[Federal Register Volume 64, Number 182 (Tuesday, September 21, 1999)]
[Notices]
[Pages 51097-51099]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-24583]



[[Page 51097]]

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DEPARTMENT OF COMMERCE

International Trade Administration
[A-351-820, A-834-804, A-821-804, A-823-804, A-307-807, A-570-819, C-
307-808]


Ferrosilicon From Brazil, Kazakhstan, People's Republic of China, 
Russia, Ukraine, and Venezuela

AGENCY: Import Administration, International Trade Administration, 
Department of Commerce.

ACTION: Notice of rescission of antidumping duty orders on ferrosilicon 
from Brazil, Kazakhstan, People's Republic of China, Russia, Ukraine, 
and Venezuela, rescission of countervailing duty order on ferrosilicon 
from Venezuela, and termination of administrative reviews of 
ferrosilicon from Brazil, the People's Republic of China, and 
Venezuela.

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SUMMARY: In 1993 and 1994, the Department of Commerce (the Department) 
issued antidumping duty orders on ferrosilicon from Brazil, Kazakhstan, 
People's Republic of China (PRC), Russia, Ukraine, and Venezuela, as 
well as a countervailing duty order on ferrosilicon from Venezuela. The 
Department subsequently initiated administrative reviews pursuant to 
these orders. On August 24, 1999, the International Trade Commission 
(ITC), after reconsidering its previous injury determinations, informed 
the Department that it had determined that there is no material injury, 
or threat of material injury, to an industry with regard to 
ferrosilicon from the above countries. The Department is therefore 
rescinding these orders, terminating the related reviews, and 
instructing the U.S. Customs Service (Customs) accordingly.

EFFECTIVE DATE: September 21, 1999.

FOR FURTHER INFORMATION CONTACT: Jack K. Dulberger or Wendy Frankel, 
AD/CVD Enforcement, Group II, Office IV, Import Administration, 
International Trade Administration U.S. Department of Commerce, 14th 
Street and Constitution Avenue, NW, Washington, DC 20230; telephone: 
(202) 482-5505 and (202) 482-5849, respectively.

SUPPLEMENTARY INFORMATION:

The Applicable Statute and Regulations

    The relevant antidumping and countervailing duty orders were issued 
prior to the amendments made to the Tariff Act of 1930, as amended (the 
Act) by the Uruguay Round Agreements Act (URAA). Because this notice 
addresses an ITC reconsideration made in a proceeding that was governed 
by the law in effect prior to URAA, all citations to the Act are 
references to the provisions in existence prior to January 1, 1995 (the 
effective date of the URAA), unless otherwise indicated.

Scope of Antidumping Duty and Countervailing Duty Orders

    The merchandise subject to the orders and administrative reviews in 
question is ferrosilicon, a ferro alloy generally containing, by 
weight, not less than four percent iron, more than eight percent but 
not more than 96 percent silicon, not more than 10 percent chromium, 
not more than 30 percent manganese, not more than three percent 
phosphorous, less than 2.75 percent magnesium, and not more than 10 
percent calcium or any other element. Ferrosilicon is a ferro alloy 
produced by combining silicon and iron through smelting in a submerged-
arc furnace. Ferrosilicon is used primarily as an alloying agent in the 
production of steel and cast iron. It is also used in the steel 
industry as a deoxidizer and a reducing agent, and by cast iron 
producers as an inoculant. Ferrosilicon is differentiated by size and 
by grade. The sizes express the maximum and minimum dimensions of the 
lumps of ferrosilicon found in a given shipment. Ferrosilicon grades 
are defined by the percentages by weight of contained silicon and other 
minor elements. Ferrosilicon is most commonly sold to the iron and 
steel industries in standard grades of 75 percent and 50 percent 
ferrosilicon. Calcium silicon, ferrocalcium silicon, and magnesium 
ferrosilicon are specifically excluded from the scope of this review. 
Calcium silicon is an alloy containing, by weight, not more than five 
percent iron, 60 to 65 percent silicon, and 28 to 32 percent calcium. 
Ferrocalcium silicon is a ferro alloy containing, by weight, not less 
than four percent iron, 60 to 65 percent silicon, and more than 10 
percent calcium. Magnesium ferrosilicon is a ferro alloy containing, by 
weight, not less than four percent iron, not more than 55 percent 
silicon, and not less than 2.75 percent magnesium. Ferrosilicon is 
currently classifiable under the following subheadings of the 
Harmonized Tariff Schedule of the United States (HTSUS): 7202.21.1000, 
7202.21.5000, 7202.21.7500, 7202.21.9000, 7202.29.0010, and 
7202.29.0050. The HTSUS subheadings are provided for convenience and 
customs purposes. Our written description of the scope of these orders 
is dispositive. Ferrosilicon in the form of slag is included within the 
scope of these orders if it meets, in general, the chemical content 
definition stated above and is capable of being used as ferrosilicon.

Background

    In 1993 and 1994 the Department issued antidumping duty orders on 
ferrosilicon from Brazil, Kazakhstan, PRC, Russia, Ukraine, and 
Venezuela, as well as a countervailing duty order on ferrosilicon from 
Venezuela. See Antidumping Duty Order: Ferrosilicon From Brazil, 59 FR 
11769 (March 14, 1994) (Antidumping Order--Brazil); Antidumping Duty 
Order: Ferrosilicon From the People's Republic of China, 58 FR 13448 
(March 11, 1993) (Antidumping Order--PRC); Antidumping Duty Order: 
Ferrosilicon From Kazakhstan, 58 FR 18079 (April 7, 1993) (Antidumping 
Order--Kazakhstan); Antidumping Duty Order: Ferrosilicon From Russia, 
58 FR 34243 (June 24, 1993) (Antidumping Order--Russia); Antidumping 
Duty Order: Ferrosilicon From Ukraine, 58 FR 18079 (April 7, 1993) 
(Antidumping Order--Ukraine); Antidumping Duty Order: Ferrosilicon from 
Venezuela, 58 FR 34243 (June 24, 1993), amended by 60 FR 64018 
(December 13, 1995) (Antidumping Order--Venezuela); Countervailing Duty 
Order: Ferrosilicon From Venezuela, 58 FR 27539 (May 10, 1993), amended 
by 58 FR 36394 (July 7, 1993) (Countervailing Order--Venezuela).
    The Department subsequently initiated administrative reviews under 
section 751 of the Act pursuant to the orders. See Notice of Initiation 
of Antidumping and Countervailing Duty Administrative Reviews and 
Request for Revocation in Part, 63 FR 20378 (April 24, 1998) (Brazil--
antidumping); Notice of Initiation of Antidumping and Countervailing 
Duty Administrative Reviews and Requests for Revocation in Part, 64 FR 
23269 (April 30, 1999) (Brazil and China--antidumping); Initiation of 
Antidumping and Countervailing Duty Administrative Reviews, Requests 
for Revocation in Part and Deferral of Administrative Review, 64 FR 
35124 (June 30, 1999) (Venezuela--countervailing); Initiation of 
Antidumping and Countervailing Duty Administrative Reviews and Requests 
for Revocation in Part, 64 FR 41075 (July 29, 1999) (Venezuela--
antidumping). These five administrative reviews are on-going.
    On May 21, 1999, the ITC instituted proceedings to reconsider its 
original determinations in antidumping investigations Nos. 731-TA-566-
570 and 731-TA-641 (Final) concerning ferrosilicon from Brazil, China, 
Kazakhstan, Russia, Ukraine, and Venezuela, and in countervailing duty 
investigation No. 303-TA-23 (Final) concerning ferrosilicon from 
Venezuela.

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The ITC made its decision after learning that certain domestic 
producers had pleaded guilty or had been found guilty of conspiring to 
fix domestic ferrosilicon prices during the periods of the original 
investigations. See Ferrosilicon from Brazil, China, Kazakhstan, 
Russia, Ukraine, and Venezuela, Inv. Nos. 303-TA-566-570 and 731-TA-641 
(Reconsideration), USITC Pub. 3218, at 3-4 (August 24, 1999). On August 
24, 1999, the ITC informed the Department that it had reconsidered its 
original material injury determination in these cases. Id.
    Upon reconsideration, the ITC determined that ``an industry in the 
United States is neither materially injured nor threatened with 
material injury by reason of imports of ferrosilicon from Brazil, 
China, Kazakhstan, Russia, Ukraine, and Venezuela that have been found 
by the Department of Commerce to be sold at less than fair value and 
imports of ferrosilicon that the Department of Commerce has found are 
subsidized by the government of Venezuela.'' Id. at 4.
    Subsequent to the ITC's publication of its Reconsideration, the 
Department received a letter dated August 30, 1999, from 
representatives of the domestic ferrosilicon industry, petitioners in 
this case, regarding the Department's possible revocation of the above 
named antidumping duty and countervailing duty orders. Petitioners 
argue that, pursuant to 19 U.S.C. section 1675(d), the Department is 
only authorized to revoke antidumping or countervailing duty orders 
after conducting some sort of review of the orders, in which parties 
have an opportunity to comment and in which the Department sets out the 
legal and factual basis for its determination to revoke.
    The Department also received a letter dated September 1, 1999, from 
Companhia Carbureto de Calcio, Companhia Ferroligas Minas Gerais-
Minasligas, and Zunyi Ferroalloy Imp. & Exp. Company, Brazilian and 
Chinese respondents who are interested parties in the on-going 
administrative reviews of the antidumping duty orders on ferrosilicon 
from Brazil and China. Respondents assert that because the ITC notified 
the Department that no material injury or threat of material injury 
existed, pursuant to its reconsideration of the original injury 
determinations in these cases, the Department must terminate its 
activity under the affected antidumping and countervailing duty orders. 
Respondents state that the Department need not revoke the outstanding 
orders, because there are no longer any orders to revoke. Instead, 
respondents assert that ``the Department must terminate these 
investigations (sic), terminate the suspension of liquidation for all 
entries for which liquidation is currently suspended, and refund any 
cash deposits that have been paid.''
    Further, on September 3, 1999, the Department received a letter 
from Ferroatlantica de Venezuela (``Ferroven''), a Venezuelan 
respondent in the antidumping and countervailing duty order proceedings 
listed above, stating that the Department ``has full authority under 
the statute to rescind [the above listed orders] ab initio.'' Ferroven 
asserts that pursuant to 19 U.S.C. sections 1671, 1673, an antidumping 
or countervailing duty order can only stand if the ITC determines that 
an industry in the United States is materially injured or threatened 
with material injury. Ferroven states that because the ITC 
reconsidered, ab initio, its original injury determination and found no 
injury, a mandatory element for an antidumping or countervailing duty 
order no longer exists. Therefore, Ferroven asserts that because the 
Department lacks the statutory authority to maintain an antidumping 
duty order, the Department has no choice but to rescind the outstanding 
orders, terminate the suspension of liquidation for all entries 
currently suspended, and refund any cash deposits.
    Contrary to petitioners' argument, there is no statutory 
requirement that the Department conduct a review before acting upon the 
ITC's negative injury determination. The ITC's action in these cases is 
unique and there is no statutory provision which explicitly provides 
for the manner in which the Department should rescind these orders. The 
ITC's action in these cases is analogous to a negative injury finding 
in an original investigation under sections 705(b)(1) and 735(b)(1). 
Once the ITC renders a negative injury finding, the Department has no 
authority to issue an order and merely performs the ministerial act of 
terminating the suspension of liquidation pursuant to sections 
705(c)(2) and 735(c)(2). The Department's response to the ITC's 
negative injury redetermination in these cases should be the equivalent 
of the action the Department would have been required to take had the 
ITC rendered negative injury determinations in 1993 and 1994.
    However, because the ferrosilicon orders were issued in 1993 and 
1994, the Department cannot merely terminate the suspension of 
liquidation as would be the case under sections 705(c)(2) and 735(c)(2) 
when no order is ever issued. In this instance, therefore, rescission 
of the ferrosilicon orders from the dates of issuance is the legal 
equivalent of the action required to be taken by the Department under 
sections 705(c)(2) and 735(c)(2).
    Conducting some sort of review is inappropriate under the 
circumstances in these cases. There are no issues of law or fact 
capable of review by the Department, because the Department's action in 
rescinding the ferrosilicon orders is merely a ministerial function 
which is the legal consequence of the ITC's redetermination of no 
material injury or threat thereof.

Rescission of Antidumping Duty and Countervailing Duty Orders and 
Termination of Administrative Reviews

    Sections 705(c)(2), 735(c)(2), 706(a), and 736(a) of the Act 
require that as a prerequisite for the issuance and enforcement of an 
antidumping or countervailing duty order, the ITC must determine that 
an industry in the United States is materially injured or threatened by 
material injury. On August 24, 1999, the ITC notified the Department 
that it had reconsidered its original injury determinations in the 
above listed cases and determined that material injury, or threat of 
material injury, had never existed. As a necessary element for the 
imposition and enforcement of antidumping and countervailing duty 
orders does not exist, the Department has no legal authority to 
maintain and/or enforce any of the above listed orders.
    Consequently, we are now rescinding the above listed antidumping 
orders concerning ferrosilicon from Brazil, Kazakhstan, PRC, Russia, 
Ukraine, and Venezuela. We also are rescinding the countervailing duty 
order concerning ferrosilicon from Venezuela. Because the ITC's 
negative injury determinations resulted from a reconsideration of its 
original injury determinations, these orders are rendered legally 
invalid from the date of issuance. Accordingly, our rescission of these 
orders are effective from the date of their original issuance and apply 
to all unliquidated entries of subject merchandise from the above 
countries.
    Further, we are terminating the above listed administrative reviews 
of the antidumping duty orders concerning ferrosilicon from Brazil, 
Venezuela, and PRC. We also are terminating the above listed 
administrative review of the countervailing duty order concerning 
ferrosilicon from Venezuela.

Customs Instructions

    The Department will issue instructions directly to Customs. The 
Department will direct Customs to lift

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the suspension of all entries of the subject merchandise that are 
currently suspended pursuant to these orders, and to liquidate, without 
regard to antidumping or countervailing duties, all unliquidated 
entries of ferrosilicon from Brazil, Kazakhstan, PRC, Russia, Ukraine, 
and Venezuela.
    The Department will further instruct Customs to release any bond or 
other security and refund any cash deposit collected, with interest, if 
applicable, with respect to all unliquidated entries of ferrosilicon 
from Brazil, Kazakhstan, PRC, Russia, Ukraine, and Venezuela.
    With respect to unliquidated entries of ferrosilicon that are the 
subject of court-ordered injunctions, the Department continues to be 
enjoined from ordering the liquidation of these entries until the court 
disposes of the litigation or dissolves the injunctions.
    This notice is in accordance with sections 705(c)(2) and 735(c)(2) 
of the Act.

    Dated: September 15, 1999.
Richard W. Moreland,
Acting Assistant Secretary for Import Administration.
[FR Doc. 99-24583 Filed 9-20-99; 8:45 am]
BILLING CODE 3510-DS-P