[Federal Register: July 11, 2003 (Volume 68, Number 133)]
[Notices]
[Page 41310-41313]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr11jy03-32]
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DEPARTMENT OF COMMERCE International Trade Administration
[C-507-501]
Certain In-Shell Pistachios From the Islamic Republic of Iran:
Final Results of Countervailing Duty Administrative Review
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
ACTION: Notice of final results of countervailing duty administrative
review.
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SUMMARY: On April 4, 2003, the Department of Commerce (the Department)
published in the Federal Register its preliminary results in the
countervailing duty (CVD) administrative review of certain in-shell
pistachios from Iran. See Certain In-shell Pistachios from the Islamic
Republic of Iran: Preliminary Results of Countervailing Duty
Administrative Review, 68 FR 16473 (April 4, 2003) (Preliminary
Results). The Department has now completed this administrative review
in accordance with section 751(a) of the Tariff Act of 1930, as amended
(the Act).
Based on our analysis of the comments received, the Department has
revised the net subsidy rate for the Rafsanjan Pistachios Producers
Cooperative (RPPC). The revised final net subsidy rate for the reviewed
company is listed below in the ``Final Results of Review'' section of
this notice.
EFFECTIVE DATE: July 11, 2003.
FOR FURTHER INFORMATION CONTACT: Darla Brown or Eric B. Greynolds, AD/
CVD Enforcement, Office VI, Group II, Import Administration, U.S.
Department of Commerce, Room 4012, 14th Street and Constitution Avenue,
NW., Washington, DC 20230; telephone (202) 482-2849 or (202) 482-6071,
respectively.
SUPPLEMENTARY INFORMATION:
Background
On March 11, 1986, the Department published in the Federal Register
the countervailing duty order on certain in-shell pistachios from Iran.
See Final Affirmative Countervailing Duty Determination and
Countervailing Duty Order: In-shell Pistachios from Iran, 51 FR 8344
(March 11, 1986) (In-shell Pistachios).
We published the Preliminary Results of the instant administrative
review in the Federal Register on April 4, 2003 (68 FR 16473). We
invited interested parties to comment on the results. On
[[Page 41311]]
May 5, 2003, we received a case brief from petitioners.\1\ In their May
5, 2003, case brief, petitioners requested a hearing. On May 14, 2003,
petitioners withdrew their request for a hearing. We did not receive
case or rebuttal briefs from respondents.
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\1\ Petitioners include the California Pistachios Commission and
its members and a domestic interested party, Cal Pure Pistachios,
Inc.
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In accordance with 19 CFR 351.213 (2002), this administrative
review covers only those producers or exporters for which a review was
specifically requested. Accordingly, this administrative review covers
RPPC and nine programs for the period of review (POR) January 1, 2001,
through December 31, 2001.
Scope of Review
The product covered by this administrative review is in-shell
pistachio nuts from which the hulls have been removed, leaving the
inner hard shells and edible meat, as currently classifiable in the
Harmonized Tariff Schedules of the United States (HTSUS) under item
number 0802.50.20.00. The HTSUS subheadings are provided for
convenience and customs purposes. 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 all companies that are cross-owned and/or
affiliated with RPPC, the producer of subject merchandise, and RPPC's
shareholders. In addition, we have repeatedly requested information
concerning the total sales and sales of subject merchandise made by
RPPC during the POR. Moreover, we have repeatedly asked for specific
information concerning RPPC's and its members' usage of the following
programs: Provision of Fertilizer and Machinery, Provision of Water and
Irrigation Equipment, Duty Refunds on Imported Raw or Intermediate
Materials Used in the Production of Exported Goods, Program to Improve
the Quality of Exports of Dried Fruit, Tax Exemptions, Technical
Assistance from the GOI, and Provision of Credit. See Preliminary
Results.
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 in the paragraph above and in our Preliminary Results, RPPC
and the GOI have failed to provide information regarding cross-
ownership, affiliation, sales, and the programs named above in the
manner explicitly and repeatedly requested by the Department;
therefore, we must resort to the 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, despite numerous
opportunities, the GOI and RPPC have failed to cooperate to the best of
their ability. 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 statute indicates that the Department may rely upon information
derived from (1) the petition, a final determination in a
countervailing duty or an antidumping investigation, any previous
administrative review, new shipper review, expedited antidumping
review, section 753 review, or section 762 review; or (2) any other
information placed on the record. See section 776(b) of the Act. Thus,
in applying adverse facts available, we have used information on the
record of this administrative review as well as information regarding
the programs and exchange rates from the final determinations of In-
shell Pistachios and Certain In-shell Pistachios and Certain Roasted
In-shell Pistachios from the Islamic Republic of Iran: Final Results of
New Shipper Countervailing Duty Reviews, 68 FR 4997 (January 31, 2003)
(Pistachios New Shipper Reviews).
Specifically, for the Export Certificate Voucher Program, we used
publicly available data from the Pistachios New Shipper Reviews in
order to calculate a benefit. With respect to the other seven programs
determined to confer subsidies, we relied on the rates calculated for
each of those programs in the original investigation of In-shell
Pistachios. The Department's selection of the information used as
adverse facts available is discussed in more detail in the program-
specific sections of the ``Issues and Decision Memorandum: Final
Results of Countervailing Duty Administrative Review: Certain In-Shell
(Raw) Pistachios from the Islamic Republic of Iran'' (Decision
Memorandum) dated August 2, 2003, which is hereby adopted by this
notice.
If the Department relies on secondary information (e.g., data from
a petition) as facts available, section 776(c) of the Act provides that
the Department shall, ``to the extent practicable,'' corroborate such
information using independent sources reasonably at its disposal.\2\
The SAA further provides that to corroborate secondary information
means that the Department will satisfy itself that the secondary
information to be used has probative value. See also, 19 CFR
351.308(d).
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\2\ The Statement of Administrative Action accompanying the URAA
clarifies that information from the petition is ``secondary
information.'' See Statement of Administrative Action, accompanying
H.R. 5110 (H. Doc. No. 103-316) (1994) (SAA) at 870.
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Thus, in those instances in which it determines to use secondary
information, the Department, in order to satisfy itself that such
information has probative value, will examine, to the extent
practicable, the reliability and relevance of the information used. See
Final Affirmative Countervailing Duty Determination: Certain Hot-Rolled
Carbon Steel Flat Products From Argentina, 66 FR 37007 (July 16, 2001).
However, unlike other types of information, such as publicly available
data on the national inflation rate of a given country or national
average interest rates, there typically are no independent sources for
data on company-specific benefits resulting from countervailable
subsidy programs. The only source for such information normally is
administrative determinations. In the instant case, no evidence has
been presented or obtained which contradicts the reliability of the
evidence relied upon in previous segments of this proceeding.
With respect to the relevance aspect of corroboration, the
Department will consider information reasonably at its disposal as to
whether there are circumstances that would render benefit data not
relevant. See Cotton Shop Towels from Pakistan: Final Results of
Countervailing Duty Administrative Review, 66 FR 42514 (August 13,
2001) at ``Use of Facts Available Section'' of the Final Issues and
Decision Memorandum (where the Department used the subsidy rate found
for a program in the last administrative review conducted for the
order). Where circumstances indicate that the information is not
appropriate as adverse facts available, the Department will not use it.
See Fresh Cut Flowers from Mexico; Final Results of Antidumping Duty
Administrative Review, 61 FR 6812 (February 22, 1996) (where the
Department disregarded the highest dumping margin as best
[[Page 41312]]
information available because the margin was based on another company's
uncharacteristic business expense resulting in an unusually high
margin). In the instant case, no evidence has been presented or
obtained which contradicts the relevance of the benefit data relied
upon in previous segments of this proceeding. Thus, in the instant
case, the Department finds that the information used has been
corroborated to the extent practicable.
Analysis of Comments Received
All issues raised in the case and rebuttal briefs by parties to
this review are addressed in the Decision Memorandum. A list of issues
which parties have raised and to which we have responded, all of which
are in the Decision Memorandum, is attached to this notice as Appendix
I. Parties can find a complete discussion of all issues raised in this
review and the corresponding recommendations in this public memorandum,
which is on file in room B-099 of the Main Commerce Building. In
addition, a complete version of the Decision Memorandum can be accessed
directly on the World Wide Web at http://ia.ita.doc.gov, under the
heading ``Federal Register Notices.'' The paper copy and electronic
version of the Decision Memorandum are identical in content.
Final Results of Review
In accordance with section 705(c)(1)(B)(i) of the Act, we
determined an ad valorem subsidy rate for RPPC.
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Producer/Exporter Cash deposit rate
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Rafsanjan Pistachio Producers 60.77 percent ad valorem.
Cooperative (RPPC).
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Under section 351.526 of the Department's regulations, the
Department can adjust cash deposit rates to account for program-wide
changes. During the recently-completed new shipper reviews of in-shell
pistachios and in-shell roasted pistachios from Iran, the Department
verified that the export certificate voucher program has been
terminated subsequent to the POR (see Pistachios New Shipper Reviews
and the accompanying Issues and Decision Memorandum at Comment 13).
Therefore, we are adjusting the cash deposit rate to take into account
this program-wide change. Thus, in determining the cash deposit rate
listed below, we have deducted the subsidies found for this program
from the overall subsidy rate calculated for RPPC.
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Producer/Exporter Cash deposit rate
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Rafsanjan Pistachio Producers 49.77 percent ad valorem.
Cooperative (RPPC).
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We will instruct the U.S. Bureau of Customs and Border Protection
(Customs) to assess countervailing duties as indicated above. The
Department will instruct Customs to collect cash deposits of estimated
countervailing duties in the percentage detailed above of the f.o.b.
invoice prices on all shipments of the subject merchandise from the
producers/exporters under review, entered, or withdrawn from warehouse,
for consumption on or after the date of publication of the final
results of this administrative review.
Because the 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) 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 at the cash deposit
rate, and cash deposits must continue to be collected, at the 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).
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 Customs 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 conducted under the URAA.
If such a review has not been conducted, the rate established in the
most recently completed administrative proceeding pursuant to the
statutory provisions that were in effect prior to the URAA amendments
is applicable. See Stainless Steel Sheet and Strip in Coils from the
Republic of Korea: Amended Final Results of Countervailing Duty
Administrative Review, 67 FR 8229 (February 22, 2002). This rate shall
apply to all non-reviewed companies until a review of a company
assigned this rate is requested. In addition, for the period January 1,
2001 through December 31, 2001, the assessment rates applicable to all
non-reviewed companies covered by this order are the cash deposit rates
in effect at the time of entry.
This notice also serves as a final reminder to importers of their
responsibility under 19 CFR 351.402(f) to file a certificate regarding
the reimbursement of duties prior to liquidation of the relevant
entries during this review period.
This notice 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(a)(3). Timely written
notification of return/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 administrative review and notice are issued and published in
accordance with section 751(a)(1) of the Act.
Dated: July 2, 2003.
Joseph A. Spetrini,
Acting Assistant Secretary for Grant Aldonas, Under Secretary.
Appendix I--Issues and Decision Memorandum
I. Methodology and Background Information
Use of Facts Available.
II. Analysis of Programs
A. Programs Determined to Confer Subsidies
1. Export Certificate Voucher Program.
2. Provision of Fertilizer and Machinery.
3. Provision of Water and Irrigation Equipment.
4. Program to Improve Quality of Exports of Dried Fruit.
5. Duty Refunds on Imported Raw or Intermediate Materials Used
in the Production of Exported Goods.
6. Tax Exemptions.
7. Technical Assistance from the GOI.
8. Provision of Credit.
B. Program Determined To Be Not Countervailable
Price Supports and/or Guaranteed Purchase of All Production.
III. Total AD Valorem Rate
IV. Analysis of Comments
Comment 1: Use of Adverse Facts Available.
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Comment 2: Export Certificate Voucher Program.
Comment 3: Price Supports Program.
[FR Doc. 03-17629 Filed 7-10-03; 8:45 am]