14th 
Street and Constitution Avenue, NW., Washington, DC 20230; telephone: 
(202) 482-0989 and (202) 482-3814, respectively.

SUPPLEMENTARY INFORMATION:

The Applicable Statue 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's (the 
Department) regulations are to the regulations codified at 19 CFR part 
351 (April 2002).

Preliminary Determination:

    We preliminarily determine that imports of urea ammonium nitrate 
solutions (UANS) from Ukraine are being, or are likely to be sold, in 
the United States at less than fair value (LTFV), as provided in 
section 733 of the Act. The estimated margins of sales at LTFV are 
shown in the ``Suspension of Liquidation'' section of this notice.

Case History

    On May 9, 2002, the Department initiated antidumping duty 
investigations to determine whether imports of UANS from Lithuania, 
Belarus, the Russian Federation, and Ukraine are being, or are likely 
to be, sold in the United States at LTFV. See Initiation of Antidumping 
Investigations: Urea Ammonium Nitrate Solutions from Belarus, 
Lithuania, the Russian Federation, and Ukraine, 67 FR 35492 (May 20, 
2002) (Initiation Notice).\1\
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    \1\ The petitioner in this investigation is the Nitrogen 
Solutions Fair Trade Committee (the petitioner). Its members consist 
of CF Industries, Inc., Mississippi Chemical Corporation, and Terra 
Industries, Inc.
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    On June 4, 2002, the International Trade Commission (ITC) 
preliminarily determined that there is a reasonable indication that an 
industry in the United States is materially injured or threatened with 
material injury by reason of imports of UANS from Belarus, the Russian 
Federation and Ukraine. See Urea Ammonium Nitrate Solution from 
Belarus, Lithuania, the Russian Federation and Ukraine, 67 FR 39439 
(June 7, 2002).
    During May 2002, the Department provided participating parties with 
an opportunity to comment on scope and the product characteristics of 
subject merchandise. No parties submitted comments.
    On May 22, 2002, the Department issued its antidumping 
questionnaire\2\ to JSC Stirol (Stirol), JSC Azot Cherkassy 
(Cherkassy), and to the Embassy of Ukraine in Washington, DC requesting 
that they forward it to any other potential respondents. The Department 
received no responses to the questionnaire.
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    \2\ Section A of the questionnaire requests general information 
concerning a company's corporate structure and business practices, 
the merchandise under investigation that it sells, and the manner in 
which it sells that merchandise in all of its markets. Section B 
requests a complete listing of all home market sales, or, if the 
home market is not viable, of sales in the most appropriate third-
country market (this section is not applicable to respondents in 
non-market economy (NME) cases). Section C requests a complete 
listing of U.S. sales. Section D requests information on the factors 
of production of the merchandise sold in or to the United States 
under investigation. Section E requests information on further 
manufacturing.
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Period of Investigation

    The period of investigation (POI) is October 1, 2001, through March 
31, 2002. This period corresponds to the two most recent fiscal 
quarters prior to the filing of the petition (i.e., April 2002). See 19 
CFR 351.204(b)(1).

Scope of Investigation

    For purposes of these investigations, the product covered is all 
mixtures of urea and ammonium nitrate in aqueous or ammoniacal 
solution, regardless of nitrogen content by weight, and regardless of 
the presence of additives, such as corrosion inhibitors. The 
merchandise subject to these investigations is classified in the 
Harmonized Tariff Schedule of the United States (HTSUS) under item 
number 3102.80.00.00. Although the HTSUS item number is provided for 
convenience and U.S. Customs Service (U.S. Customs) purposes, the 
written description of the merchandise under investigation is 
dispositive.

[[Page 62014]]

Nonmarket Economy Country Status

    The Department has treated Ukraine as an nonmarket economy (NME) 
country in all previous antidumping investigations. See Notice of Final 
Determination of Sales at Less Than Fair Value: Solid Agricultural 
Ammonium Nitrate from Ukraine, 66 FR 38632 (July 25, 2001). This NME 
designation remains in effect until it is revoked by the Department. 
See section 771(1)(C) of the Act. No party has sought revocation of the 
NME status in this investigation.\3\ Therefore, in accordance with 
section 771(1)(C) of the Act, we will continue to treat Ukraine as an 
NME country.
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    \3\ We note that there is an ongoing inquiry into the status of 
Ukraine as a NME country, for which a notice to defer this decision 
was signed on August 5, 2002. See Notice to Defer a Decision 
Regarding Ukraine[quot]s Non-Market Economy Status: Antidumping Duty 
Investigation of Carbon and Certain Alloy Steel Wire Rod from 
Ukraine, 67 FR 51536 (August 8, 2002). Information on this separate 
proceeding can also be found at Import Administration's Web site, at 
http://ia.ita.doc.gov/.
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Ukraine-Wide Rate

    In an NME proceeding, the Department presumes that all companies 
within the country are subject to governmental control, and assigns 
separate rates only if the respondent demonstrates the absence of both 
de jure and de facto governmental control over export activities. See 
Notice of Sales at Less Than Fair Value: Bicycles From the People's 
Republic of China, 61 FR 19026, 19027 (April 30, 1996). Stirol and 
Cherkassy did not demonstrate the eligibility for a separate rate under 
the separate rates criteria. Accordingly, we preliminarily determine 
that Stirol and Cherkassy, in addition to all other exporters, are part 
of the NME-entity and subject to the Ukraine-wide rate.

Facts Available

    Section 776(a)(2) of the Act provides that, if an interested party 
(A) withholds information requested by the Department, (B) fails to 
provide such information by the deadline for submission of the 
information, or in the form and manner requested, (C) significantly 
impedes a proceeding under the antidumping statute, or (D) provides 
information that cannot be verified, the Department shall use, subject 
to section 782(d) of the Act, facts otherwise available in reaching the 
applicable determination.
    Pursuant to section 782(e) of the Act, the Department shall not 
decline to consider submitted information if all of the following 
requirements are met: (1) The information is submitted by the 
established deadline; (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; and 
(5) the information can be used without undue difficulties.
    No respondent submitted a response to the Department's 
questionnaire. See Letters from Holly Kuga to Stirol and to Cherkassy, 
dated August 16, 2002. Without a substantive response to the 
Department's questionnaire, we have no basis for determining a margin. 
Thus, the Department has applied facts available (FA), in accordance 
with section 776(a)(2) of the Act, in making our preliminary dumping 
determination.

Selection of Adverse FA

    Section 776(b) of the Act provides that if the Department finds the 
respondent ``has failed to cooperate by not acting to the best of its 
ability to comply with a request for information...{the 
Department{time}  may use an inference that is adverse to the interests 
of that party in selecting from among the facts otherwise available.'' 
See, e.g., Notice of Final Results of Antidumping Duty Administrative 
Review: Certain Welded Carbon Steel Pipes and Tubes From Thailand, 62 
FR 53808, 53819-20 (October 16, 1997). No respondent responded to the 
Department's questionnaire. On August 22, 2002, Stirol submitted a 
letter stating that it did not submit a response because it had no 
shipments of UANS to the United States, which we confirmed with the 
U.S. Customs Service. See Memo to the file from Crystal Crittenden 
dated September 13, 2002. As a general matter, it is reasonable for the 
Department to assume that the respondents possessed the records 
necessary for this investigation, and that by not supplying any 
information requested by the Department, they failed to cooperate to 
the best of their ability. Because the Department has determined that 
the respondents failed to cooperate to the best of their ability, we 
are applying an adverse inference pursuant to section 776(b) of the 
Act. As adverse FA, we have used the margin cited in the initiation of 
this proceeding corroborated with the most updated and accurate data 
that was available to the Department (i.e., the highest margin based on 
the adjusted initiation margin calculation), which is 193.58 percent, 
as the Ukraine-wide rate. See AD Initiation Checklist (May 9, 2002) 
(Initiation Checklist). Pursuant to section 776(c) of the Act, the 
Department has corroborated the 193.58 percent margin from initiation 
to the extent practicable. See Total Facts Available Corroboration 
Memorandum, dated September 26, 2002. This Ukraine-wide rate applies to 
all entries of subject merchandise. Though Stirol stated that it had no 
shipments, there is no basis to assign Stirol a rate distinct from the 
Ukrainian-wide rate.

Suspension of Liquidation

    In accordance with section 733(d) of the Act, we are directing the 
U.S. Customs Service to suspend liquidation of all imports of UANS from 
Ukraine entered, or withdrawn from warehouse, for consumption on or 
after the date of publication of this notice in the Federal Register. 
We will instruct the U.S. Customs Service to require a cash deposit or 
the posting of a bond equal to the weighted-average amount by which the 
normal value exceeds the U.S. price, as indicated below. These 
suspension-of-liquidation instructions will remain in effect until 
further notice. The weighted-average dumping margin is as follows:

------------------------------------------------------------------------
                Manufacturer/exporter                   Margin (percent)
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Ukraine-wide.........................................             193.58
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Disclosure

    In accordance with 19 CFR 351.224(b), the Department will disclose 
the calculations performed in the preliminary determination to 
interested parties within five days of the date of publication of this 
notice.

ITC Notification

    In accordance with section 733(f) of the Act, we have notified the 
ITC of the Department's preliminary affirmative determination. If the 
final determination in this proceeding is affirmative, the ITC will 
determine before the later of 120 days after the date of this 
preliminary determination or 45 days after the final determination 
whether imports of UANS from Ukraine are materially injuring, or 
threaten material injury to, the U.S. industry.

Public Comment

    Case briefs or other written comments must be submitted to the 
Assistant Secretary for Import Administration no later than one week 
after issuance of the verification report. Rebuttal briefs, whose 
contents are limited to the issues raised in the case briefs, must be 
filed within five days after the deadline for the submission of case 
briefs. A list of authorities used, a table of contents, and an 
executive summary of issues should

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accompany any briefs submitted to the Department. Executive summaries 
should be limited to five pages total, including footnotes. Further, we 
request that parties submitting briefs and rebuttal briefs provide the 
Department with a copy of the public version of such briefs on 
diskette.
    In accordance with section 774 of the Act, we will hold a public 
hearing, if requested, to afford interested parties an opportunity to 
comment on arguments raised in case or rebuttal briefs. If a request 
for a hearing is made, we will tentatively hold the hearing two days 
after the deadline for submission of rebuttal briefs at the U.S. 
Department of Commerce, 14th Street and Constitution Avenue, NW., 
Washington, DC 20230, at a time and in a room to be determined. Parties 
should confirm by telephone the date, time, and location of the hearing 
48 hours before the scheduled date. Interested parties who wish to 
request a hearing, or to participate in a hearing if one is requested, 
must submit a written request to the Assistant Secretary for Import 
Administration, U.S. Department of Commerce, Room 1870, within 30 days 
of the date of publication of this notice. Requests should contain: (1) 
The party's name, address, and telephone number; (2) the number of 
participants; and (3) a list of the issues to be discussed. At the 
hearing, oral presentations will be limited to issues raised in the 
briefs. See 19 CFR 351.310(c). The Department will make its final 
determination no later than 75 days after this preliminary 
determination.
    This determination is issued and published pursuant to sections 
733(f) and 777(i)(1) of the Act.

    Dated: September 26, 2002.
Faryar Shirzad,
Assistant Secretary for Import Administration.
[FR Doc. 02-25187 Filed 10-02-02; 8:45 am]
BILLING CODE 3510-DS-S