Notice of Final Determination of Sales at Less Than Fair Value: Silicomanganese From Ukraine

DEPARTMENT OF COMMERCE

[A-823-805]

Notice of Final Determination of Sales at Less Than Fair Value:

Silicomanganese From Ukraine

AGENCY: Import Administration, International Trade Administration,

Department of Commerce.

EFFECTIVE DATE: December 6, 1994.

FOR FURTHER INFORMATION CONTACT: John Brinkmann or Donna Berg, Office

of Antidumping Investigations, Import Administration, International

Trade Administration, U.S. Department of Commerce, 14th Street and

Constitution Avenue, N.W., Washington, D.C. 20230; telephone: (202)

482-5288 or (202) 482-0114, respectively.

FINAL DETERMINATION: We determine that silicomanganese from Ukraine is

being, or is likely to be, sold in the United States at less than fair

value, as provided in section 735 of the Tariff Act of 1930, as amended

(the Act). The estimated margins are shown in the ``Suspension of

Liquidation'' section of this notice.

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 petitioners, Elkem Metals Company and the

Oil, Chemical, & Atomic Workers, Local 3-639, alleged that the

Department of Commerce (the Department) had made significant

ministerial errors in our preliminary determination calculations. After

reviewing the allegation, we determined that the errors made were not

``significant'' within the meaning of section 353.15(g)(4)(ii) of the

proposed regulations (55 FR 9048 (March 9, 1990)).

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

not carried forward all of the corrected numbers and that a complete

recalculation would constitute a ``significant'' ministerial error

(i.e., a change of more than five absolute percentage points and more

than 25 percent of the dumping margin calculated in the original

preliminary determination). On reexamination, we agreed that this error

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

change to the margin. Thus, on July 19, 1994, we 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 and the Government of Ukraine

initialled an agreement that, if ultimately accepted by the Department,

would suspend the antidumping investigation on silicomanganese from

Ukraine.

Petitioners submitted a case brief on October 11, 1994.

On October 31, 1994, the Department suspended the investigation by

accepting an agreement with the Government of Ukraine pursuant to

section 734(l) of the Act. (See Notice to the Federal Register of

Antidumping: Silicomanganese from Ukraine; Suspension of Investigation,

signed November 21, 1994). Both the petitioners and the respondents in

this investigation filed requests on November 1, 1994, pursuant to

section 734(g) of the Act, that the antidumping investigation be

continued.

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.

Period of Investigation

The period of investigation is June 1, 1993, through November 30,

1993.

Ukraine's Status as a Non-Market Economy

The Department determined in Ferrosilicon from Ukraine (see Final

Determinations of Sales at Less Than Fair Value: Ferrosilicon From

Kazakhstan and Ukraine 58 FR 13050, March 9, 1993) that Ukraine is a

non-market economy (NME). A designation as an NME remains in effect

until revoked by the Department (see section 771(18)(C) of the Act). No

party has contested Ukraine's designation as an NME in this

investigation.

Best Information Available (BIA)

In investigations involving imports from non-market economy

countries, unless respondents request and qualify for separate rates,

we apply the same rate to all exports from that country. Since neither

respondent in this case qualified for separate rates, they will be

treated as a single respondent for purposes of assigning an antidumping

margin.

Although the respondents did attempt to cooperate with the

Department's requests for documents during their respective

verifications, they were not able to provide the full range of

documentation necessary for the Department to establish the accuracy

and completeness of the information provided (see verification

reports). Therefore, the Department must assign a dumping margin on the

basis of BIA, pursuant to section 776 (b) and (c) of the Act.

In determining what rate to use as BIA, the Department applies a

methodology which has been upheld by the Court of Appeals for the

Federal Circuit in Allied-Signal v. United States, 996 F.2d 1185 (Fed.

Cir. 1993). Specifically, in the case where there is only one

respondent, and that respondent has been cooperative, the Department

assigns as BIA the higher of (a) the estimated margin found in the

preliminary determination, or (b) the margin in the petition. (Final

Determination of Sales at Less than Fair Value: Antifriction Bearings

(Other than Tapered Roller Bearings) and Parts Thereof from the Federal

Republic of Germany, 54 FR 18992, 19033 (May 3, 1989)). Accordingly,

the Department is using as BIA the estimated margin calculated in the

preliminary determination (i.e., 163 percent).

Verification

As provided in section 776(b) of the Act, we attempted to verify

information provided by respondents by using standard verification

procedures, including the examination of sales and accounting records,

and selection of original source documentation containing relevant

information. However, as noted above, we were not able to verify the

accuracy and completeness of the respondents' submissions.

Critical Circumstances

On June 10, 1994, we preliminarily found that critical

circumstances exist for the two respondents in this investigation.

Pursuant to section 733(e)(1) of the Act, we based the preliminary

decision on a finding of (1) a petition margin (123.02 percent) in

excess of 25 percent, and (2) a massive increase in imports. It should

be noted that the second part of this finding, a massive increase in

imports, was based on BIA because one respondent, Nikopol, did not

provide adequate information (59 FR 14852, June 17, 1994).

For the final determination, we have received no information that

would lead us to change our preliminary determination of critical

circumstances. We have continued to use BIA as the basis for our

determination with regard to a massive increase in imports, and we

determine that critical circumstances exist for all exporters in this

investigation.

Interested Party Comments

Comment 1: The petitioners assert that the Department should assign

a BIA margin at a rate higher than the petition rate of 125.3 percent

because the petition rate was not high enough to induce the respondents

to prepare for the verifications. The petitioners propose that BIA

should be based on the amended preliminary determination margin of

163.00 percent because that margin is based on data supplied to the

Department by the respondents.

DOC Position: We agree with the petitioners. (See the BIA section

of this notice.)

Suspension of Liquidation

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, will not now be

reimposed. Suspension of liquidation will be reinstated only if the

International Trade Commission (ITC) issues an affirmative injury

determination and the Department terminates the agreement suspending

this investigation.

ITC Notification

In accordance with section 735(d) of the Act, we have notified the

ITC of our determination. The ITC will now determine, within 45 days,

whether these imports are materially injuring, or threaten material

injury to, the U.S. industry. If the ITC determines that material

injury, or threat of material injury, does not exist, the proceeding

will be terminated. If the ITC determines that such injury does exist,

the suspension agreement will remain in force and the Department will

not issue an antidumping duty order. Consistent with section

734(f)(3)(B) of the Act, the Department will not issue an order, so

long as the agreement remains in force.

Notification to Interested Parties

This notice also serves as the only reminder to parties subject to

administrative protective order (APO) of their responsibility

concerning the return or destruction of proprietary information

disclosed under APO in accordance with 19 CFR 353.34(d). Failure to

comply is a violation of the APO.

This determination is published pursuant to section 735(d) of the

Act, 19 USC 1673d(d), and 19 CFR 353.20(a)(4).

Dated: November 30, 1994.

Susan G. Esserman,

Assistant Secretary for Import Administration.

[FR Doc. 94-29994 Filed 12-5-94; 8:45 am]

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