[Federal Register Volume 59, Number 233 (Tuesday, December 6, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-29994]

[[Page Unknown]]

[Federal Register: December 6, 1994]




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 
    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 

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 

Period of Investigation

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

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 

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 
    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).


    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 

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]