[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