[Federal Register Volume 60, Number 83 (Monday, May 1, 1995)]
[Notices]
[Pages 21067-21068]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-10638]
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DEPARTMENT OF COMMERCE
[A-429-601]
Solid Urea From the German Democratic Republic; Preliminary
Results of Changed Circumstances Review and Initiation of Changed
Circumstances Antidumping Duty Administrative Review
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
ACTION: Notice of preliminary results of changed circumstances review
and initiation of changed circumstances antidumping duty administrative
review.
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SUMMARY: On February 12, 1992, the Department of Commerce (the
Department) published in the Federal Register (57 FR 5130) a notice of
initiation of a changed circumstances review to examine the effect, if
any, that the reunification of Germany (by combination of the former
German Democratic Republic (GDR) and the Federal Republic of Germany
(FRG)) had on the antidumping duty order covering solid urea from the
former GDR (53 FR 2636). Specifically, we reviewed the order's
applicability to post-unification shipments of the subject merchandise
from producers located in the pre-unification territory of the FRG. The
Department preliminarily determines to maintain the order on solid urea
from the five German states (Brandenburg, Mecklenburg-Vorpommern,
Saxony, Saxony-Anhalt, and Thuringia (plus any other territory included
in the former GDR)) that formerly constituted the GDR (hereinafter
``the Five States'') and to allow entry of shipments from the pre-
unification territory of the FRG (the remaining German states) without
regard to antidumping duties. We have also determined that there is
good cause for conducting a second changed circumstances review to
calculate a new cash deposit rate using a market economy analysis for
any shipments of solid urea from the Five States occurring after
October 2, 1990 and before the effective date of this notice.
EFFECTIVE DATE: May 1, 1995.
FOR FURTHER INFORMATION CONTACT:
Wendy Frankel, Office of Antidumping Compliance, Import Administration,
International Trade Administration, U.S. Department of Commerce, 14th
and Constitution Avenue NW., Washington, D.C. 20230.
SUPPLEMENTARY INFORMATION:
Background
On July 14, 1987, the Department published in the Federal Register
(53 FR 2636) an antidumping duty order on solid urea from the GDR that
established a cash deposit rate of 44.80 percent. On October 3, 1990,
the GDR and the pre-unification territory of the FRG were unified into
the single jurisdiction of the Federal Republic of Germany. On October
1, 1990, the U.S. Customs Service issued instructions that it would be
appropriate to treat goods that would have been considered products
from the former GDR, and were entered or withdrawn from warehouse for
consumption on or after October 3, 1990, as products of the unified FRG
for customs purposes. In response, on October 10, 1990, the Department
instructed the U.S. Customs Service to suspend liquidation of all
entries of solid urea from the unified FRG but not to collect cash
deposits on solid urea from any company located in what was the pre-
unification territory of the FRG. Thus, entries of solid urea from the
pre-unification territory of the FRG were suspended at what was in
effect a zero cash deposit rate. We further instructed U.S. Customs
officials to continue collecting cash deposits from manufacturers
located in what had been the GDR.
On February 12, 1992, the Department published in the Federal
Register (57 FR 5130) the initiation of a changed circumstances review
on solid urea from the former GDR (Notice of Initiation). At the time
of initiation, companies producing solid urea in the pre-unification
territory of the FRG were shipping to the United States. Accordingly,
the Department initiated its review to determine whether the order on
solid urea from the former GDR is applicable to shipments from
producers located in the pre-unification territory of the FRG.
Scope of the Review
Imports covered by this review are those of solid urea. At the time
of the publication of the antidumping duty order, such merchandise was
classifiable under item 480.30 of the Tariff Schedules of the United
States Annotated (TSUSA). This merchandise is currently classified
under the Harmonized Tariff Schedule of the United States (HTS) item
number 3102.10.00. These TSUSA and HTS item numbers are provided for
convenience and Customs purposes only. The written description remains
dispositive.
Analysis
Although the Department normally administers antidumping
proceedings on a country-by-country basis, neither the statute, the
regulations, nor the GATT expressly require such an approach. Indeed,
as the Department stated in connection with the special circumstances
surrounding the breakup of the Soviet Union and its potential effect on
the then-pending antidumping duty investigation concerning uranium, the
focus of the law is on merchandise, not countries. See Postponement of
Preliminary Antidumping Duty Determination; Uranium from the Former
Union of Soviet Socialist Republics (USSR), 57 FR 11064 (1992)
(incorporating by reference, memorandum from F. Sailer to A. Dunn dated
March 24, 1992); see also Techsnabexport, Ltd. v. United States, 802 F.
Supp. 469, 471-72 (Ct. Int'l Trade 1992).
In the present case, there are special circumstances that justify
maintaining the subject order on the Five States, but not on the
remaining German states. The geopolitical entity that was known as
[[Page 21068]] the GDR no longer exists. On October 3, 1990, the former
GDR and the pre-unification territory of the FRG were unified into the
single jurisdiction of the FRG. However, no less-than-fair-value (LTFV)
investigation or injury test covering solid urea has been conducted for
producers located in the pre-unification territory of the FRG. Thus,
expansion of the order to the territory of the unified FRG would raise
serious legal questions under the GATT and U.S. law--both regimes
contemplate the assessment of antidumping duties only after injury and
LTFV determinations that provide affected parties with certain
procedural safeguards, including adequate notice and the opportunity to
comment.
By maintaining the order on solid urea from the Five States, we
believe we are reaching a result that is consistent with U.S. law and
our international obligations. First, this result comports with the
holding in the Techsnabexport case. Specifically, it preserves,
notwithstanding the change in political borders, the original
geographic scope of the order. 802 F. Supp. at 472-74. Second, as noted
above, nothing in the GATT or U.S. law expressly precludes the
maintenance of a region- or province-specific order where, as here, the
country originally subject to the order has combined with another
country. Expansion of the order to cover all shipments from the unified
FRG, on the other hand, would subject producers to antidumping duties
on merchandise which was never covered by injury and LTFV
determinations at the International Trade Commission and the
Department. Finally, revocation of the order, while avoiding the
concerns raised by a country-wide order, would, as a result of a change
in government or political borders, deprive the petitioners of relief
they sought and obtained. As in the Techsnabexport case, 802 F. Supp.
at 472, where the breakup of the Soviet Union did not justify the
termination of the then-pending antidumping duty investigation of
uranium, the change in government and political borders in this case
does not provide a basis for revocation of the order.
Preliminary Results
According, due to the unique circumstances of this case, the
Department preliminarily determines that the appropriate action is to
maintain the order and the existing 44.80 percent cash deposit rate on
solid urea from the five German states that formerly constituted the
GDR (Brandenburg, Mecklenburg-Vorpommern, Saxony, Saxony-Anhalt, and
Thuringia (plus any other territory included in the former GDR)) and to
allow entry of shipments from the pre-unification territory of the FRG
without regard to antidumping duties.
Initiation of Changed Circumstances Antidumping Duty Administrative
Review
Pursuant to section 751(b) of the Tariff Act of 1930, as amended
(the Tariff Act) and 19 CFR 353.22(f), the Department may review a
determination whenever changed circumstances are sufficient to warrant
such a review. In the instant case, the current cash deposit rate is
based upon the non-market economy analysis provided for in section
773(c) of the Act. However, the Department has determined that as of
October 3, 1990, producers located in the five German states that
formerly constituted the GDR have been operating in a market-oriented
economy. See Final Affirmative Countervailing Duty Determinations;
Certain Steel Products from Germany, 58 FR 37315, 37324 (July 9, 1993).
Therefore, the Department is initiating a second changed
circumstances review pursuant to section 751(b) of the Tariff Act and
19 CFR 353.22(f). In the next review, the Department will calculate a
new cash deposit rate using a market economy analysis for any shipments
of solid urea from the Five States occurring after October 2, 1990 and
before the effective date of this notice. See Antidumping Duty Order
and Initiation of a Changed Circumstances Antidumping Duty
Administrative Review: Certain Cut-to-Length Carbon Steel Plates from
Poland, 58 FR 44166 (1993) (change from a non-market to market economy
justified a changed circumstances review to calculate a new cash
deposit rate).
Suspension of Liquidation
The following deposit requirements will be effective for all
shipments of the subject merchandise entered, or withdrawn from
warehouse, for consumption on or after publication date of the final
results of this changed circumstances review, as provided for by
section 751(a)(1) of the Tariff Act. A cash deposit of estimated
antidumping duties shall be required on shipments of the subject
merchandise as follows:
(1) No cash deposit will be required for shipments of solid urea
produced by firms located in the pre-unification territory of the FRG.
(2) The existing 44.80 percent cash deposit rate will remain in
effect, pending the results of the second changed circumstances review,
for shipments of solid urea produced by firms located in the five
German states that formerly constituted the GDR (Brandenburg,
Mecklenburg-Vorpommern, Saxony, Saxony-Anhalt, and Thuringia (plus any
other territory included in the former GDR)).
Public Comment
Case briefs and/or written comments from interested parties on the
preliminary results of this changed circumstances review (initiated
Feb. 12, 1992) may be submitted no later than 25 days after the date of
publication of this notice. Rebuttal briefs and rebuttals to written
comments, limited to issues raised in those comments, may be filed no
later than 32 days after the date of publication. All written comments
shall be submitted in accordance with 19 CFR 353.31(e) and shall be
served on all interested parties on the Department's service list in
accordance with 19 CFR 353.31(g). Interested parties may also request a
hearing within ten days of the date of publication of this notice. Any
hearing, if requested, will be held no later than 39 days after the
date of publication of this notice. The Department will publish the
final results of this changed circumstances review, including the
results of its analysis of any written comments.
This administrative review and notice are in accordance with
section 751(b) of the Tariff Act and 19 CFR 353.22(f).
Dated: April 21, 1995.
Paul L. Joffe,
Deputy Assistant Secretary for Import Administration.
[FR Doc. 95-10638 Filed 4-28-95; 8:45 am]
BILLING CODE 3510-DS-M
