[Federal Register Volume 66, Number 112 (Monday, June 11, 2001)]
[Notices]
[Pages 31206-31208]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-14650]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-823-805]


Suspension Agreement on Silicomanganese From Ukraine; Final 
Results of Administrative Review

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

ACTION: Notice of final results of the administrative review of the 
suspension agreement on silicomanganese from Ukraine.

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SUMMARY: In response to a request from Eramet Marietta Inc. 
(petitioner), the Department of Commerce (``the Department'') is 
conducting an administrative review of the suspension agreement on 
silicomanganese from Ukraine (``the Agreement'') for the period 
November 1, 1998 through October 31, 1999, to review the current status 
of, and compliance with, the Agreement. For the reasons stated in this 
notice, the Department determines that the Government of Ukraine (``the 
GOU'') is not in compliance with the Agreement. The final results are 
listed in the section titled ``Final Results of Review,'' infra.

EFFECTIVE DATE: June 11, 2001.

FOR FURTHER INFORMATION CONTACT: Jean Kemp or Stephen Bailey, Import 
Administration, International Trade Administration, U.S. Department of 
Commerce, 14th Street and Constitution Avenue, N.W., Washington D.C. 
20230; telephone: (202) 482-4037 or (202) 482-1102, respectively.

SUPPLEMENTARY INFORMATION:

The Applicable Statute

    Unless otherwise indicated, all citations to the statute are 
references to the provisions effective January 1, 1995, the effective 
date of the amendments made to the Tariff Act of 1930 (``Act'') by the 
Uruguay Round Agreements Act (``URAA''). In addition, unless otherwise 
indicated, all citations to the Department's regulations are to 19 CFR 
Part 351 (2000).

Background

    On October 31, 1994, the Department signed an agreement with the 
GOU which suspended the antidumping investigation on silicomanganese 
from Ukraine. See Silicomanganese from Ukraine; Suspension of 
Investigation 59 FR 60951 (November 29, 1994). In accordance with 
section 734(g) of the Act, on December 6, 1994, the Department 
published its final determination of sales at less than fair value in 
this case. See Notice of Final Determination of Sales at Less Than Fair 
Value: Silicomanganese From Ukraine, 59 FR 62711(December 6, 1994).
    On November 30, 1999, petitioner submitted a request for an 
administrative review pursuant to the notice of Antidumping and 
Countervailing Duty Order, Finding, or Suspended Investigation; 
Opportunity to Request Administrative Review, 64 FR 62167 (November 16, 
1999). On December 28, 1999, the Department initiated a review of the 
Agreement. See Notice of Initiation of Antidumping and Countervailing 
Duty Administrative Reviews, 64 FR 72644, (``Initiation Notice''). On 
December 5, 2000, the Department of Commerce (``the Department'') 
published the preliminary results of its administrative review of the 
Suspension Agreement on Silicomanganese from Ukraine (65 FR 75921) 
(``Preliminary Results''). The Department is conducting this review in 
accordance with section 751(a)(1) of the Act.
    On November 2, 1999, the Department initiated (Notice of 
Inititation of Five-Year ``Sunset'' Reviews, 64 FR 59160) and the 
International Trade Commission (``ITC'') instituted (Silicon Metal From 
Argentina, Brazil, and China and Silicomanganese From Brazil, China, 
and Ukraine, 64 FR 59204, 59209) a sunset review of the suspended 
antidumping duty investigation on silicomanganese from Ukraine, 
pursuant to section 751(c) of the Act. As a result of its review, on 
September 27, 2000, the Department determined (Final Results of Full 
Sunset Review: Silicomanganese from Ukraine, 65 FR 58045) that 
termination of the agreement on silicomanganese from Ukraine would be 
likely to lead to continuation or recurrence of dumping and notified 
the ITC of the magnitude of the margin likely to prevail were the 
agreement terminated. On February 5, 2001, the ITC determined 
(Silicomanganese from Brazil, China, and Ukraine Investigations Nos. 
731-TA-671-673 (Review), 66 FR 8981; ITC Publication # 3386) that 
termination of

[[Page 31207]]

the suspended investigation on silicomanganese from Ukraine would be 
likely to lead to continuation or recurrence of material injury to an 
industry in the United States within a reasonably foreseeable time. 
Therefore, on February 16, 2001, the Department published, 
(Continuation of Antidumping Duty Orders on Silicon Metal From Brazil 
and China and on Silicomanganese From Brazil and China, and 
Continuation of Suspended Antidumping Duty Investigation on 
Silicomanganese From Ukraine, 66 FR 10669) notice of continuation of 
the suspended investigation on silicomanganese from Ukraine, pursuant 
to section 751(c) and 752 of the Act.

Scope of Review

    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 percent iron, more than 30 percent manganese, 
more than 8 percent silicon and not more than 3 percent 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 
(``HTS''). Some silicomanganese may also currently be classifiable 
under HTS subheading 7202.99.5040. Although the HTS subheadings are 
provided for convenience and customs purposes, our written description 
of the scope is dispositive.

Period of Review

    The period of review (``POR'') is November 1, 1998 through October 
31, 1999.

Analysis of Comments Received

    All issues raised in the case brief to this administrative review 
are addressed in the ``Issues and Decision Memorandum'' (``Decision 
Memorandum'') from Joseph A. Spetrini, Deputy Assistant Secretary, 
Import Administration, to Faryar Shirzad, Assistant Secretary for 
Import Administration, dated June, 4, 2001, which is hereby adopted by 
this notice. A list of the issues which parties have raised and to 
which we have responded, all of which are in the Decision Memorandum, 
is attached to this notice as an Appendix. Parties can find a complete 
discussion of all issues raised in this review and the corresponding 
recommendations in this public memorandum which is on file in the 
Central Records Unit, Room B-099 of the main Department building. In 
addition, a complete version of the Decision Memorandum can be accessed 
directly on the Web at http://ia.ita.doc.gov. The paper copy and 
electronic version of the Decision Memorandum are identical in content.

Changes Since the Preliminary Results

    Based upon our analysis of the comments received, there have been 
no changes since issuing the preliminary results.

Final Results of Review

    Section 751(a)(1)(C) of the Act specifies that the Department shall 
``review the current status of, and compliance with, any agreement by 
reason of which an investigation was suspended* * *.'' In this case the 
Department and the GOU signed the Agreement suspending the antidumping 
duty investigation on silicomanganese from Ukraine on October 31, 1994.
    As discussed in the Preliminary Results, in order to effectively 
restrict the volume of exports of silicomanganese from Ukraine to the 
United States, the Agreement provides for the implementation by the GOU 
of certain provisions (Article VII). Moreover, Article IX of the 
Agreement (Monitoring) requires the GOU to ``provide to the Department 
such information as is necessary and appropriate to monitor the 
implementation of and compliance with the terms of {the} Agreement.'' 
One of the tools the Department uses to monitor the Agreement is sales 
reports filed by the GOU. Specifically, the GOU is required to collect 
and provide to the Department sales data on silicomanganese from 
Ukraine to the United States, in the home market, and to countries 
other than the United States in the format specified in Appendix B. 
Although the Agreement specifies that these sales reports are to be 
submitted to the Department on a semi-annual basis, subsequent to the 
signing of the Agreement the GOU agreed to submit the sales reports on 
a quarterly basis. See Paris Minutes, Memorandum of Consultations 
Regarding Administration of the Silicomanganese Suspension Agreement, 
(May 28, 1998), attached as exhibit 1 to petitioner's October 6, 2000 
letter.
    For this administrative review, we find that the GOU failed to 
provide the Department with sales reports required by the Agreement. 
The GOU failed to submit a sales report due December 1, 1999. The GOU 
also denied the Department's request that sales reports, placed on the 
administrative record of the Agreement on December 1, 1998, March 1, 
1999, May 31, 1999 and September 10, 1999, also be placed onto the 
administrative record of this review. The GOU expressed concern that 
the previously submitted sales reports, if submitted in this review, 
would be released to the general public. In a public letter dated 
February 14, 2001, the GOU pointed out that disclosure of ``economic 
activity'' and ``commercial secrets'' would cause damage to Ukrainian 
silicomanganese producers Nikopol Ferroalloys (``Nikopol'') and 
Zaporizhzhya Ferroalloys (``Zaporizhzhya''). The Department replied to 
this letter on February 16, 2001, pointing out that the information 
contained in the reports would be protected by administrative 
protective order (APO) and would not be available to the general public 
as part of this administrative review.
    As discussed above, these sales reports are important in order to 
determine whether or not the GOU has effectively restricted the volume 
of exports of silicomanganese from Ukraine to the United States. 
Despite the Department's letter of February 16, 2001, the GOU has not 
responded to the Department's request to allow these reports to be 
placed on the administrative record of this proceeding. Moreover, the 
GOU has never submitted the sales report required on December 1, 1999. 
As a result, the Department does not believe the GOU has acted to the 
best of its ability to cooperate in this administrative review.
    Section 776 (b) of the Act provides that, in selecting from the 
facts available, adverse inferences may be used when an interested 
party fails to cooperate by not acting to the best of its ability to 
comply with requests for information. Because the GOU, as discussed 
above, has not acted to the best of its ability in this administrative 
review, the Department finds, as adverse facts available, that the GOU 
is not in compliance with the Agreement. Moreover, we note that the GOU 
has continued its pattern of non-compliance beyond this POR, by failing 
to file any required quarterly sales reports since,

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and including, the report required on December 1, 1999.
    In the preliminary results of this administrative review, the 
Department stated, ``If the Department makes a final determination of 
non-compliance, it will then be necessary to determine whether this 
non-compliance rises to the level of a violation as defined in Article 
XII of the Agreement.'' The Department finds non-compliance on the part 
of the GOU for its failure to submit the December 1, 1999 sales report 
and its failure to place sales reports, placed on the administrative 
record of the Agreement, onto the administrative record of this review. 
In addition, the Department views the GOU's failure to provide sales 
reports for any of the reporting periods after December 1999 as a 
continuing pattern of uncooperative behavior. Article XII of the 
Agreement requires that prior to making a determination of an alleged 
violation, the Department will engage in emergency consultations with 
the GOU. Therefore, the Department has requested emergency 
consultations with the GOU, consistent with Article XII of the 
Agreement. If, pursuant to these consultations, the Department finds 
that the GOU's non-compliance constitutes a violation pursuant to 
section 351.209 of the Department's regulations, the Department will 
terminate the Agreement and issue an antidumping duty order.
    This notice is published in accordance with sections 751(a) and 
777(i) of the Act.

    Dated: June 4, 2001.
Faryar Shirzad,
Assistant Secretary for Import Administration.

Appendix--List of Issues

    1. Whether the GOU has failed to comply with the information 
reporting requirements of the Agreement.
    2. Whether the GOU has failed to establish and maintain the 
required regimes necessary to implement the price and volume 
restrictions of the Agreement.
    3. Whether the GOU's failures to comply with the Agreement 
constitute violations of the Agreement.
    4. Whether the GOU has effectively given notice of termination 
of the Agreement, requiring the Department to issue an order and 
take the other steps required when an Agreement has been violated.

[FR Doc. 01-14650 Filed 6-8-01; 8:45 am]
BILLING CODE 3510-DS-P