[Federal Register Volume 70, Number 214 (Monday, November 7, 2005)]
[Notices]
[Pages 67453-67455]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-22145]
[[Page 67453]]
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DEPARTMENT OF COMMERCE
International Trade Administration
C-507-601
Certain In-shell Roasted Pistachios from the Islamic Republic of
Iran: Preliminary Results of Countervailing Duty Administrative Review
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
SUMMARY: The Department of Commerce (the Department) is conducting an
administrative review of the countervailing duty (CVD) order on certain
in-shell roasted pistachios from the Islamic Republic of Iran (Iran)
for the period January 1, 2003, through December 31, 2003. For
information on the net subsidy rate for the reviewed company, please
see the ``Preliminary Results of Review'' section of this notice.
Interested parties are invited to comment on these preliminary results.
(See the ``Public Comment'' section of this notice.)
EFFECTIVE DATE: November 7, 2005.
FOR FURTHER INFORMATION CONTACT: Darla Brown, AD/CVD Operations, Office
3, Import Administration, U.S. Department of Commerce, Room 4014, 14th
Street and Constitution Avenue NW, Washington, DC 20230; telephone:
(202) 482-2786.
SUPPLEMENTARY INFORMATION:
Background
On October 7, 1986, the Department published in the Federal
Register the countervailing duty order on certain in-shell roasted
pistachios from Iran. See Final Affirmative Countervailing Duty
Determination and Countervailing Duty Order: Roasted In-Shell
Pistachios from Iran, 51 FR 35679 (October 7, 1986) (Roasted
Pistachios). On October 1, 2004, the Department published a notice of
opportunity to request an administrative review of this CVD order. See
Antidumping or Countervailing Duty Order, Finding, or Suspended
Investigation; Opportunity To Request Administrative Review, 69 FR
58889 (October 1, 2004). On October 27, 2004, we received a timely
request for an administrative review from Tehran Negah Nima Trading
Company, Inc., trading as Nima Trading Company (Nima), the respondent
company in this proceeding. On November 19, 2004, we initiated an
administrative review of the CVD order on in-shell roasted pistachios
from Iran covering the period of review (POR) January 1, 2003, through
December 31, 2003. See Initiation of Antidumping and Countervailing
Duty Administrative Reviews, 69 FR 67701 (November 19, 2004).
On November 30, 2004, petitioners\1\ filed an entry of appearance
and request for verification. On December 20, 2004, we issued our
initial questionnaire to the Government of Iran (GOI) and Nima. On
December 21, 2004, Cal Pure Pistachios, Inc. (Cal Pure), a domestic
interested party, submitted an entry of appearance.
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\1\ Petitioners are comprised of members of the California
Pistachio Commission (CPC).
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On January 25, 2005, and January 26, 2005, the GOI and Nima,
respectively, submitted questionnaire responses. On March 3, 2005, we
issued a supplemental questionnaire to Nima. On March 31, 2005, Nima
submitted its response to our supplemental questionnaire.
On April 25, 2005, we extended the period for the completion of the
preliminary results pursuant to section 751(a)(3)(A) of the Tariff Act
of 1930, as amended (the Act). See Certain In-shell Roasted Pistachios
from the Islamic Republic of Iran: Extension of Time Limit for
Preliminary Results of Countervailing Duty Administrative Review, 70 FR
22299 (April 29, 2005).
On May 2, 2005, we issued a supplemental questionnaire to the GOI.
On May 31, 2005, the GOI submitted its supplemental questionnaire
response. On September 7, 2005, we issued a second supplemental
questionnaire to Nima. On September 30, 2005, Nima submitted its
supplemental questionnaire response. On September 15, 2005, we issued a
second supplemental questionnaire to the GOI. On October 4, 2005, the
GOI submitted its supplemental questionnaire response. On October 6,
2005, we extended the time limit for Nima to respond to the
Department's second supplemental questionnaire. On October 12, 2005,
Nima submitted its complete supplemental questionnaire response.
In accordance with 19 CFR 351.213(b), this administrative review
covers only those producers or exporters for which a review was
specifically requested. Accordingly, this administrative review covers
Nima and its grower, Razi Domghan Agricultural and Animal Husbandry
Company (Razi), and ten programs for the POR January 1, 2003, through
December 31, 2003.
Scope of Order
The product covered by this order is all roasted in-shell pistachio
nuts, whether roasted in Iran or elsewhere, from which the hull has
been removed, leaving the inner hard shells and the edible meat, as
currently classifiable in the HTSUS under item number 0802.50.20.00.
The written description of the scope of this proceeding is dispositive.
Use of Facts Available
During the course of this proceeding, we have repeatedly sought
information pertaining to Nima and Razi's use of the subsidy programs
under review, including information on any and all loans that the
companies received from the GOI. See pages III-3, III-7 through 8, and
III-10 of the Department's December 20, 2004, initial questionnaire,
pages 3-4 of the Department's March 3, 2005, supplemental questionnaire
to Nima, and pages 1-2 of the Department's September 7, 2005, second
supplemental questionnaire to Nima. In addition, we have repeatedly
requested information from the GOI regarding loans made to Nima and
Razi. See pages II-4 through II-5 and II-7 through II-8 of the
Department's December 20, 2004, initial questionnaire, pages 3 and 5-6
of the Department's May 2, 2005, supplemental questionnaire to the GOI,
and page 2 of the Department's September 15, 2005, second supplemental
questionnaire to the GOI.
In response to these inquiries relating to the Provision of Credit
program, the GOI and Nima repeatedly stated that neither Nima nor Razi
obtained any loans during or prior to the POR. See, e.g., page 21 of
Nima's January 26, 2005, questionnaire response and pages 10-13 of
Nima's March 31, 2005, supplemental questionnaire response. However, in
its October 12, 2005, response to the Department's second supplemental
questionnaire, Nima revealed for the first time that on December 13,
2003, Razi obtained a short-term loan from the Bank of Agriculture
(Bank Keshavarzi), a GOI-owned bank.
Section 776(a) of the Act requires the use of facts available when
an interested party withholds information that has been requested by
the Department, or when an interested party fails to provide the
information requested in a timely manner and in the form required. As
described above, Nima and the GOI failed to provide information
regarding the Provision of Credit program in a timely manner, as
requested by the Department. The Department works within a limited time
frame, as provided in section 751(a) of the Act. Because Nima only
disclosed its loan to the Department on October 12, 2005, the
Department is unable to ask clarifying questions concerning the loan in
question prior to its issuance of the preliminary results. Thus, due to
the
[[Page 67454]]
untimely response of Nima and the GOI concerning the Provision of
Credit program, we preliminarily determine that their answers on this
matter are inadequate. Therefore, we must resort to the use of facts
otherwise available.
Furthermore, section 776(b) of the Act provides that in selecting
from among the facts available, the Department may use an inference
that is adverse to the interests of a party if it determines that a
party has failed to cooperate to the best of its ability. The
Department finds that, by not providing necessary information
specifically requested by the Department in a timely fashion, despite
numerous opportunities, the GOI and Nima have failed to cooperate to
the best of their abilities. Therefore, in selecting from among the
facts available, the Department determines that an adverse inference is
warranted.
When employing an adverse inference in an administrative review,
the Act indicates that the Department may rely upon information derived
from a variety of sources. See 19 CFR 351.308(c). In applying adverse
facts available in the instant review, we have used information on the
record of this administrative review. As discussed in the ``Analysis of
Programs'' section below, as adverse facts available, we have relied
upon a benchmark interest rate of 24 percent, which the GOI reported in
its questionnaire responses was the highest lending rate a commercial
bank in Iran would charge pistachio producers.
As discussed above, we learned of Razi's receipt of a government
loan in Nima's October 12, 2005, supplemental questionnaire response.
Razi's admission of receipt of the government loan at this stage of the
proceeding raises the concern of whether Razi and Nima have fully
reported all subsidies that they may have received during the POR under
the GOI programs subject to this administrative review. Therefore,
subsequent to these preliminary results we will continue to examine
whether the GOI, Nima and Razi have properly identified any and all
subsidies that the companies may have received during the POR.
Furthermore, we will continue to examine the appropriateness of the
rate we are assigning as adverse facts available in this administrative
review.
Analysis of Programs
I. Programs Preliminarily Determined to Confer Subsidies
A. Provision of Credit
As noted above, although Nima and Razi repeatedly stated that they
did not receive any loans from the GOI during the POR of the instant
review, in Nima's October 12, 2005, second supplemental questionnaire
response, Nima revealed for the first time that on December 13, 2003,
Razi obtained a short-term loan from the Bank of Agriculture (Bank
Keshavarzi), a GOI-owned bank.
We find that Nima failed to provide us with the information we
requested in a timely manner. Therefore, as discussed above in the
``Use of Facts Available'' section of this notice, we preliminarily
determine that an adverse inference is warranted.
In the original investigation, we found that, under this program,
the GOI provides loans at below market interest rates to members of the
agricultural sector. See Roasted Pistachios. Although the original
determination was made on the basis of best information available
(BIA), no new information or evidence of changed circumstances has been
presented to cause us to revisit this determination. The Department
preliminarily finds this program to be specific under section
771(5A)(D)(iii)(I) of the Act because the preferential credit was made
available to a limited number of customers. Moreover, we preliminarily
determine that this program provides a financial contribution within
the meaning of section 771(5)(D)(i) of the Act in the form of a loan.
To determine the benefit conferred on Nima/Razi by this program, we
compared the actual interest paid on the loan during the POR with the
amount of interest that would have been paid at the applicable
benchmark interest rate. As adverse facts available, we applied a
benchmark interest rate of 24 percent, which the GOI reported in its
questionnaire responses was the highest lending rate a commercial bank
in Iran would charge pistachio producers. We then divided the benefit
derived by the value of Razi's total sales. On this basis, we
preliminarily calculated a net countervailable subsidy of less than
0.005 percent ad valorem for Nima/Razi.
II. Programs Preliminarily Determined to Be Not Used
Based on the information supplied by Nima on behalf of itself and
its grower, Razi, we preliminarily determine that the programs listed
below were not used during the POR.
A. Provision of Fertilizer and Machinery
B. Tax Exemptions
C. Provision of Water and Irrigation Equipment
D. Technical Support
E. Duty Refunds on Imported Raw or Intermediate Materials Used in
the Production of Export Goods
F. Program to Improve Quality of Exports of Dried Fruit
G. Iranian Export Guarantee Fund
H. GOI Grants and Loans to Pistachio Farmers
I. Crop Insurance for Pistachios
Preliminary Results of Review
In accordance with sections 751(a)(1) and 751(a)(3)(A) of the Act
and 19 CFR 351.221(b)(4)(i), we have calculated an individual subsidy
rate for Nima, the only exporter subject to this administrative review,
for the POR, i.e., calendar year 2003. We preliminarily determine that
the total estimated net countervailable subsidy rate is 0.00 percent ad
valorem.
As Nima is the exporter, but not the producer, of subject
merchandise, the Department's final results of review will apply to
subject merchandise exported by Nima and produced by Nima's supplier of
pistachios, Razi. See 19 CFR 351.107(b). Therefore, we intend to issue
the following cash deposit requirements, effective upon publication of
the notice of final results of review for all shipments of subject
merchandise entered, or withdrawn from warehouse, for consumption on or
after the date of publication: (1) for merchandise exported by Nima and
produced by Razi, the cash deposit rate will be the ad valorem rate
calculated in the final results of the instant administrative review;
(2) for merchandise exported by Nima and produced by Maghsoudi Farms,
the cash deposit rate will be 23.18 percent, the rate calculated for
Nima and Maghsoudi Farms in the new shipper reviews (see Certain In-
Shell Pistachios (C-507-501) and Certain Roasted In-Shell Pistachios
(C-507-601) from the Islamic Republic of Iran: Final Results of New
Shipper Countervailing Duty Reviews, 68 FR 4997 (January 31, 2003) (New
Shipper Reviews); (3) for merchandise exported by Nima but not produced
by Razi or Maghsoudi Farms, the cash deposit rate will be the ``all
others'' rate established in the original CVD investigation (see 51 FR
8344 (March 11, 1986)); (4) if the exporter is not a firm covered in
this review, a prior review, or the original CVD investigation, but the
producer is, the cash deposit rate will be the rate established for the
most recent period for the producer of the merchandise; and (5) if
neither the exporter nor producer is a firm covered in this review or
the original investigation, the cash deposit rate for all other
producers or exporters of the subject merchandise will continue to be
99.52 percent ad valorem. This rate is the ``all others'' rate from the
final determination in the original investigation.
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If the final results of this review remain the same as these
preliminary results, the Department intends to instruct U.S. Customs
and Border Protection (CBP), within 15 days of publication of the final
results of this review, to liquidate without regard to countervailing
duties all shipments of subject merchandise exported by Nima and
produced by Razi, entered, or withdrawn from warehouse, for consumption
during the POR. Should the final results of this review remain the same
as these preliminary results, the Department will also instruct CBP not
to collect cash deposits of estimated countervailing duties on all
shipments of the subject merchandise exported by Nima and produced by
Razi, entered, or withdrawn from warehouse, for consumption on or after
the date of publication of the final results of this review.
Because the Uruguay Round Agreements Act (URAA) replaced the
general rule in favor of a country-wide rate with a general rule in
favor of individual rates for investigated and reviewed companies, the
procedures for establishing countervailing duty rates, including those
for non-reviewed companies, are now essentially the same as those in
antidumping cases, except as provided for in section 777A(e)(2)(B) of
the Act. The requested review will normally cover only those companies
specifically named. See 19 CFR 351.213(b). Pursuant to 19 CFR
351.212(c), for all companies for which a review was not requested,
duties must be assessed and cash deposits must continue to be collected
at the cash deposit rate previously ordered. As such, the
countervailing duty cash deposit rate applicable to a company can no
longer change, except pursuant to a request for a review of that
company. See Federal-Mogul Corporation and The Torrington Company v.
United States, 822 F. Supp. 782 (CIT 1993), and Floral Trade Council v.
United States, 822 F. Supp. 766 (CIT 1993) (interpreting 19 CFR
353.22(e), the old antidumping regulation on automatic assessment,
which is identical to the current regulation, 19 CFR
351.212(c)(1)(ii)). Therefore, the cash deposit rates for all companies
except those covered by this review will be unchanged by the results of
this review.
We will instruct CBP to continue to collect cash deposits for non-
reviewed companies at the most recent company-specific or country-wide
rate applicable to the company. Accordingly, the cash deposit rates
that will be applied to non-reviewed companies covered by this order
will be the rate for that company established in the most recently
completed administrative proceeding. See Certain In-Shell Pistachios
from the Islamic Republic of Iran: Final Results of Countervailing Duty
Administrative Review, 68 FR 41310 (July 11, 2003). These cash deposit
rates shall apply to all non-reviewed companies until a review of a
company assigned these rates is requested.
Public Comment
Pursuant to 19 CFR 351.224(b), the Department will disclose to
parties to the proceeding any calculations performed in connection with
these preliminary results within five days after the date of the public
announcement of this notice. Pursuant to 19 CFR 351.309, interested
parties may submit written comments in response to these preliminary
results. Unless otherwise indicated by the Department, case briefs must
be submitted within 30 days after the publication of these preliminary
results. Rebuttal briefs, which are limited to arguments raised in case
briefs, must be submitted no later than five days after the time limit
for filing case briefs, unless otherwise specified by the Department.
Parties who submit argument in this proceeding are requested to submit
with the argument: (1) a statement of the issue, and (2) a brief
summary of the argument. Parties submitting case and/or rebuttal briefs
are requested to provide the Department copies of the public version on
disk. Case and rebuttal briefs must be served on interested parties in
accordance with 19 CFR 351.303(f). Also, pursuant to 19 CFR 351.310,
within 30 days of the date of publication of this notice, interested
parties may request a public hearing on arguments to be raised in the
case and rebuttal briefs. Unless the Secretary specifies otherwise, the
hearing, if requested, will be held two days after the date for
submission of rebuttal briefs.
Representatives of parties to the proceeding may request disclosure
of proprietary information under administrative protective order no
later than 10 days after the representative's client or employer
becomes a party to the proceeding, but in no event later than the date
the case briefs, under 19 CFR 351.309(c)(ii), are due. The Department
will publish the final results of this administrative review, including
the results of its analysis of issues raised in any case or rebuttal
brief or at a hearing.
This administrative review and notice are issued and published in
accordance with sections 751(a)(1), 751(a)(3) and 777(i)(1) of the Act
and 19 CFR 351.221(b)(4).
Dated: October 31, 2005.
Joseph A. Spetrini,
Acting Assistant Secretary for Import Administration.
[FR Doc. 05-22145 Filed 11-4-05; 8:45 am]
BILLING CODE 3510-DS-S