07-6155. Solid Urea From the Russian Federation: Preliminary Results and Extension of Time Limit for Final Results of the Antidumping Duty New-Shipper Review

AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

DATES:

Effective Date: December 26, 2007.

SUMMARY:

The Department of Commerce (the Department) is conducting a new-shipper review of the antidumping duty order on solid urea from the Russian Federation manufactured and exported by MCC EuroChem (EuroChem). The period of review (POR) is July 1, 2006, through December 31, 2006. We preliminarily determine that, during the POR, EuroChem did not sell the subject merchandise at less than normal value.

We invite interested parties to comment on these preliminary results. 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.

FOR FURTHER INFORMATION CONTACT:

Thomas Schauer or Minoo Hatten, AD/CVD Operations, Office 5, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone: [phone] and [phone], respectively.

SUPPLEMENTARY INFORMATION:

Background

On July 14, 1987, the Department published the antidumping duty order on solid urea from the Union of Soviet Socialist Republics. See Antidumping Duty Order; Urea From the Union of Soviet Socialist Republics, 52 FR 26367 (July 14, 1987). Following the break-up of the Soviet Union, the antidumpng duty order on solid urea from the Soviet Union was transferred to the individual members of the Commonwealth of Independent States. See Solid Urea from the Union of Soviet Socialist Republics; Transfer of the AD Order on Solid Urea from the Union of Soviet Socialist Republics to the Commonwealth of Independent States and the Baltic States and Opportunity to Comment, 57 FR 28828 (June 29, 1992). The rate established in the less-than-fair-value investigation for the Soviet Union was applied to each new independent state, including The Russian Federation.

On January 25, 2007, in accordance with 19 CFR 351.214(c), the Department received a timely request from EuroChem for a new-shipper review of the antidumping duty order on solid urea from The Russian Federation. On February 27, 2007, the Department found that the request for review with respect to EuroChem met all of the regulatory requirements set forth in 19 CFR 351.214(b) and initiated an antidumping duty new-shipper review covering the period July 1, 2006, through December 31, 2006. See Solid Urea from Russia: Notice of Initiation of Antidumping Duty New-shipper Review, 72 FR 9930 (March 6, 2007).

On August 24, 2007, the Department published an extension of the time period for issuing the preliminary results of the new-shipper review by an additional 113 days to December 17, 2007, in accordance with section 751(a)(2)(B)(iv) of the Tariff Act of 1930, as amended (the Act), and 19 CFR 351.214(I)(2). See Solid Urea From Russia: Extension of time Limit for Preliminary Results of Antidumping Duty New-Shipper Review, 72 FR 48617 (August 24, 2007).

On September 27, 2007, the petitioner argued that the Department has the authority to rescind the new-shipper review and the sale under the concurrent administrative review.^[1] The petitioner urged the Department to exercise this authority because of the novelty and complexity of the issues before the Department 17, 2007, we issued a decision memorandum in which we determined not to rescind the new-shipper review.

Scope of the Order

The merchandise under review is solid aurea, a high-nitrogen content fertilizer which is produced by reacting ammonia with carbon dioxide. The product is currently classified under the Harmonized Tariff Schedules of the United States (HTSUS) item number 3102.10.00.00. Previously such merchandise was classified under item number 480.3000 of the Tariff Schedules of the United States. Although the HTSUS subheading is provided for convenience and customs purposes, the written description of the merchandise is dispositive.

Bona Fide Analysis

Consistent with our practice, we analyzed whether the single U.S. transaction reported by EuroChem during the POR was a bona fide sale. Among the factors we examined were the price of the U.S. sale and the nature of EuroChem's reported U.S. customer. Based on our analysis, we preliminarily determine that EuroChem's sale constitutes a bona fide transaction. For our complete analysis, see the memorandum from Thomas Schauer to the File entitled “Analysis of EuroChem's Bona Fides As A New Shipper” dated December 17, 2007, on file in room B-09 of the main Department of Commerce building.

Qualification for New-Shipper Review

On February 16, 2007, the Ad Hoc Committee of Domestic Nitrogen Producers (the petitioner) alleged that EuroChem was not entitled to a new-shipper review and requested that the Department rescind this review. On February 26, 2007, we received comments from EuroChem on this allegation, as well as reply comments from the petitioner on February 27, 2007.

The petitioners contend that the antidumping statue requires that a “new shipper” demonstrate that neither it nor its affiliates shipped during the period of investigation (POI). The petitioner asserts that EuroChem's affiliates, namely the plants producing solid urea which it owns, exported solid urea to the United States during the POI. The petitioner bases its assertion on its claim that both plants were among the urea producers included in the Soviet-wide entity that the Department examined in the less-than-fair-value investigation. The petitioner contends further that the change in ownership of the plants and The Russian Federation's transition to a market economy do not entitle EuroChem to a new-shipper review. Citing Solid Urea from the Russian Federation; Final Results of the Expedited Sunset Review of the Antidumping Duty Order, 70 FR 24528 (May 10, 2005) (Expedited Sunset Review), and accompanying Issues and Decision Memorandum at pages 8-10, the petitioner argues that neither privitization nor other changes in ownership result in the removal of a producer of subject merchandise from being subject to an existing order unless that company was found to be a successor to an already revoked or excluded company.

While it is true that the physical plants now owned and operated by EuroChem were in existence and produced solid urea during the POI, the question before us is whether EuroChem as an entity qualifies for a new-shipper review. The Department's position in the Expedited Sunset Review to which the petitioner cites was not in response to determining whether a party could qualify as a new shipper. Rather, the Department addressed the following argument in the

Expedited Sunset Review:

{T}he extraordinary facts involved in this sunset review—the fact the country (the Soviet Union) and entity (Soyuzpromexport) involved in the original investigation and order no longer exist, the changes that have occurred in Russia and the fact that the margins were based on a methodology that no longer applies to Russia—means that there has never been a valid determination of dumping against existing producers of solid urea from Russia and necessitates that the Department refrain from relying on margins derived from the original investigation and consider other information in its sunset review. Such information, respondent interested parties argue, demonstrates that dumping is not likely to continue or recur if the order on solid urea from Russian were revoked.

Id.

Thus, the position to which the petitioner cites had to do with whether the margins the Department found in the less-than-fair value investigation are likely to continue. The Department stated that “{a}ntidumping duty determinations are country-wide” and that the “order on solid urea from the Soviet Union covered all subject merchandise exported from the Soviet Union to be United States and applied to all producers of solid urea in the Soviet Union.” Id. This would be true regardless of whether the production facilities existed at the time of the POI. Thus, we did not speak to the issue we are considering in this review.

In order to ascertain whether EuroChem qualifies for a new-shipper review, we must ascertain whether it is the same entity, or a successor thereof, as existed during the POI. In making a successor-in-interest determination, the Department examines several factors including, but not limited to, changes in the following: (1) Management; (2) production facilities; (3) supplier relationships; (4) customer base. See, e.g., Notice of Initiation and Preliminary Results of Antidumping Duty Changed Circumstances Review: Certain Orange Juice From Brazil, 72 FR 1798, 51799 (September 11, 2007) (unchanged in final, 72 FR 59512 (October 22, 207)). While no single factor or combination of these factors will necessarily provide a dispositive indication of a successor-in-interest relationship, generally the Department will consider the new company to be the successor to the previous company if the new company's resulting operation is not materially dissimilar to that of its predecessor. Id. Thus, if the evidence demonstrates that, with respect to the production and sale of the subject merchandise, the new company operates as the same business entity as the former company, the Department will accord the new company the same antidumping treatment as its predecessor. Id. By inference, then, if the evidence happens to demonstrate that the new company does not operate as the same business entity as the former company, the Department will treat the new company as a different entity than its predecessor.

As a preliminary matter, the ownership of the production facilities in question has changed completely since the POI. During the POI, the plants were wholly owned and operated by the Soviet government. See EuroChem's questionnaire response dated May 8, 2007, at pages 154 and 169. As of 2001, the Russian government divested itself of all interest in either plant. See EuroChem's supplemental response dated July 11, 2007, in answer to question 3 under Appendix V (page numbers not provided in submission). EuroChem, a privately owned entity, began to acquire ownership interest in these plants in 2002. See EuroChem's questionnaire response dated May 8, 2007, at pages 154 and 169.

With respect to management, the top management of the two plants has changed completely since the POI. See EuroChem's questionnaire response dated May 8, 2007, at pages 116-7. In addition, the production facilities have undergone extensive modernization since the POI, including significant upgrades undertaken by EuroChem. See EuroChem's questionnaire response dated May 8, 2007, at pages 153-4, 168, and Confidential Exhibit 16.

With respect to suppliers and customers, EuroChem reported that the plants did not keep records that would permit a comparison of the supplier relationships and customer base that existed during the POI (1986) and the present because, under Russian law, the maximum period for archiving such documents is five years. See EuroChem's supplemental response dated September 24, 2007, in answer to questions 1 and 2 under “Suppliers and Distributors” (page numbers not provided in submission).

Although we do not have usable information regarding the supplier relationships or the customer base, we find that the ownership and management of the production facilities at issue have changed completely since the POI. Moreover, there have been significant upgrades to the plants since the POI. As a result of these facts, we preliminarily determine that EuroChem is not the successor-in-interest to the Soviet entity we examined in the less-than-fair-value investigation. Accordingly, we preliminarily determine that, based on the facts on the record of this review, EuroChem and its plants are entitled to a new-shipper review.

Comparisons to Normal Value

To determine whether EuroChem's sale of solid urea from The Russian Federation was made in the United States at less than normal value, we compared that export price to the normal value, as described in the “Export Price” and “Normal Value” sections of this notice.

When making this comparison in accordance with section 771(16) of the Act, we considered all products sold in the home market as described in the “Scope of the Order” section of this notice, above, that were in the ordinary course of trade for purposes of determining an appropriate product comparison to the U.S. sale. Because we did not find sales of identical merchandise in the home market made in the ordinary course of trade, we compared the U.S. sale to those home-market sales of the most similar merchandise that were most contemporaneous with the U.S. sale in accordance with 19 CFR 351.414(e). Pursuant to section 777A(d)(2) of the Act, we compared the export price of the single U.S. transaction to the weighted-average price of sales of the foreign like product for the calendar month that corresponds most closely to the calendar month of the individual export sale.

Product Comparisons

In accordance with section 771(16) of the Act, we compared products produced by EuroChem and sold in the U.S. and home markets on the basis of the comparison product which was closest in terms of the physical characteristics to the product sold in the United States. These characteristics, in the order of importance, are for, grade, nitrogen content, size, urea-formaldehyde content, other additive/conditioning agent, and biuret content.

Export Price

We used the export price for EuroChem's U.S. sale in accordance with section 772(a) of the Act because the subject merchandise was sold directly to the first unaffiliated purchaser in the United States prior to importation and the use of our constructed export-price methodology was not otherwise warranted based on the facts of the record. We based export price on the packed price to the first unaffiliated purchaser in the United States. We made deductions from the starting price for foreign inland-freight expenses, foreign brokerage and handling expenses, ocean-freight expenses, U.S. customs duties, and U.S. brokerage and handling expenses in accordance with section 772(c)(2)(A) of the Act.

Regarding the U.S. date of sale, EuroChem argued that we should use the contract date as the date of sale for its U.S. sale. The Department's regulations at 19 CFR 351.401(i) state that the Department will normally use the date of invoice as the date of sale, unless a different date better reflects the date on which the material terms of sale are established. We have analyzed the data on the record and preliminarily find that the material terms of the sale were set at the contract date, given that the terms did not change prior to invoicing. Further, because this is the first time that the Department is conducting a review of EuroChem, there is no prior evidence on the record that the terms of sale were changeable after the contract date. Therefore, in accordance with our practice, we preliminarily find that the appropriate U.S. date of sale is the contract date. See Certain Steel Concrete Reinforcing Bars from Turkey; Preliminary Results and Partial Recession of Antidumping Duty Administrative Review, 71 FR 26455, 26458 (May 5, 2006) (unchanged in final, 71 FR 65082 (November 7, 2006)).

Normal Value

A. Home-Market Viability and Selection of Comparison Market

In order to determine whether there is a sufficient volume of sales in the home market to serve as a viable basis for calculating normal value (i.e., the aggregate volume of home-market sales of the foreign like product is five percent or more of the aggregate volume of U.S. sales), we compared the volume of EuroChem's home-market sales of the foreign like product to the volume of its U.S. sale of subject merchandise, in accordance with section 773(a)(1)(c) of the Act. Based on this comparison, we determined that EuroChem had a viable home market during the POR. Consequently, we based normal value on home-market sales to unaffiliated purchasers made in the usual quantities in the ordinary course of trade.

B. Cost of Production

Pursuant to section 773(b)(2)(A)(I) of the Act, there were reasonable grounds to believe or suspect that EuroChem made home-market sales at prices below its cost of production (COP) during the POR based on information contained in the cost allegation filed properly by the petitioner. As a result, the Department initiated an investigation to determine whether EuroChem made home-market sales during the POR at prices below its COP. See the Memorandum from Thomas Schauer and Michael Harrison entitled, “The Petitioner's Allegation of Sales Below the Cost of Production for EuroChem” dated August 27, 2007 (EuroChem Cost-Allegation Memo).

In its June 5, 2007, cost allegation, the petitioner alleged that EuroChem's reported costs cannot be used to determine whether EuroChem made sales in the home market below its cost of production because natural gas is an important raw-material input into solid urea and prices in the Russian natural gas market are distorted. In the EuroChem Cost-Allegation Memo, we found that “the evidence on the record indicates that the Russian natural gas sector is still, as a whole, in the early stages or reform and is a sector where prices may be based neither on market principles nor on long-term cost recovery” and, “{b}ecause of these potential market distortions in the gas segment, further scrutiny of EuroChem's gas costs is warranted.” See EuroChem Cost-Allegation Memo at 9.

On September 19, 2007, we sent a letter to interested parties soliciting comments on whether and how to adjust EuroChem's natural-gas costs. On November 5, 2007, we received comments form the government of The Russian Federation and on November 7, 2007, we received comments from the petitioner and from EuroChem. We received rebuttal comments from EuroChem on November 19, 2007, and from the petitioner on December 7, 2007.

We continue to consider the comments made by interested parties, some of which came in as recently as December 7, 2007. Due to the complexity of this issue, we are still in the process of analyzing all of the data and arguments and, thus, we have not had an opportunity to perform the cost test for these preliminary results. Because we did not perform the cost test and because we found contemporaneous home-market matches of merchandise identical to the U.S. sale, we did not use EuroChem's cost-of-production or constructed-value (CV) information in calculating the margin for these preliminary results of new-shipper review.

Before we issue the final results of this new-shipper review, we will issue a decision memorandum with respect to the issue of natural gas. At that point, we will perform the cost test on EuroChem's home-market sales and, if appropriate, recalculate EuroChem's margin. We will also incorporate the CV, if necessary, into our margin recalculation. We will then disclose our calculations to interested parties and we will provide all interested parties with adequate time to comment on this issue.

C. Level of Trade

In accordance with section 773(a)(1)(B) of the Act, to the extent practicable, we determine normal value based on sales in the comparison market at the same level of trade as export price. The normal-value level of trade is that of the starting-price sales in the comparison market or, when normal value is based on constructed value, that of the sales from which we derive selling expenses, general and administrative expenses, and profit. See 19 CFR 351.412(C)(1)(iii). For export price, the U.S. level of trade is also the level of the starting-price sale, which is usually from the exporter to the unaffiliated U.S. customer. See 19 CFR 351.412(c)(1)(i).

To determine whether normal-value sales are at a different level of trade than export-price sales, we examine stages in the market process and selling functions along the chain of distribution between the producer and the unaffiliated customer. If the comparison-market sales are at a different level of trade and the difference affects price comparability, as manifested in a pattern of consistent price differences between the sales on which normal value is based and comparison-market sales at the level of trade of the export transaction, we make a level-of-trade adjustment under section 773(a)(7)(A) of the Act.

EuroChem claimed that is sold solid urea at a single level of trade in its home market. Specifically, EuroChem performed the same selling process and functions for all of its home-market sales. After analyzing the data on the record with respect to these functions, we find that EuroChem made all home-market sales at a single marketing stage (i.e., one level for trade) in the home market. In addition, because EuroChem only reported one U.S. sale during the POR, we find that there is a single marketing stage (i.e., one level of trade) in the U.S. market. Furthermore, because EuroChem performed different levels of personnel training/exchange, distributor/dealer training, order input/processing, direct sales, personnel and sales/marketing support for home-market sales than for the U.S. sale, we find that EuroChem's U.S. sale was made at a different level of trade than its home-market sales. See, e.g., Notice of Final Determination of Sales at Less Than Fair Value: Certain Cut-to-Length Carbon Steel Plate from South Africa, 62 FR 61731, 61732 (November 19, 1997), and Ball Bearings and Parts Thereof from France, Germany, Italy, Japan, Singapore, and the United Kingdom: Preliminary Results of Antidumping Duty Administrative Reviews and Intent to Rescind Review in Part, 72 FR 31271, 31276 (June 6, 2007) (unchanged in final, 72 FR 58053 (October 12, 2007)).

Although the level of trade of EuroChem's home-market sales is different than the level of trade of its U.S. sale, we are unable to make a determination that there is a pattern of price differences between the levels of trade because there is only one level of trade in the home market. Furthermore, because there is no home-market level of trade which corresponds to the U.S. level of trade, we are unable to quantify a level-of-trade adjustment. Accordingly, we are unable to make a level-of-trade adjustment. See, e.g., Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof From France, Germany, Italy, Japan, Singapore, and the United Kingdom; Final Results of Antidumping Duty Administrative Reviews. 62 FR 2081, 2106 (January 15, 1997).

D. Calculation of Normal Value

We based normal value on the starting prices to home-market customers. Pursuant to section 773(a)(6)(B)(ii) of the Act, we deducted inland-freight expenses EuroChem incurred on its home-market sales. Pursuant to section 773(a)(6)(C)(iii) of the Act, we made circumstance-of-sale adjustments for imputed credit expenses. Pursuant to section 773(a)(6) of the Act, we deducted home-market packing costs and added U.S. packing costs. Because we calculated normal value using sales of similar merchandise, we also made adjustments for differences in cost attributable to differences in physical characteristics of the merchandise pursuant to section 773(a)(6)(C)(ii) of the Act and 19 CFR 351.411.

Verifications

We conducted a sales verfication of EuroChem from October 22, 2007, through October 24, 2007. We have made changes, as appropriate, to EuroChem's data to reflect our verification findings. See the sales verification report dated November 13, 2007, and the computer programs attached to the preliminary results analysis memorandum dated December 17, 2007, for the specific changes we made. In addition, we intend to conduct a verfication of EuroChem's cost submission after we issue these preliminary results.

Preliminary Results of Review

As a result of this review, we preliminarily determine that a dumping margin of 0.00 percent exists for EuroChem for the period July 1, 2006, through December 31, 2006.

Extension of Time Limit for Final Results of the New-Shipper Review

Section 751(a)(2)(B)(iv) of the Act requires the Department to issue the final results of a new-shipper review of an antidumping duty order within 90 days after the date the preliminary determination is issued. The Act provides further that, if the case is extraordinarily complicated, the Department may extend the 90-day period to 150 days.

We determine that this new-shipper review is extraordinarily complicated and that it is not possible to complete the final results within 90 days of issuance of these preliminary results. Specifically, we find that the issues associated with whether and how to adjust EuroChem's natural-gas costs are extraordinarily complicated.

Therefore, in accordance with section 751(a)(2)(B)(iv) of the Act and 19 CFR 351.214(i)(2), we are extending the time period for issuing the final results of this review by 60 days to May 15, 2008.

Public Comment

We will disclose the documents resulting from our analysis to parties in this review within five days of the date of publication of this notice. Any interested party may request a hearing within 30 days of the publication of this notice in the Federal Register. If a hearing is requested, the Department will notify interested parties of the hearing schedule.

Interested parties are invited to comment on the preliminary results of this review. Because we have not yet made a determination with respect to the treatment of costs for natural gas, we will notify interested parties of the schedule for filing case briefs and rebuttal briefs after we issue the decision memorandum, which will include an explanation of our decision, a cost calculation, sales-below-cost test, and margin recalculation.

We intend to issue the final results of this new-shipper review, including the results of our analysis of issues raised in the written comments, within 150 days after the date on which the preliminary results are issued. See 19 CFR 351.214(I)(1).

Assessment Rates

The Department shall determine, and U.S. Customs and Border Protection (CBP) shall assess, antidumping duties on all appropriate entries, in accordance with 19 CFR 351.212. The Department will issue assessment instructions for EuroChem directly to CBP 15 days after the date of publication of the final results of this new-shipper review.

Because we found no margin for the U.S. sale subject to this new-shipper review, we preliminarily intend to instruct CBP to liquidate the entry without regard to antidumping duties. If we calculate a margin for the U.S. sale subject to this review for final results of review, because we have entered the value of EuroChem's U.S. sale, we will calculate an importer-specific assessment rate based on the ratio of the total amount of antidumping duties calculated for the examined sale to the total entered value of the sale pursuant to 19 CFR 351.212(b)(1).

The Department clarified its “automatic assessment” regulation on May 6, 2003 (68 FR 23954). This clarification applies to entries of subject merchandise during the POR produced by EuroChem where EuroChem did not know that its merchandise was destined for the United States. In such instances, we will instruct CBP to liquidate unreviewed entries at the all-others rate if there is no rate for the intermediate company(ies) involved in the transaction. For a full discussion of this clarification, see Antidumping and Countervailing Duty Proceedings: Assessment of Antidumping Duties, 68 FR 23954 (May 6, 2003).

Cash-Deposit Requirements

The following cash-deposit requirements will be effective 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 the new-shipper review, as provided by section 751(a)(2)(C) of the Act: (1) The cash-deposit rate for EuroChem (i.e., for subject merchandise both manufactured and exported by EuroChem) will be that established in the final results of this review, except if the rate is less than 0.50 percent, and therefore, de minimis within the meaning of 19 CFR 351.106(c)(1), in which case the cash-deposit rate will be zero; (2) for previously reviewed or 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 less-than-fair-value (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) the cash-deposit rate for all other manufacturers or exporters will continue to be 64.93 percent, the all-others rate established in the LTFV investigation. See Urea From the Union of Soviet Socialist Republics; Final Determination of Sales at Less Than Fair Value, 52 FR 19557 (May 26, 1987). These cash-deposit rates, when imposed, shall remain in effect until further notice.

Notification to Importers

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.

We are issuing and publishing this notice in accordance with sections 751(a)(2)(B) and 777(i)(1) of the Act and 19 CFR 351.214.

Dated: December 17, 2007.

David M. Spooner,

Assistant Secretary, for Import Administration.

Footnotes

1.  We have initiated a concurrent administrative review which covers the same entry as is covered by this new-shipper review. See Initiation of Antidumping and Countervailing Duty Administrative Reviews and Request for Revocation in Part, 72 FR 48613 (August 24, 2007).