Certain In-shell Roasted Pistachios from the Islamic Republic of Iran: Preliminary Results of Countervailing Duty Administrative Review, 67453-67455 [05-22145]

Agencies

• DEPARTMENT OF COMMERCE
• International Trade Administration

[Federal Register Volume 70, Number 214 (Monday, November 7, 2005)]
[Notices]
[Pages 67453-67455]
From the Federal Register Online via the Government Printing 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.

[[Page 67455]]

    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