03-17629. 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.

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 [phone] or [phone], 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 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.

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).

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 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.

Producer/Exporter	Cash deposit rate
Rafsanjan Pistachio Producers Cooperative (RPPC)	60.77 percent ad valorem.

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.

Producer/Exporter	Cash deposit rate
Rafsanjan Pistachio Producers Cooperative (RPPC)	49.77 percent ad valorem.

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.

Comment 2: Export Certificate Voucher Program.

Comment 3: Price Supports Program.

Footnotes

1.  Petitioners include the California Pistachios Commission and its members and a domestic interested party, Cal Pure Pistachios, Inc.

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.