# Notice of Final Determination of Sales at Less Than Fair Value: Silicomanganese From Ukraine > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A94-29994 ## Record - **Collection:** Federal Register - **Document type:** Uncategorized Document - **Published:** December 6, 1994 ## Text 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] BILLING CODE 3510-DS-P --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A94-29994. Public record. Not legal advice.