[Federal Register Volume 59, Number 228 (Tuesday, November 29, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-29374]


[[Page Unknown]]

[Federal Register: November 29, 1994]


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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