Antidumping: Silicomanganese From Ukraine; Suspension of Investigation

DEPARTMENT OF COMMERCE

International Trade Administration

[A-823-805]

Antidumping: Silicomanganese From Ukraine; Suspension of

Investigation

AGENCY: Import Administration, International Trade Administration,

Department of Commerce.

ACTION: Notice.

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SUMMARY: The Department of Commerce (the Department) has suspended the

antidumping investigation involving silicomanganese from Ukraine. The

basis for the suspension is an agreement by the Government of Ukraine

to restrict the volume of direct or indirect exports of the subject

merchandise to the United States in order to prevent the suppression or

undercutting of price levels of United States domestic silicomanganese.

EFFECTIVE DATE: October 31, 1994.

FOR FURTHER INFORMATION CONTACT: James Doyle or Robert Hamilton, Office

of Agreements Compliance, Import Administration, International Trade

Administration, U.S. Department of Commerce, 14th & Constitution Avenue

N.W., Washington, D.C. 20230; telephone (202) 482-0172 or (202) 482-

1324, respectively.

SUPPLEMENTARY INFORMATION:

Background

On December 2, 1993, the Department initiated an antidumping

investigation under section 732 of the Tariff and Trade Act of 1930,

(the Act), as amended, to determine whether imports of silicomanganese

from Ukraine are being or are likely to be sold in the United States at

less than fair value (58 FR 64554, December 8, 1993).

In early December 1993, we notified the International Trade

Commission (ITC) of our action. On December 27, 1993, the ITC issued an

affirmative preliminary injury determination.

On June 17, 1994, we published a preliminary determination that

imports of silicomanganese from Ukraine were being sold in the United

States at less than fair value (LTFV)(59 FR 14851).

Case History

Since the preliminary determination and postponement of the final

determination of this investigation on June 10, 1994 (59 FR 14851, June

17, 1994), the following events have occurred:

On June 20, 1994, the petitioner, Elkem Metals Company and the Oil,

Chemical, & Atomic Workers, Local 3-639, (petitioners) alleged that the

Department had made significant ministerial errors in the preliminary

determination calculations. We agreed in part with the allegation, but

determined that the ministerial errors that had been made were not

significant in accordance with 353.15(g)(4)(ii) of the Department's

proposed regulations. Therefore, we did not publish an amended

preliminary determination.

On July 8, 1994, the petitioners alleged that the Department, in

determining whether the errors were significant, had looked only at

correcting the arithmetic errors and had not carried forward all of the

corrected numbers to the final spreadsheet. The petitioners alleged

that the carrying forward of arithmetical corrections to the

spreadsheets would constitute a significant ministerial error, as it

would result in a change of more than five absolute percentage points

and more than 25 percent of the dumping margin calculated in the

original preliminary determination. The Department agreed that this

error had been made, and that the recalculation would result in a

significant change to the margin. Therefore, on July 19, 1994, the

Department amended the preliminary determination (59 FR 18167, July 26,

1994).

We conducted the factory and sales verifications of the Nikopol

Ferroalloys Plant (Nikopol) and the Zaporozhye Ferroalloys Works

(Zaporozhye) during the period September 26 through 30, 1994.

On September 30, 1994, the Department initialled a proposed

suspension agreement with the Government of Ukraine. By October 25,

1994, the Department had received comments regarding the proposed

suspension agreement from petitioners and respondents.

Petitioners submitted a case brief on October 11, 1994.

On October 31, 1994, the Department and the Government of Ukraine

signed the final suspension agreement.

Scope of Investigation

The merchandise covered by this investigation is silicomanganese.

Silicomanganese, which is sometimes called ferrosilicon manganese, is a

ferroalloy composed principally of manganese, silicon, and iron, and

normally containing much smaller proportions of minor elements, such as

carbon, phosphorous and sulfur. Silicomanganese generally contains by

weight not less than four percent iron, more than 30 percent manganese,

more than eight percent silicon and not more than three percent

phosphorous. All compositions, forms and sizes of silicomanganese are

included within the scope of this investigation, including

silicomanganese slag, fines and briquettes. Silicomanganese is used

primarily in steel production as a source of both silicon and

manganese. This investigation covers all silicomanganese, regardless of

its tariff classification. Most silicomanganese is currently

classifiable under subheading 7202.30.0000 of the Harmonized Tariff

Schedule of the United States (HTSUS). Some silicomanganese may also

currently be classifiable under HTSUS subheading 7202.99.5040. Although

the HTSUS subheadings are provided for convenience and customs

purposes, our written description of the scope of this investigation is

dispositive.

In accordance with section 733(f) of the Act, we will notify the

ITC of this determination. In addition, if the investigation is

continued, we will make all nonprivileged and non-proprietary

information relating to these investigations available to the ITC.

Suspension of Investigations

The Department consulted with the parties to the proceeding and has

considered the comments with respect to the initialled suspension

agreement. The signed suspension agreement reflects the decisions of

the Department with respect to many of the issues parties raised in

their comments.

We have determined that the agreement will prevent the suppression

or undercutting of price levels of United States silicomanganese, that

the agreement can be monitored effectively, and that the agreement is

in the public interest. We find, therefore, that the criteria for

suspension of an investigation pursuant to section 734 of the Act have

been met. The terms and conditions of the agreement, signed on October

31, 1994, are set forth in Annex 1 to this notice.

Consistent with section 734(f)(2)(A) of the Act, the suspension of

liquidation of all entries, entered or withdrawn from warehouse for

consumption, of silicomanganese from Ukraine, effective, March 19,

1994, as directed in our ``Notice of Preliminary Determination of Sales

at Less Than Fair Value and Postponement of Final Determination:

Silicomanganese From Ukraine,'' is hereby terminated. Any cash deposits

on entries of silicomanganese from Ukraine pursuant to that suspension

of liquidation shall be refunded and any bonds shall be released.

Upon receipt of a request during the anniversary month of the

publication of this suspension agreement, the Department will conduct

an administrative review as provided in section 751 of the Act.

On November 1, 1994, petitioners and respondents both requested

that the Department continue the investigation in accordance with

section 734(g) of the Act.

This notice is published pursuant to section 734(f)(1)(A) of the

Act and 19 CFR 353.18.

Dated: November 21, 1994.

Susan G. Esserman,

Assistant Secretary for Import Administration.

I have determined pursuant to section 734(l) of the Act that the

provisions of this suspension agreement prevent suppression or

undercutting of price levels of domestic products with respect to

silicomanganese exported, directly or indirectly, from Ukraine to the

United States. Furthermore, I have determined, in accordance with

section 734(d) of the Act, that this suspension agreement is the in

public interest and that the agreement can be monitored effectively.

Dated: October 31, 1994.

Susan G. Esserman,

Assistant Secretary for Import Administration.

AGREEMENT SUSPENDING THE ANTIDUMPING INVESTIGATION ON SILICOMANGANESE

FROM UKRAINE

For the purpose of encouraging free and fair trade in

silicomanganese, establishing more normal market relations, pursuant to

the provisions of Section 734(l) of the U.S Tariff Act of 1930, as

amended (19 U.S.C. 1673c) (the ``Act''), the United States Department

of Commerce (``the Department'') and the Government of Ukraine enter

into this suspension agreement (``the Agreement'').

The Department finds that this Agreement is in the public interest;

that effective monitoring of this Agreement by the United States is

practicable; and that this Agreement will prevent the suppression or

undercutting of price levels of United States domestic silicomanganese

products by imports of the merchandise subject to this Agreement.

On the basis of this Agreement, the Department shall suspend its

antidumping investigation with respect to silicomanganese produced in

Ukraine, subject to the terms and provisions set forth below. Further,

the Department will instruct the U.S. Customs Service to terminate the

suspension of liquidation and to release any cash deposit or bond

posted on the products covered by this Agreement as of the effective

date of this Agreement.

I. Basis for the Agreement

In order to prevent the suppression or undercutting of price levels

of United States domestic silicomanganese, the Government of Ukraine

will restrict the volume of direct or indirect exports to the United

States of silicomanganese products from all producers/exporters of

silicomanganese products in Ukraine subject to the terms and provisions

set forth below.

II. Definitions

For purposes of this Agreement, the following definitions apply:

(a) ``Date of Export'' for imports into the United States

accompanied by an export license and certificate of origin of the

merchandise subject to this Agreement shall be considered the date the

export license was endorsed.

(b) ``Parties to the Proceeding'' means any interested party,

within the meaning of 353.2(k) of the Department's regulations, which

actively participates through written submissions of factual

information or written argument.

(c) ``Indirect Exports'' means arrangements as defined in Section

IV.D of this Agreement and exports from Ukraine through one or more

third countries, whether or not such export is sold in one or more

third country prior to importation into the United States.

(d) For purposes of this Agreement, ``United States'' shall

comprise the customs territory of the United States of America (the 50

States, the District of Columbia and Puerto Rico) and foreign trade

zones located in the territory of the United States of America.

(e) ``For consumption'' means use in the production of steel, cast

iron or medium-carbon ferromanganese. The material shall not be loaned

or swapped. The material shall not be resold except as a result of

force majeure.

(f) ``End-user'' means an entity, such as a steel, cast iron or

medium-carbon ferromanganese producer, which consumes silicomanganese

as defined in Section II(e).

(g) ``Reference Price'' means the price calculated by the

Department, as described in Section IV.B, on a monthly basis to be used

as a floor price for sales of Ukrainian silicomanganese into the United

States.

III. Product Coverage

The merchandise covered by this Agreement is silicomanganese.

Silicomanganese, which is sometimes called ferrosilicon manganese, is a

ferroalloy composed principally of manganese, silicon, and iron, and

normally containing much smaller proportions of minor elements, such as

carbon, phosphorous and sulfur. Silicomanganese generally contains by

weight not less than 4% iron, more than 30% manganese, more than 8%

silicon and not more than 3% phosphorous. All compositions, forms and

sizes of silicomanganese are included within the scope of this

Agreement, including silicomanganese slag, fines and briquettes.

Silicomanganese is used primarily in steel production as a source of

both silicon and manganese.

This agreement covers all silicomanganese, regardless of its tariff

classification. Most silicomanganese is currently classifiable under

subheading 7202.30.0000 of the Harmonized Tariff Schedule of the United

States (HTSUS). Some silicomanganese may also be classifiable under

HTSUS subheading 7202.99.5040. Although the HTSUS subheading is

provided for convenience and customs purposes, our written description

of the scope is dispositive.

V. Export Limits

A. The export limits of this Agreement shall be effective for the

periods November 1 through October 31 (the ``Relevant Period'').

The Government of Ukraine will restrict the volume of direct or

indirect exports of Ukrainian silicomanganese on or after the effective

date of this Agreement to the United States and the transfer or

withdrawal from inventory (consistent with the provisions of Section

IV.C) of the merchandise subject to this Agreement in accordance with

the export limits established annually by the Department based on the

methodology set forth in Appendix A.

Export limits are expressed in terms of metric tons of

silicomanganese.

Export limits are applied on the basis of ``Date of Export'', as

defined in Section II.

B. To qualify for delivery directly or indirectly to the United

States, the contract price must be at a price at or above the reference

price in effect on the date the contract was signed. The relevant price

comparison shall be made at comparable delivery terms.

The reference price shall be calculated consistent with the

methodology described in Appendix C, and shall be releasable to the

parties to the proceeding under administrative protective order (APO).

The reference price shall be calculated based on published data

available to the Department as of the 25th day of each month. The

reference price shall be releasable to the parties to the proceeding

under APO at most five days later. In the event that the release date

falls on a non-business day, the Department may release the reference

price earlier, but in no case shall release the reference price later

than the next business day. The reference price will be in effect for

the next 30 calendar days or complete month, whichever terminates

later. Following the initial calculation of the reference price, it is

understood that in subsequent periods the Department will apply

consistently the calculation methodology used to determine reference

prices.

At any time during a Relevant Period, a delivery may be made for

the entire amount of quota remaining for that Relevant Period. Any

amount delivered during a Relevant Period shall not, however, when

cumulated with all prior deliveries in such Relevant Period, exceed the

annual quota for that Relevant Period.

C. Any inventories of Ukrainian-origin silicomanganese, currently

held by Ukraine in the United States and imported into the United

States between the period beginning on or after March 19, 1994, (the

date corresponding to the Department's critical circumstances

determination) through the effective date of this Agreement will be

subject to the following conditions:

Such inventories will not be transferred or withdrawn from

inventory for consumption in the United States without an export

license and certificate of origin issued by the Government of Ukraine.

A request for an export license and certificate of origin under this

provision shall be accompanied by a report specifying the original date

of export, the date of entry into the United States, the identity of

the original exporter and importer, the customer, a complete

description of the product (including lot numbers and other available

identifying documentation), and the quantity expressed in metric tons.

Any amounts authorized by Ukraine issuing an export license under

this provision shall be counted toward the export limit for the covered

products for the period during which the export license and certificate

of origin were issued for the product that is transferred or withdrawn.

The volume shall be determined on the basis of metric tons authorized

by Ukraine as set forth in the export license.

In the event that there is a surge of sales of Ukrainian-origin

silicomanganese from such inventory currently held in the United

States, the Department will decrease the export limits to take into

account such sales.

D. Any arrangement involving the exchange, sale, or delivery of

silicomanganese products from Ukraine will be counted towards export

limits under this Agreement to the degree it can be shown to have

resulted in the sale or delivery in the United States of

silicomanganese products from a country other than Ukraine.

E. Where covered products are imported into the United States and

are subsequently re-exported or further processed and re-exported, the

export limits for the entered product shall be increased by the amount

of metric tons re-exported. This increase will be applicable to the

Relevant Period corresponding to the time of such re-export. This

increase will be applied only after presentation to the Department and

opportunity for verification of such evidence demonstrating original

importation, any further processing, and subsequent exportation.

F. Export limits established for any of the identified Relevant

Periods may not be used after October 31 of the corresponding Relevant

Period, except that limits not so used may be used during the first

three months of the respective following period up to a maximum of 15

percent of the export limit for the current Relevant Period.

Export limits for the Relevant Periods may be used as early as

September 1 of the previous period within the limit of 15 percent of

the export limit for the previous Relevant Period.

V. Confirmation of Deliveries

In recognition of the requirements of Section 734(d)(2) and (l)(1),

the Department and the Government of Ukraine agree that any sales

contract with an end-user to be used for the purpose of delivering

silicomanganese under this Agreement must be submitted to the Office of

Agreements Compliance, U.S. Department of Commerce, and confirmed by

the Department in accordance with this Section. To be confirmed for

delivery under this Agreement, the party submitting the contract must

provide the following information, which shall be releasable under APO

at the time the Department approves the delivery:

The date and terms, including price, of the contract with

the end-user pursuant to which the delivery(ies) will be made;

A description of the material being imported;

Identification of the Ukrainian supplier of the

delivery(ies);

The estimated place and date on which the imports will

enter the customs territory of the United States;

The export license and certificate of origin number(s)

under which the delivery(ies) will be exported;

A copy of the contract with the end-user pursuant to which

the delivery(ies) are to be made;

An estimated delivery schedule;

Certification from the end-user that it will consume the

imported product in the United States in accordance with Section II(e)

of this Agreement;

Certification that the Department will be provided with

proof of payment for every delivery received by the end-user; and

Any other information that the Department, after

consultation with the Government of Ukraine, determines necessary to

confirm that the requirements of this Agreement have been met.

As soon as possible, but within 15 days of a complete confirmation

request being filed with the Import Administration's Central Records

Unit, the Department will confirm that the shipment qualifies for

delivery under the Agreement or will state specifically why it does not

so qualify. In making such determination, the Department will limit its

review to determining (i) whether the delivery amount under review

comes within the amount of quota remaining for the Relevant Period, and

(ii) whether the sales price for the delivery is at or above the

reference price that was in effect on the date the contract was signed.

Upon confirmation, the Department will subtract the total amount of

the delivery of Ukrainian-origin silicomanganese from the amount of

quota remaining for that Relevant Period. The Office of Agreements

Compliance shall make publicly available, on a current and continuous

basis, the amount of annual quota that remains available for the

Relevant Period. If the Department fails to respond to a confirmation

request within 15 days, the request shall be deemed to be approved

notwithstanding any other provisions of the Agreement.

Further, if such silicomanganese is not immediately delivered to

the end-user, the following conditions must be met:

(1) The material will be maintained in a separate account for

imports of Ukrainian silicomanganese under this Agreement;

(2) The importer (if the owner of material, or the person for whom

or on whose behalf the material is imported) or his consignee,

certifies to the Department that such material will not be sold,

loaned, swapped, or utilized other than for delivery to the U.S. end-

user for consumption in accordance with Section II(e) of this

Agreement;

(3) The material enters the U.S. but shall not be liquidated until

such time as it is delivered to the end-user; and

(4) The importer certifies in writing to make available to the

Department, each month, a full accounting of all deliveries from its

dedicated account (including each delivery from the account, to whom

delivery was made, pursuant to which contract, in what quantity, and

confirmation of the status of any transaction that occurred from the

account).

Prior to U.S. Customs clearance of the Ukrainian-origin

silicomanganese, the importer (if the owner of material, or the person

for whom or on whose behalf the silicomanganese is imported) will

notify the Department of the date of import, the quantity and declared

value of the shipment, the vessel name, the port of entry, and the

individual contract pursuant to which the delivery is being made. If

such information is consistent with a pre-confirmed delivery and the

notice of request for delivery from the end-user, the Department will

notify the U.S. Customs Service within five business days. The importer

will provide certification to U.S. Customs at time of import that the

material will be used only for a sale subject to the conditions of the

Agreement and will be consumed in accordance with Section II(e) of this

Agreement. The Department will instruct Customs to promptly release the

shipment once the Department has confirmed that Customs has received

the foregoing notification and certification.

VI. Export Licenses/Certificates

A. The Government of Ukraine will restrict, by means of export

licenses and certificates of origin, the volume of direct or indirect

exports of Ukrainian silicomanganese.

The Government of Ukraine will ensure that the price for the

merchandise when exported from the territory of Ukraine is at or above

the reference price as calculated pursuant to Appendix C, adjusted for

expenses associated with the merchandise reaching the United States.

The Government of Ukraine shall take action, including the

imposition of penalties, as may be necessary to make effective the

obligations resulting from the price restrictions, export licenses and

certificates of origin. The Government of Ukraine will inform the

Department of any violations concerning the price restrictions, export

licenses and/or certificates of origin which come to its attention and

the action taken with respect thereto.

The Department will inform the Government of Ukraine of violations

concerning the price restrictions, export licenses and/or certificates

of origin which come to its attention and the action taken with respect

thereto.

B. Export licenses shall be issued and certificates of origin shall

be authorized, respectively, by the Government of Ukraine for all

direct or indirect exports to the United States of the merchandise

subject to this Agreement in quantities no greater than the number of

metric tons specified by the Department under Section IV.A for each

Relevant Period.

C. Export licenses will be issued and certificates of origin will

be issued and endorsed against the export limits for Relevant Periods.

Export licenses for the Relevant Periods may be used as early as

September 1 of the previous Relevant Period within a limit of 15

percent of the export limit for the previous Relevant Period.

Export licenses issued for each Relevant Periods, may not be used

after October 31 for each subsequent year, except that export licenses

not so used may be used during the first three months of the respective

following period, up to a maximum of 15 percent of the export limit for

the current period.

D. The Government of Ukraine will require that all exports of the

merchandise subject to this Agreement shall be accompanied by an export

license (form to be agreed) and certificate of origin. The export

license shall be endorsed pursuant to a certificate of origin and

issued no earlier than one month before the day, month, and year on

which the merchandise is accepted by a transportation company, as

indicated in the bill-of-lading or a comparable transportation

document, for export. The export license will also indicate the

customer, the complete description of the product exported, country of

origin of the silicomanganese, and quantity expressed in terms of

metric tons. If any of this information is in a language other than

English, the export license and certificate of origin must also contain

an English language translation of this information.

E. The United States shall require presentation of such export

license and certificate of origin as a condition for entry into the

United States of the covered products of the merchandise subject to

this Agreement on or after the effective date of this Agreement. The

United States will prohibit the entry of such products not accompanied

by such an export license.

VII. Implementation

In order to effectively restrict the volume of exports of

silicomanganese to the United States, the Government of Ukraine agrees

to implement the following procedures:

A. Establish an export licensing and certification program for all

exports of silicomanganese from Ukraine to, or destined directly or

indirectly for consumption in, the United States.

B. Ensure compliance by all Ukrainian producers, exporters,

brokers, traders, users, and/or related parties of such silicomanganese

with all procedures established in order to effectuate this Agreement.

C. Collect information from all Ukrainian producers, exporters,

brokers, traders, users, and/or related parties of such on the

production and sale of silicomanganese.

D. Require that purchasers agree not to circumvent this Agreement,

report to Ukraine subsequent arrangements entered into for the sale,

exchange, or loan to the United States of silicomanganese purchased

from Ukraine, and include these same provisions in any subsequent

contracts involving silicomanganese purchased from Ukraine.

E. Impose strict sanctions, such as monetary damages or prohibition

from participation in the export limits allowed by the Agreement, in

the event that any Ukrainian or Ukrainian-related party does not comply

in full with all the terms of the Agreement.

VIII. Anticircumvention

A. The Government of Ukraine will take all appropriate measures

under Ukrainian law to prevent circumvention of this Agreement. It will

not enter into any arrangement for the purpose of circumventing the

export limits in Section IV of this Agreement. It will require that

purchasers agree not to circumvent this Agreement. It will require that

all purchasers report to Ukraine subsequent arrangements entered into

for the sale, exchange or loan to the United States of silicomanganese

purchased from Ukraine. It will also require that all purchasers

include the same provisions in any subsequent contracts involving

silicomanganese purchased from Ukraine.

B. In addition to the reporting requirements of Section IX of this

Agreement, the Government of Ukraine will share within 15 days of any

request from the U.S. Department of Commerce all particulars regarding

initial and subsequent arrangements of silicomanganese between Ukraine

and any party regardless of the original intended destination.

C. The Department of Commerce will accept comments from all parties

for fifteen days after the receipt of information requested under

paragraph B of this Section. The Department will determine within 45

days of the date of the information request under paragraph B whether

subject arrangements circumvent the export limits of this Agreement.

D. In addition to the above requirements, the Department shall

direct the U.S. Customs Service to require all importers of

silicomanganese into the United States, regardless of stated country of

origin, to submit at the time of entry a written statement certifying

that the silicomanganese being imported was not obtained under any

arrangement, swap, or other exchange designed to circumvent the export

limits for silicomanganese of Ukrainian origin established by this

Agreement. Where there is reason to believe that such a certification

has been made falsely, the Department will refer the matter to Customs

or the Department of Justice for further action.

E. The Department of Commerce and the Government of Ukraine will

consult regarding any arrangement determined by the Department of

Commerce to constitute circumvention of this Agreement. If the

Department determines that Ukraine and its related parties did not

actively participate in the arrangement, the Department will request

consultations with Ukraine to resolve the problem. If the problem has

not been resolved to the mutual satisfaction of both the United States

and Ukraine, the volume of the silicomanganese product involved in the

circumvention may be counted against the export limit in effect at such

time. If the Department determines that Ukraine actively participated

in the arrangement, the volume of such arrangement will be deducted

from the export limits for Ukraine.

F. If the Department of Commerce or Government of Ukraine

determines that any silicomanganese has been exported to the United

States without the required export licenses and/or certificates of

origin, Ukraine shall: (1) Thereafter prohibit any Ukraine producer,

exporter, broker, trader, user, and/or related party from supplying

silicomanganese to the customer responsible for such circumvention; (2)

impose other penalties as allowed by law; and/or (3) take other actions

to prevent such circumvention in the future.

G. Given the fungibility of the world silicomanganese market, the

Department of Commerce will take into account the following factors in

distinguishing normal silicomanganese market arrangements, swaps, or

other exchanges from arrangements, swaps, or other exchanges which

circumvent the export limits of this Agreement:

1. Existence of any verbal or written arrangements which may be

designed to circumvent the export limits;

2. Existence of any arrangement as defined in Section IV.D that was

not reported to the Department pursuant to Section IX.A;

3. Existence and function of any subsidiaries or affiliates of the

parties involved;

4. Existence and function of any historical and/or traditional

trading patterns among the parties involved;

5. Deviations (and reasons for deviation) from the above patterns,

including physical conditions of relevant silicomanganese facilities;

6. Existence of any payments unaccounted for by previous or

subsequent deliveries, or any payments to one party for merchandise

delivered or swapped by another party;

7. Sequence and timing of the arrangements;

8. Any other information relevant to the transaction or

circumstances.

H. ``Swaps'' include, but are not limited to: Ownership swaps--

involve the exchange of ownership of any type of silicomanganese

product(s), without physical transfer. These may include exchange of

ownership of silicomanganese products in different countries, so that

the parties obtain ownership of products located in different

countries; or exchange of ownership of silicomanganese products

produced in different countries, so that the parties obtain ownership

of products of different national origin.

Flag swaps--involve the exchange of indicia of national origin of

silicomanganese products, without any exchange of ownership.

Displacement swaps--involve the sale or delivery of any type of

silicomanganese product(s) from Ukraine to an intermediary country (or

countries) which can be shown to have resulted in the ultimate delivery

or sale into the United States of displaced silicomanganese products of

any type, regardless of the sequence of the transaction.

I. The Department will enter its determinations regarding

circumvention into the record of the Agreement.

IX. Monitoring

The Government of Ukraine will provide to the Department such

information as is necessary and appropriate to monitor the

implementation of and compliance with the terms of this Agreement. The

Department of Commerce shall provide semi-annual reports to the

Government of Ukraine indicating the volume of imports of the subject

merchandise to the United States, together with such additional

information as is necessary and appropriate to monitor the

implementation of this Agreement.

A. Reporting of Data

Beginning on the effective date of this Agreement, the Government

of Ukraine shall collect and provide to the Department the information

set forth, in the agreed format in Appendix B. All such information

will be provided to the Department on a semi-annual basis on June 1 and

December 1 of each calendar year, or upon request. Such information

will be subject to the verification provision identified in Section

IX.C of this Agreement.

The Department may disregard any information submitted after the

deadlines set forth in this Section or any information which it is

unable to verify to its satisfaction.

Both governments recognize that the effective monitoring of this

Agreement may require that Ukraine provide information additional to

that which is identified above. Accordingly, the Department may

establish additional reporting requirements, as appropriate, during the

course of this Agreement. The Department shall provide notice to the

Government of Ukraine of any additional reporting requirements no later

than 45 days prior to the period covered by such reporting requirements

unless a shorter notice period is mutually agreed.

B. Other Sources for Monitoring

The Department will review publicly-available data as well as

Customs Form 7501, entry summaries, and other official import data from

the Bureau of the Census, on a monthly basis, to determine whether

there have been imports that are inconsistent with the provisions of

this Agreement.

The Department will monitor Bureau of the Census IM-115

computerized records, which include the quantity and value of each

entry. Because these records do not provide other specific entry

information, such as the identity of the producer/exporter which may be

responsible for such sales, the Department may request the U.S. Customs

Service to provide such information. The Department may request other

additional documentation from the U.S. Customs Service.

The Department may also request the U.S. Customs Service to direct

ports of entry to forward an Antidumping Report of Importations for

entries of the subject merchandise during the period this Agreement is

in effect.

C. Verification

The Government of Ukraine agrees to permit full verification of all

information related to the administration of this Agreement, on an

annual basis or more frequently, as the Department deems necessary to

ensure that Ukraine is in full compliance with the terms of the

Agreement.

X. Disclosure and Comment

A. The Department shall make available to representatives of each

party to the proceeding, under appropriately-drawn administrative

protective orders consistent with the Department's Regulations,

business proprietary information submitted to the Department semi-

annually or upon request, and in any administrative review of this

Agreement.

B. Not later than 30 days after the date of disclosure under

Section IX.A, the parties to the proceeding may submit written comments

to the Department, not to exceed 30 pages.

C. During the anniversary month of this Agreement, each party to

the proceeding may request a hearing on issues raised during the

preceding Relevant Period. If such a hearing is requested, it will be

conducted in accordance with Section 751 of the Act (19 U.S.C. 1675)

and applicable regulations.

XI. Consultations

The Government of Ukraine and the Department shall hold

consultations regarding matters concerning the implementation,

operation, or enforcement of this Agreement. Such consultations will be

held each year during the anniversary month of this Agreement, except

that in the 12 months following the signing of the Agreement,

consultations will be held semi-annually. Additional consultations may

be held at any other time upon request of either the Government of

Ukraine or the Department. Emergency consultations may be held in

accordance with Section XII.A.

XII. Violations of the Agreement

A. Violation

``Violation'' means noncompliance with the terms of this Agreement

caused by an act or omission by the Government of Ukraine except, at

the discretion of the Secretary, an act or omission which is

inadvertent or inconsequential.

The Government of Ukraine will inform the Department of any

violations which come to its attention and the action taken with

respect thereto.

Imports in excess of the export limits set out in this Agreement

shall not be considered a violation of this Agreement or an indication

the Agreement no longer meets the requirements of Section 734(l) of the

Act, where such imports are minimal in volume, are the result of

technical shipping circumstances, and are applied against the export

limits of the following year.

Prior to making a determination of an alleged violation, the

Department will engage in emergency consultations. Such consultations

shall begin no later than 14 days from the day of request and shall

provide for full review, but in no event will exceed 30 days. After

consultations, the Department will provide the Government of Ukraine 10

days within which to provide comments. The Department will make a

determination within 20 days.

B. Appropriate Action

If the Department determines that this Agreement is being or has

been violated, the Department will take such action as it determines is

appropriate under Section 734(i) of the Act and Sec. 353.19 of the

Department's Regulations.

XIII. Duration

The export limits provided for in Section IV of this Agreement

shall remain in force from the effective date of this Agreement through

October 31, 1999.

The Department will, upon receiving a proper request no later than

October 31, 1998, conduct an administrative review under Section 751 of

the Act. The Department expects to terminate this Agreement and the

underlying investigation no later than October 31, 1999, as long as

Ukraine has not been found to have violated the Agreement in any

substantive manner. Such review and termination shall be conducted

consistent with Sec. 353.25 of the Department's regulations.

The Government of Ukraine may terminate this Agreement at any time

upon notice to the Department. Termination shall be effective 60 days

after such notice is given to the Department. Upon termination at the

request of the Government of Ukraine, the provisions of Section 734(i)

of the Act shall apply.

XIV. Other Provisions

A. In entering into this Agreement, the Government of Ukraine does

not admit that any sales of the merchandise subject to this Agreement

have been made at less than fair value or that such sales have

materially injured, or threatened material injury to, an industry or

industries in the United States.

B. The English language version of this Agreement shall be

controlling.

C. For all purposes hereunder, the Department and the signatory

Government shall be represented by, and all communications and notices

shall be given and addressed to:

Department of Commerce

U.S. Department of Commerce, Assistant Secretary for Import

Administration, International Trade Administration, Washington, D.C.

20230, USA

Government of Ukraine

Ministry of Foreign Economic Relations of Ukraine, Deputy Minister for

Foreign Economic Relations, 8, Lvivska Square, Kiev, GSP--655, 254655,

Ukraine

XV. Effective Date

The effective date of this Agreement suspending the antidumping

investigation on silicomanganese from Ukraine, October 31, 1994.

Signed on this thirty-first day of October 1994.

For the U.S. Department of Commerce.

Susan G. Esserman.

For the Government of Ukraine.

Valeriy L. Mazur.

Appendix A

The annual export limits for each Relevant Period will be

calculated in a two-step process. The first step, which will be

calculated only once, is the calculation of the ratio of 7,992

metric tons of silicomanganese to U.S. raw steel production in 1993.

The second step, which is to be calculated at the beginning of every

Relevant Period, is to multiply the ratio calculated in the first

step by the U.S. raw steel production forecast covering the upcoming

Relevant Period.

The Department will obtain estimates of United States raw steel

production for the purposes of this Agreement from Data Resources,

Inc.

During the life of the Agreement, the Department can, as

appropriate, select alternative sources to use in determining U.S.

raw steel production. Should the Department determine that the

identified source is no longer appropriate, the Department will give

parties at least 30 days notice of its decision.

The export limit will be announced by the Department 30 days

prior to the start of the Relevant Period.

Appendix B

In accordance with the established format, the Government of

Ukraine shall collect and provide to the Department all information

necessary to ensure compliance with this Agreement.

The Government of Ukraine will collect and maintain sales data

to the United States, in the home market, and to countries other

than the United States, on a continuous basis and provide the

prescribed information to the Department. Information for the

periods November 1 through April 30 and May 1 through October 31 for

each Relevant Period, will be provided to the Department on a semi-

annual basis on June 1 and December 1 respectively of each calendar

year, or upon request.

The Government of Ukraine will provide a narrative explanation

to substantiate all data collected in accordance with the following

formats.

Report of Inventories

Report, by location, the inventories held by Ukraine in the

United States and imported into the United States between the period

beginning March 19, 1994, through the effective date of the

Agreement.

1. Quantity: Indicate original units of measure and in metric

tons.

2. Location: Identify where the inventory is currently being

held. Provide the name and address for the location.

3. Titled Party: Name and address of party who legally has title

to the merchandise.

4. License Number(s): Indicate the number(s) relating to each

entry now being held in inventory.

5. Certificate of Origin Number(s): Indicate the number(s)

relating to each sale or entry.

6. Date of Original Export: Date the export license is endorsed.

7. Date of Entry: Date the merchandise entered the United States

or the date book transfer took place.

8. Original Importer: Name and address.

9. Original Exporter: Name and address.

10. Complete Description of Merchandise: Include lot numbers and

other available information.

United States Sales

1. Export License Number(s): Indicate the number(s) relating to

each entry now being held in inventory.

2. Certificate of Origin Number(s): Indicate the number(s)

relating to each sale or entry.

3. Complete Description of Merchandise: Include lot numbers and

other available information.

4. Quantity: Indicate in original units of measure and in metric

tons.

5. Total Sales Value: Indicate currency used.

6. Unit Price: Indicate currency used.

7. Date of Sale: The date all terms of order are confirmed.

8. Sales Order Number(s): Indicate the number(s) relating to

each sale and/or entry.

9. Date of Export: Date the export license is endorsed.

10. Date of Entry: Date the merchandise entered the United

States or the date book transfer took place.

11. Importer of Record: Name and address.

12. Customer: Name and address.

13. Customer Relationship: Indicate whether related or

unrelated.

14. Final Destination: Name and address of location for

consumption in the United States.

15. Other: i.e., used as collateral, will be re-exported, etc.

Home Market Sales

1. Sales Order Number(s): Indicate the number(s) relating to

each sale.

2. Quantity: Indicate in original units of measure and in metric

tons.

3. Date of Sale: Date all terms of order are confirmed.

4. Delivery Date: Date the merchandise was delivered to the

customer.

5. Customer: Name and address.

6. Customer Relationship: Indicate whether related or unrelated.

Sales Other Than United States

1. Export License Number(s): Indicate the number(s) relating to

each sale and/or entry.

2. Certificate of Origin Number(s): Indicate the number(s)

relating to each sale or entry.

3. Quantity: Indicate in original units of measure sold and/or

entered and in metric tons.

4. Date of Sale: The date all terms of order are confirmed.

5. Sales Order Number(s): Indicate the number(s) relating to

each sale and/or entry.

6. Date of Export: Date the export license is endorsed.

7. Date of Entry: Date the merchandise entered the United States

or the date a book transfer took place.

8. Importer of Record: Name and address.

9. Customer: Name and address.

10. Customer Relationship: Indicate whether related or

unrelated.

11. Final Destination: Name and address of location for

consumption.

12. Other: i.e., used as collateral, will be re-exported, etc.

Appendix C

The following is the methodology the Department will use when

calculating the monthly reference price for the purposes of this

Agreement. The monthly reference price will be calculated according

to a six-step process.

(1) The Department will calculate the historical market price in

effect for the base period. The relevant weekly prices will be

averaged by the Department to arrive at one figure for the base

period. The Department will do this calculation only once, using

Metals Week information.

(2) The Department will identify the current market price in

effect and available to the Department for the latest four weeks

before the 25th of each month. The Department will calculate a

simple average of those figures, using the midpoint of each week's

Metals Week price range as the reported price.

(3) The Department will calculate the percentage change from the

base period Metals Week price to the current Metals Week price by

subtracting the historical price from the current price and dividing

the result by the historical price.

(4) The Department will identify the price to the domestic

producer of silicomanganese during the base period using information

presented in the petition.

(5) The Department will apply the percentage change calculated

in the third step by the price to the domestic producer during the

base period, resulting in an updating adjustment for that price.

(6) The Department will add the adjustment from the price to the

domestic producer during the base period to yield the upcoming

month's reference price.

The base period for calculating the monthly reference price

shall be the same for the historical market price and the price to

the domestic producer. That base period shall span between 6 months

and 3 years and shall end no later than 18-30 months before the

effective date of this agreement.

During the life of the Agreement, the Department can, as

appropriate, select alternative sources to use in determining the

current U.S. market price for silicomanganese. Should the Department

determine that the identified source is no longer appropriate, the

Department will give parties at least 30 days notice of its

decision.

[FR Doc. 94-29374 Filed 11-28-94; 8:45 am]

BILLING CODE 3510-DS-P