[Federal Register Volume 66, Number 192 (Wednesday, October 3, 2001)]
[Notices]
[Pages 50401-50406]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-24751]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-823-811]


Notice of Final Determination of Sales at Less Than Fair Value: 
Certain Hot-Rolled Carbon Steel Flat Products From Ukraine

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

ACTION: Notice of final determination of sales at less than fair value: 
certain hot-rolled carbon steel flat products from Ukraine.

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SUMMARY: We determine that certain hot-rolled carbon steel flat 
products (``hot-rolled steel'') from Ukraine are being, or are 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''). On 
May 3, 2001, the Department of Commerce (the ``Department'') published 
its preliminary determination in the less than fair value (``LTFV'') 
investigation of certain hot-rolled carbon steel flat products from 
Ukraine. See Notice of Preliminary Determination of Sales at Less Than 
Fair Value: Certain Hot-Rolled Carbon Steel Flat Products From Ukraine, 
66 FR 22152 (May 3, 2001) (``Preliminary Determination''). Based on our 
analysis of comments received, the final determination differs from the 
preliminary determination. The estimated margins of sales at LTFV are 
shown in the ``Final Determination of Investigation'' section of this 
notice.

EFFECTIVE DATE: October 3, 2001.

FOR FURTHER INFORMATION CONTACT: Lori Ellison or Rick Johnson of Import 
Administration, International Trade Administration, U.S. Department of 
Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 
20230; telephone: (202) 482-5811 and (202) 482-3818, respectively.

The Applicable Statute and Regulations

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

Case History

    On May 3, 2001, the Department published its Preliminary 
Determination in the LTFV investigation of hot-rolled steel from 
Ukraine. As noted in our Preliminary Determination, Zaporizhstal Iron 
and Steel Works (``Zaporizhstal'') is the sole participating respondent 
in this investigation. The other two Ukrainian producers of subject 
merchandise, Dnepropetrovsk Comintern Steel Works (``Dnepropetrovsk'') 
and Ilyich Iron & Steel Works, Mariupol (``Ilyich''), failed to respond 
to our requests for information. The petitioners in this investigation 
are: Bethlehem Steel Corporation, LTV Steel Company, Inc., National 
Steel Corporation, U.S. Steel Group, a unit of USX Corporation, the 
United Steelworkers of America, Gallatin Steel Company, IPSCO Steel 
Inc., Nucor Corp., Steel Dynamics, Inc., Weirton Steel Corp., and 
Independent Steelworkers Union (hereinafter ``petitioners'').
    For purposes of our preliminary determination, pursuant to section 
776(b) of the Act, we applied a single Ukraine-wide antidumping duty 
rate to all producers/exporters of hot-rolled steel in Ukraine. This 
rate was based on total adverse facts available. See Preliminary 
Determination at 22155. As total adverse facts available, we applied 
the highest dumping margin from the petition (as adjusted by the 
Department), 89.49 percent. See id. at 22157 and Memorandum to Edward 
C. Yang, Facts Available Corroboration Memorandum, Preliminary 
Determination of Hot-Rolled Carbon Steel Flat Products from Ukraine, 
April 23, 2001 (``Preliminary FA/Corroboration Memorandum'').
    On May 2, 2001, the Department received a request from the 
respondent Zaporizhstal, ``the Midland group of companies'' (i.e., 
Midland Industries Limited, Midland Metals International, Inc., and 
Midland Resources Holding Limited), and the State Committee of 
Industrial Policy of Ukraine, to postpone its final determination until 
135 days after publication of the Department's preliminary 
determination and to extend the imposition of provisional measures from 
a four-month period to not more than six months, pursuant to section 
735(a)(2)(A) of the Act. On May 21, 2001, we published in the Federal 
Register our notice to postpone the final determination, pursuant to 
those requests. See Certain Hot-Rolled Carbon Steel Flat Products From 
Ukraine; Notice of Postponement of Final Determination in the 
Antidumping Duty Investigation, 66 FR 27937 (May 21, 2001).
    Although we applied to Zaporizhstal total adverse facts available 
for purposes of the preliminary determination, we gave the company yet 
another opportunity to remedy the deficiencies and inconsistencies in 
its response subsequent to the preliminary determination. On April 19, 
2001, and May 4, 2001, we issued supplemental questionnaires with due 
dates of May 4, 2001, and May 18, 2001, respectively. On May 3, 2001, 
the Department granted Zaporizhstal's request of May 2, 2001, that the 
April 19, 2001 questionnaire response deadline be extended by two 
weeks. Zaporizhstal submitted timely responses to both questionnaires 
on May 18, 2001. On May 21, 2001, Zaporizhstal filed information that 
was ``inadvertently left out'' of the May 18th submission. On June 12, 
2001, petitioners submitted additional information to value the factors 
of production.
    On June 28, June 29, and July 6, 2001, respectively, well past the 
deadline of May 18, 2001 (as supplemented on May 21, 2001), for 
responding to our questionnaires, Zaporizhstal filed three

[[Page 50402]]

additional submissions. On July 31, 2001, we issued a letter to 
Zaporizhstal in which we rejected these three submissions as untimely 
filed responses to our supplemental questionnaires. In this letter, we 
informed Zaporizhstal that, in order for the Department to have 
considered this information, it should have been filed not later than 
with the May 18, 2001, submission (as supplemented on May 21st), in 
response to the Department's April 19 and May 4, 2001, supplemental 
questionnaires. See Letter from Edward Yang to Bruce Aitken, dated July 
31, 2001; and Memorandum to the File from Lori Ellison to Rick Johnson, 
dated July 27, 2001. On August 2, 2001, counsels to Zaporizhstal and 
petitioners were notified via telephone that the Department determined 
not to conduct a verification of Zaporizhstal's sales and normal value 
data. See Memorandum to the File from Lori Ellison to Rick Johnson; 
Decision Not to Conduct a Verification of Respondent's Data, dated 
August 2, 2001.
    On August 9, 2001, Zaporizhstal submitted its case brief with a 
supplement. On August 14, 2001, the petitioners submitted a rebuttal 
brief. On August 23, 2001, the petitioners withdrew their request of 
May 24, 2001, for a hearing. See Memorandum from Lori Ellison to Rick 
Johnson regarding Withdrawal of Request for Hearing, dated August 23, 
2001.
    On June 15, 2001, we determined not to initiate a middleman dumping 
investigation. See Memorandum to Joseph A. Spetrini from Edward Yang 
Regarding Certain Hot-Rolled Carbon Steel Flat Products from Ukraine: 
Whether to Initiate a Middleman Dumping Investigation, dated June 15, 
2001.
    On May 18, 2001, Zaporizhstal commented regarding its request for 
revocation of Ukraine's non-market economy (``NME'') status or for 
market oriented industry (``MOI'') treatment. This submission was 
provided in response to the Department's letter of February 26, 2001, 
in which the Department requested that Zaporizhstal address the 
statutory criteria for revoking a country's NME status and the 
established criteria for granting MOI treatment. See Department's 
February 26, 2001 letter from Rick Johnson to Mr. Kieran Sharpe 
(``February 26, 2001 Letter''). On July 11, 2001, Zaporizhstal further 
addressed the criteria for revoking Ukraine's NME status. On July 24, 
2001, the petitioners submitted comments on Zaporizhstal's analysis. On 
August 8, 2001, the Embassy of Ukraine, on behalf of the Ministry of 
Economy of Ukraine, submitted information and evidence necessary for 
the Department's consideration of Ukraine's NME status.
    On May 8, 2001, the Embassy of Ukraine requested that the 
Department consider an agreement suspending this investigation. The 
request was accompanied by a proposed suspension agreement. In a letter 
of July 30, 2001, the Department invited the Ministry of Economy of 
Ukraine to discuss the details of this proposal. On August 2, 2001 
petitioners submitted comments on the negotiations between the 
Department and the Government of Ukraine, arguing that negotiation or 
conclusion of an agreement is untimely and not in compliance with the 
Department's regulations. On August 10, 2001, the Department submitted 
a memorandum to the file, explaining that the ``Department's 
regulations allow for flexibility, especially with regard to procedural 
deadlines where the Secretary determines there is good cause.'' See 
Memorandum to the File from Joe Spetrini, Deputy Assistant Secretary, 
to Faryar Shirzad, Assistant Secretary for Import Administration 
(August 10, 2001), at 2. On August 13 and 14, 2001, Department 
officials met with Ukrainian government officials and consulted 
regarding the proposed suspension agreement. The Department and the 
Government of Ukraine did not initial or sign a suspension agreement 
regarding this investigation. Consequently, petitioners' comments are 
moot.
    Although the deadline for this determination was originally 
September 15, 2001, in light of the events of September 11, 2001, and 
the subsequent closure of the Federal Government for reasons of 
security, the time frame for issuing this determination has been 
extended by four days.

Period of Investigation

    The period of investigation (``POI'') is April 1, 2000, through 
September 30, 2000. This period corresponds to the two most recent 
fiscal quarters prior to the month of the filing of the petition (i.e., 
November 2000). See 19 CFR 351.204(b)(1).

Analysis of Comments Received

    All issues raised in the case and rebuttal briefs by parties to 
this proceeding and to which we have responded are listed in the 
Appendix to this notice and addressed in the Issues and Decision 
Memorandum for the Antidumping Duty Investigation of Certain Hot-Rolled 
Carbon Steel Flat Products From Ukraine (``Issues and Decision 
Memorandum''), dated September 21, 2001, which is hereby adopted by 
this notice. Parties can find a complete discussion of the issues 
raised in this investigation 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 Issues and Decision Memorandum can be accessed directly 
on the Web at http://ia.ita.doc.gov. The paper copy and electronic 
version of the Issues and Decision Memorandum are identical in content.

Changes Since the Preliminary Determination

    Based on our analysis of the comments received, we have made 
adjustments to the preliminary determination methodologies in 
calculating the final dumping margin in this proceeding. While we 
continued to use Indonesia as the surrogate country, we made the 
following changes: (1) we applied an updated inflation factor based on 
the entire POI; and (2) we applied an updated exchange rate based upon 
the entire POI. These adjustments are discussed in the Memorandum to 
Edward C. Yang, Facts Available Corroboration Memorandum, Final 
Determination of Hot-Rolled Carbon Steel Flat Products from Ukraine, 
September 21, 2001 (``Final FA/Corroboration Memorandum'') at 
Attachment II.

Verification

    We determined to not verify the information submitted by 
Zaporizhstal, as required by section 782 (i)(1) of the Act, because of 
its incompleteness. See Final FA/Corroboration Memorandum and 
Memorandum to the File from Lori Ellison to Rick Johnson; Decision Not 
to Conduct a Verification of Respondent's Data, dated August 2, 2001.

Scope of Investigation

    For purposes of this investigation, the products covered are 
certain hot-rolled carbon steel flat products of a rectangular shape, 
of a width of 0.5 inch or greater, neither clad, plated, nor coated 
with metal and whether or not painted, varnished, or coated with 
plastics or other non-metallic substances, in coils (whether or not in 
successively superimposed layers), regardless of thickness, and in 
straight lengths of a thickness of less than 4.75 mm and of a width 
measuring at least 10 times the thickness. Universal mill plate (i.e., 
flat-rolled products rolled on four faces or in a closed box pass, of a 
width exceeding 150 mm, but not exceeding 1250 mm, and of a thickness 
of not less than 4.0 mm, not in coils and

[[Page 50403]]

without patterns in relief) of a thickness not less than 4.0 mm is not 
included within the scope of this investigation.
    Specifically included within the scope of this investigation are 
vacuum degassed, fully stabilized (commonly referred to as 
interstitial-free (IF)) steels, high strength low alloy (HSLA) steels, 
and the substrate for motor lamination steels. IF steels are recognized 
as low carbon steels with micro-alloying levels of elements such as 
titanium or niobium (also commonly referred to as columbium), or both, 
added to stabilize carbon and nitrogen elements. HSLA steels are 
recognized as steels with micro-alloying levels of elements such as 
chromium, copper, niobium, vanadium, and molybdenum. The substrate for 
motor lamination steels contains micro-alloying levels of elements such 
as silicon and aluminum.
    Steel products to be included in the scope of this investigation, 
regardless of definitions in the Harmonized Tariff Schedule of the 
United States (HTSUS), are products in which: (i) iron predominates, by 
weight, over each of the other contained elements; (ii) the carbon 
content is 2 percent or less, by weight; and (iii) none of the elements 
listed below exceeds the quantity, by weight, respectively indicated:

1.80 percent of manganese, or
2.25 percent of silicon, or
1.00 percent of copper, or
0.50 percent of aluminum, or
1.25 percent of chromium, or
0.30 percent of cobalt, or
0.40 percent of lead, or
1.25 percent of nickel, or
0.30 percent of tungsten, or
0.10 percent of molybdenum, or
0.10 percent of niobium, or
0.15 percent of vanadium, or
0.15 percent of zirconium.

    All products that meet the physical and chemical description 
provided above are within the scope of this investigation unless 
otherwise excluded. The following products, by way of example, are 
outside or specifically excluded from the scope of this investigation:
     Alloy hot-rolled steel products in which at least one of 
the chemical elements exceeds those listed above (including, e.g., 
American Society for Testing and Materials (ASTM) specifications A543, 
A387, A514, A517, A506).
     Society of Automotive Engineers (SAE)/American Iron & 
Steel Institute (AISI) grades of series 2300 and higher.
     Ball bearing steels, as defined in the HTSUS.
     Tool steels, as defined in the HTSUS.
     Silico-manganese (as defined in the HTSUS) or silicon 
electrical steel with a silicon level exceeding 2.25 percent.
     ASTM specifications A710 and A736.
     USS abrasion-resistant steels (USS AR 400, USS AR 500).
     All products (proprietary or otherwise) based on an alloy 
ASTM specification (sample specifications: ASTM A506, A507).
     Non-rectangular shapes, not in coils, which are the result 
of having been processed by cutting or stamping and which have assumed 
the character of articles or products classified outside chapter 72 of 
the HTSUS.
    The merchandise subject to this investigation is classified in the 
HTSUS at subheadings: 7208.10.15.00, 7208.10.30.00, 7208.10.60.00, 
7208.25.30.00, 7208.25.60.00, 7208.26.00.30, 7208.26.00.60, 
7208.27.00.30, 7208.27.00.60, 7208.36.00.30, 7208.36.00.60, 
7208.37.00.30, 7208.37.00.60, 7208.38.00.15, 7208.38.00.30, 
7208.38.00.90, 7208.39.00.15, 7208.39.00.30, 7208.39.00.90, 
7208.40.60.30, 7208.40.60.60, 7208.53.00.00, 7208.54.00.00, 
7208.90.00.00, 7211.14.00.90, 7211.19.15.00, 7211.19.20.00, 
7211.19.30.00, 7211.19.45.00, 7211.19.60.00, 7211.19.75.30, 
7211.19.75.60, and 7211.19.75.90. Certain hot-rolled carbon steel flat 
products covered by this investigation, including: vacuum degassed 
fully stabilized; high strength low alloy; and the substrate for motor 
lamination steel may also enter under the following tariff numbers: 
7225.11.00.00, 7225.19.00.00, 7225.30.30.50, 7225.30.70.00, 
7225.40.70.00, 7225.99.00.90, 7226.11.10.00, 7226.11.90.30, 
7226.11.90.60, 7226.19.10.00, 7226.19.90.00, 7226.91.50.00, 
7226.91.70.00, 7226.91.80.00, and 7226.99.00.00. Subject merchandise 
may also enter under 7210.70.30.00, 7210.90.90.00, 7211.14.00.30, 
7212.40.10.00, 7212.40.50.00, and 7212.50.00.00. Although the HTSUS 
subheadings are provided for convenience and U.S. Customs purposes, the 
written description of the merchandise under investigation is 
dispositive.

Non-Market Economy Country Status

    The Department has treated Ukraine as a NME country in all past 
antidumping investigations. See, e.g., Notice of Preliminary 
Determinations of Sales at Less Than Fair Value: Steel Concrete 
Reinforcing Bars from Poland, Indonesia, and Ukraine, 66 FR 8343 
(January 30, 2001) and Notice of Final Determination of Sales at Less 
Than Fair Value: Certain Cut-to-Length Carbon Steel Plate from Ukraine 
(``CTL Plate from Ukraine'') 62 FR 61754 (November 19, 1997). This NME 
designation remains in effect until it is revoked by the Department 
(see section 771(18)(C) of the Act).
    During this investigation, Zaporizhstal requested revocation of 
Ukraine's NME status. Following the official endorsement of this 
request by the Ukrainian government, the Department issued its February 
26, 2001 Letter to Zaporizhstal and the Ukrainian Embassy requesting, 
inter alia, that the company and the Government of Ukraine submit 
evidence addressing the statutory criteria relevant to the NME status, 
as described in section 771(18)(B) of the Act. In addition, the 
Department requested that Zaporizhstal submit evidence of progress 
regarding those factors under section 771(18)(B) which Ukraine did not 
satisfy in its 1996 request for revocation. See CTL Plate from Ukraine, 
62 FR 61754. For purposes of our Preliminary Determination on April 23, 
2001, we continued to treat Ukraine as a NME because we had received no 
response to this request for information and there was no record 
evidence or argumentation regarding progress since the earlier 
determination.
    As noted above, after the preliminary determination, several 
submissions were made regarding NME revocation. On May 18, 2001, 
Zaporizhstal and the Ukrainian State Committee on Industrial Policy 
jointly submitted information in response to the Department's February 
26, 2001 Letter regarding market economy and market oriented industry 
issues. This submission addresses, in a narrative form, each of the 
statutory criteria specified in our February 26, 2001 Letter, and 
includes a discussion of recent factual trends, referencing certain 
relevant Ukrainian decrees/laws. On July 11, 2001, Zaporizhstal and the 
Ukrainian State Committee on Industrial Policy jointly submitted 
further commentary regarding the statutory criteria, including a more 
detailed reference to the applicable Ukrainian laws and decrees. On 
July 24, 2001, the petitioners submitted comments on Zaporizhstal's 
analysis. On August 8, 2001, the Ministry of Economy of Ukraine filed a 
submission that included much of the same information presented in the 
July 11, 2001 submission, in addition to further analysis of certain 
issues and excerpts from ``some legislative documents related to Market 
Status of Ukraine.''
    We note that, in previous instances in which the Department has 
considered

[[Page 50404]]

graduation to market economy status, initial requests for revocation of 
NME status and supporting information have been submitted at the outset 
of the proceeding. See e.g., Memorandum from Holly A. Kuga, to Troy H. 
Cribb: Antidumping Duty Investigation of Certain Steel Concrete 
Reinforcing Bars from Latvia--Request for Market Economy Status 
(January 12, 2001); Memorandum from David Mueller to Robert LaRussa: 
Antidumping Investigation of Certain Small Diameter Carbon and Alloy 
Seamless Standard Line and Pressure Pipe from the Czech Republic: Non-
Market Economy (``NME'') Country Status, (November 29, 1999); 
Memorandum from Bernard Carreau to Troy Cribb: Antidumping Duty 
Determinations on Cold-Rolled Carbon-Quality Steel Products from the 
Slovak Republic--Market vs. Non-Market Economy Analysis, (October 13, 
1999); Memorandum from Joseph A. Spetrini to Robert LaRussa: 
Antidumping Administrative Review of Tapered Roller Bearings and Parts 
Thereof, Finished or Unfinished, from Hungary--Market vs. Non-Market 
Economy (NME) Analysis Memorandum, (February 23, 2000); Respondent's 
August 28, 1992 submission in the Investigation of Sales at less than 
Fair Value: Certain Cut-to-length Carbon Steel Plate from Poland; and 
submission from the Embassy of Ukraine, dated February 12, 1997, 
Investigation of Sales at less than Fair Value; Certain Cut-to-length 
Carbon Steel Plate from Ukraine. In all of these cases the initial 
requests to revoke a country's NME status, including supporting 
information, have been submitted well in advance of the preliminary 
determination, thereby giving the Department sufficient time to conduct 
a complicated and time-consuming analysis of the factors enunciated in 
section 771(18)(B) of the Act. In this case, although Zaporizhstal's 
initial request for revocation was submitted 66 days after the 
initiation, the company submitted its first response 25 days after the 
preliminary determination and 165 days after the initiation of this 
investigation. The Government of Ukraine's response was submitted 
nearly eight months after the initiation of this investigation, which 
is only slightly more than one month prior to the extended final 
determination. Given that Zaporizhstal's and the Government of 
Ukraine's responses were submitted so late in the proceeding, we were 
unable to adequately consider and analyze them, as mandated by the 
criteria outlined in section 771(B)(18) of the Act.

Market-Oriented Industry

    As indicated above (see ``Case History''), Zaporizhstal, with the 
support of the Government of Ukraine, has requested MOI treatment for 
the hot-rolled steel industry in Ukraine. Accordingly, in our February 
26, 2001 Letter, we requested that Zaporizhstal address the 
Department's criteria for granting MOI status. On May 18, 2001, 
Zaporizhstal and the Ukrainian State Committee on Industrial Policy 
jointly submitted a response to the Department's established criteria 
for granting MOI status.
    The criteria for determining whether a MOI exists are: (1) For the 
merchandise under investigation, there must be virtually no government 
involvement in setting prices or amounts to be produced; (2) the 
industry producing the merchandise under investigation should be 
characterized by private or collective ownership; and (3) market-
determined prices must be paid for all significant inputs, whether 
material or non-material (e.g., labor and overhead), and for all but an 
insignificant portion of all the inputs accounting for the total value 
of the merchandise under review. See, e.g., Certain Small Diameter 
Carbon and Alloy Seamless Standard, Line and Pressure Pipe from 
Romania, Final Determination of Sales at Less than Fair Value, 65 FR 
39125 (June 23, 2000) (``Pressure Pipe from Romania'') and Freshwater 
Crawfish Tail Meat from the People's Republic of China, Final 
Determination of Sales at Less than Fair Value, 62 FR 41347 (August 1, 
1997) (``Crawfish from China''). Moreover, in order to make an 
affirmative determination that an industry in a NME country is a MOI, 
the Department requires information on virtually the entire industry. A 
MOI claim, and supporting evidence, must cover producers that 
collectively constitute the industry in question; otherwise, the MOI 
claim cannot be substantiated. See, id. e.g. Crawfish from China at 
41353 and Pressure Pipe from Romania at 39125.
    In this case, consistent with our Preliminary Determination, we 
continue to find that the hot-rolled industry in Ukraine does not meet 
the Department's criteria for an affirmative MOI finding because we do 
not have supporting evidence that would cover the entire hot-rolled 
industry in Ukraine. As we have noted above, there are three known 
producers of subject merchandise: Ilyich, Dnepropertrovsk, and 
Zaporizhstal. Of these three, Ilyich and Dnepropetrowsk have failed to 
respond to the Department's questionnaire. Although Zaporizhstal and 
the Government of Ukraine included in their May 18, 2001, submission 
documentation supporting MOI treatment, this documentation is specific 
to one company, Zaporizhstal, rather than to the entire hot-rolled 
industry. Moreover, we have not received any industry-wide information 
from the Government of Ukraine to support the claim that the hot-rolled 
industry is market-oriented. See Crawfish from China at 41353 
(``Consistent with past practice, we require information on the entire 
industry, or virtually the entire industry, in order to make an 
affirmative determination that an industry is market-oriented.''). 
Therefore, for purposes of our final determination, we continue to find 
that the hot-rolled industry in Ukraine does not qualify for MOI 
treatment.

Ukraine-Wide Rate

    As noted in the preliminary determination, we sent questionnaires 
to all three companies identified as potential respondents in the 
petition. We did not receive responses from Ilyich and Dnepropetrovsk. 
As discussed below in the ``Separate Rates'' section of the notice, 
Zaporizhstal has significantly impeded this investigation. Given that 
we did not make a determination of a separate rate for Zaporizhstal, it 
has been assigned the Ukraine-wide rate. In addition, U.S. import 
statistics indicate that the total quantity and value of U.S. imports 
of hot-rolled steel from Ukraine is greater than the total quantity and 
value of hot-rolled steel as reported by Zaporizhstal. See Final FA/
Corroboration Memorandum. Accordingly, we are applying the Ukraine-wide 
rate to all exporters in Ukraine based on our presumption that those 
respondents who failed to respond to our questionnaire constitute a 
single enterprise under common control by the Government of Ukraine. 
See, e.g., Final Determination of Sales at Less Than Fair Value: 
Bicycles from the People's Republic of China, 61 FR 19026 (April 30, 
1996) (``Bicycles''). Therefore, the Ukraine-wide rate applies to all 
entries of the subject merchandise from Ukraine.

Application of Facts Available

    Section 776(a) of the Act provides that, if an interested party 
withholds information that has been requested by the Department, fails 
to provide such information in a timely manner or in the form or manner 
requested, significantly impedes a proceeding under the antidumping 
statute, or provides

[[Page 50405]]

information which cannot be verified, the Department shall use, subject 
to sections 782(d) and (e) of the Act, facts otherwise available in 
reaching the applicable determination. The statute requires that 
certain conditions be met before the Department may resort to facts 
available. Where the Department determines that a response to a request 
for information does not comply with the request, section 782(d) of the 
Act provides that the Department will so inform the party submitting 
the response and will, to the extent practicable, provide that party 
the opportunity to remedy or explain the deficiency. If the party fails 
to remedy the deficiency within the applicable time limits, the 
Department may, subject to section 782(e) of the Act, disregard all or 
part of the original and subsequent responses, as appropriate. Pursuant 
to section 782(e) of the Act, the Department shall not decline to 
consider information deemed ``deficient'' under section 782(d) of the 
Act if: (1) The information is submitted by the established deadline; 
(2) the information can be verified; (3) the information is not so 
incomplete that it cannot serve as a reliable basis for reaching the 
applicable determination; (4) the interested party has demonstrated 
that it acted to the best of its ability; and (5) the information can 
be used without undue difficulties.
    In selecting from among the facts available, section 776(b) of the 
Act authorizes the Department to use an adverse inference, if the 
Department finds that an interested party failed to cooperate by not 
acting to the best of its ability to comply with the request for 
information. See also SAA at 870. The statute and the SAA provide that 
such an adverse inference may be based on secondary information, 
including information drawn from the petition.
    In accordance with sections 776(a) and (b) of the Act, for the 
reasons explained below, we determine that the use of total adverse 
facts available is warranted with respect to respondents 
Dnepropetrovsk, Ilyich, and Zaporizhstal.

Ilyich and Dnepropetrovsk

    As we have explained in our Preliminary FA/Corroboration 
Memorandum, Dnepropetrovsk and Ilyich failed to respond to the 
Department's questionnaire. Thus, pursuant to sections 776(a)(2)(A) and 
(C), we will continue using facts otherwise available with respect to 
these companies for purposes of our final determination. Moreover these 
companies' failure to respond to our requests for information 
demonstrates lack of cooperation within the meaning of section 776(b) 
of the Act. Therefore, consistent with our Preliminary Determination, 
we will continue using adverse inferences with respect to these 
companies when applying facts available for purposes of this final 
determination.

Zaporizhstal

    Although Zaporizhstal made an attempt to respond in part to the 
Department's questionnaires and supplemental questionnaires over the 
course of this proceeding, its overall responses were too incomplete to 
be used as a basis for calculating a dumping margin. For a detailed 
analysis of Zaporizhstal's responses and their underlying deficiencies, 
see Final FA/Corroboration Memorandum. Therefore, for the reasons 
described in the Final FA/Corroboration Memorandum, we determined to 
use facts otherwise available, pursuant to section 776(a)(2)(A) and (B) 
of the Act.
    We also find that the application of adverse inferences in this 
case is appropriate, pursuant to section 776(b) of the Act. In the 
course of this investigation, Zaporizhstal was afforded numerous 
opportunities to provide information in a form and manner required by 
the Department. Despite the Department's clear directions in both the 
original and many supplemental questionnaires, Zaporizhstal failed to 
provide critical information which was readily at the company's 
disposal. See Final FA/Corroboration Memorandum for a detailed 
explanation of the deficiencies in Zaporizhstal's responses.
    Thus, we find that the company did not cooperate to the best of its 
ability in responding to the Department's request for information, and 
that, consequently, an adverse inference is warranted under section 
776(b) of the Act when selecting facts available, consistent with the 
Department's practice. See e.g., Notice of Final Determination of Sales 
at Less than Fair Value: Circular Seamless Stainless Steel Hollow 
Products from Japan, 65 FR 42985 (July 12, 2000).

Selection and Corroboration of Facts Available

    Section 776(b) of the Act states that an adverse inference may 
include reliance on information derived from the petition. See also SAA 
at 829-831. Section 776(c) of the Act provides that, when the 
Department relies on secondary information (such as the petition rates) 
as facts available, it must, to the extent practicable, corroborate 
that information from independent sources that are reasonably at its 
disposal. The SAA clarifies that ``corroborate'' means that the 
Department will satisfy itself that the secondary information to be 
used has probative value. See SAA at 870. The SAA also states that 
independent sources used to corroborate may include, for example, 
published price lists, official import statistics and customs data, and 
information obtained from interested parties during the particular 
investigation. Id.
    As discussed in our Preliminary Determination, we reviewed the 
adequacy and accuracy of the information in the petition during our 
pre-initiation analysis of the petition, to the extent appropriate 
information was available for this purpose. In order to determine the 
probative value of the petition margin for use as adverse facts 
available in this determination, we have re-examined evidence 
supporting the petition calculation (as adjusted by the Department). In 
accordance with section 776(c) of the Act, to the extent practicable, 
we examined the key elements of the U.S. price and normal value 
calculations on which the Department-adjusted petition margin was based 
and compared the sources used in the initiation to information from 
independent sources reasonably at our disposal. Since the Preliminary 
Determination, we reviewed updated information from independent sources 
and made the following changes: (1) We applied an updated inflation 
factor based on the entire POI; and (2) we applied an updated exchange 
rate based upon the entire POI. We have adjusted our calculation 
accordingly. These adjustments are discussed in the Final FA/
Corroboration Memorandum at Attachment II. We conclude that the 90.33 
percent margin, the highest rate from the petition (as adjusted by the 
Department), is relevant with respect to Zaporizhstal. See Final FA/
Corroboration Memorandum at 8-10.

Separate Rates

    It is the Department's policy to assign all exporters of 
merchandise subject to investigation in a NME country a single rate, 
unless an exporter can demonstrate that it is sufficiently independent 
from government control so as to be entitled to a separate rate. In 
this case, the single responding company, Zaporizhstal, has claimed to 
be sufficiently independent to warrant a separate rate. However, given 
that Zaporizhstal failed to cooperate in this investigation to the best 
of its ability, we did not make a determination as to whether 
Zaporizhstal merits a separate rate, and are assigning a single 
country-wide rate for all exporters of subject merchandise from 
Ukraine.

[[Page 50406]]

Final Determination of Investigation

    We determine that the following weighted-average percentage margin 
exists for the period April1, 2000 through September 30, 2000:

------------------------------------------------------------------------
                                                             Weighted-
                  Exporter/manufacturer                   average margin
                                                            (in percent)
------------------------------------------------------------------------
Ukraine-Wide Rate.......................................           90.33
------------------------------------------------------------------------

Continuation of Suspension of Liquidation

    In accordance with section 735(c)(1)(B) of the Act, we are 
instructing the U.S. Customs Service (``Customs'') to continue to 
suspend liquidation of all entries of subject merchandise entered, or 
withdrawn from warehouse, for consumption on or after the date of 
publication of this notice in the Federal Register. We will instruct 
Customs to continue to require a cash deposit or the posting of a bond 
equal to the weighted-average amount by which the NV exceeds the EP, as 
indicated above. These suspension-of-liquidation instructions will 
remain in effect until further notice.

International Trade Commission Notification

    In accordance with section 735(d) of the Act, we have notified the 
International Trade Commission (``ITC'') of our determination. As our 
final determination is affirmative, the ITC will, within 45 days, 
determine 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 and all securities posted will be 
refunded or canceled. If the ITC determines that such injury does 
exist, the Department will issue an antidumping duty order directing 
Customs officials to assess antidumping duties on all imports of the 
subject merchandise entered for consumption on or after the effective 
date of the suspension of liquidation.
    This determination is issued and published in accordance with 
sections 735(d) and 777(i)(1) of the Act.

    Dated: September 21, 2001.
Faryar Shirzad,
Assistant Secretary for Import Administration.

Appendix--Issues in Decision Memorandum

I. Facts Available
    Comment 1: Factors of Production/Calculation Methodology and 
Format
    Comment 2: Product Codes
    Comment 3: Reporting of Sales
    Comment 4: Correspondence between Midland Resources' and 
Zaporizhstal's Datafiles
II. Rejection of Certain Submissions as Untimely Filed
    Comment 5: Rejection of Zaporizhstal's Submissions of June 28, 
June 29, and July 6, 2001

[FR Doc. 01-24751 Filed 10-2-01; 8:45 am]
BILLING CODE 3510-DS-P