Suspension Agreement on Silicomanganese From Ukraine; Termination of Suspension Agreement and Notice of Antidumping Duty Order

AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

ACTION:

Termination of the suspension agreement on silicomanganese from Ukraine and notice of antidumping duty order.

SUMMARY:

On July 19, 2001, the Government of Ukraine (“GOU”) submitted a memorandum to the Department of Commerce (“the Department”) officially requesting termination of the suspension agreement on silicomanganese from Ukraine (“the Agreement.”) In accordance with section XIII of the Agreement, termination shall be effective 60 days after notice of termination of the Agreement is given to the Department. Pursuant to both petitioner's and respondents' request of November 1, 1994, the Department issued a final determination in this investigation (See Notice of Final Determination of Sales at Less Than Fair Value: Silicomanganese From Ukraine, 59 FR 62711-01 (December 6, 1994). Because the International Trade Commission (“ITC”) determined that an industry in the United States was materially injured by reason of imports of silicomanganese from Ukraine that were being sold at less than fair value, the Department hereby issues an antidumping duty order, effective 60 days from the termination request of the GOU, i.e., September 17, 2001.

EFFECTIVE DATE:

September 17, 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.

SUPPLEMENTAL INFORMATION:

The Applicable Statute

Unless otherwise indicated, all citations to the statute are references to section 735(d) of the Tariff Act of 1930 (1993) (“the Act”). In addition, unless otherwise indicated, all citations to the Department's regulations are to 19 CFR Part 353 (1993).

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 December 21, 1994, the ITC determined that an industry in the United States was materially injured by reason of imports of silicomanganese from Ukraine that were being sold at less than fair value. (See Silicomanganese from Brazil, China, Ukraine and Venezuela, Inv. Nos. 731-TA-671-674 (Final) USITC Pub. 2836 (December 1994)).

On November 30, 1999, petitioner submitted a request for an administrative review of the Agreement 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 published the preliminary results of its administrative review of the Agreement on Silicomanganese from Ukraine (65 FR 75921) (“Preliminary Results”).

On November 2, 1999, the Department initiated (Notice of Initiation of Five-Year “Sunset” Reviews, 64 FR 59160) and the 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 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 (Final Results of Full Sunset Review: Silicomanganese from Ukraine, 65 FR 58045). On February 5, 2001, the ITC determined that termination of 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 (Silicomanganese from Brazil, China, and Ukraine Investigations Nos. 731-TA-671-673 (Review), 66 FR 8981; ITC Publication # 3386). Therefore, on February 16, 2001, the Department published its notice of 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, which continued the suspended investigation on silicomanganese from Ukraine, pursuant to sections 751(c) and 752 of the Act.

On June 11, 2001, the Department published its final results of administrative review of the suspended investigation on silicomanganese from Ukraine. See Suspension Agreement on Silicomanganese from Ukraine; Final Results of Administrative Review, 66 FR 31206. In that notice, the Department found that the GOU was not in compliance with the Agreement during the period of review, November 1, 1998 through October 31, 1999, and stated that “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.” (Id. at 31208) As a result, on June 4, 2001, the Department requested emergency consultations with the GOU under Article XII of the Agreement. In accordance with the Agreement, consultations were held between the Department and the GOU on June 7, June 12, and July 5, 2001 (See Memorandum to the File from Lesley Stagliano through Joe Spetrini, July 12, 2001).

On July 19, 2001, as provided for by Article XII of the Agreement, the GOU submitted a Memorandum concluding that “the Ministry of Economy of Ukraine has in good faith fulfilled its obligations within the framework of the Agreement suspending the Antidumping investigation on silicomanganese from Ukraine.” However, the GOU, “taking into consideration a different viewpoint of the U.S. Department of Commerce,” asked the Department “to consider [the Memorandum] as an official request to terminate the Agreement Suspending the Antidumping Investigation on Silicomanganese from Ukraine.”

Scope of Agreement

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.

Termination of Suspended Investigation and Issuance of Antidumping Duty Order

Article XIII of the Agreement states:

The Government of Ukraine may terminate this Agreement at any time upon notice to the Department. Termination shall be effective 60 days after such notice is given to the Department. Upon termination at the request of the Government of Ukraine, the provisions of section 734(i) of the Act shall apply.

Because the underlying investigation in this proceeding was continued, the Department made a final determination of dumping, and the ITC found material injury, the investigation was completed. The applicable statute at section 734(i)(1)(A) stipulates that the Department shall:

Suspend liquidation under section 733(d)(1) of unliquidated entries of the merchandise made on or after the later of (i) the date which is 90 days before the date of publication of the notice of suspension of liquidation, or (ii) the date on which the merchandise was in violation of the agreement, or under an agreement which no longer meets the requirements of subsection (b) and (d) or (c) and (d), was first entered, or withdrawn from warehouse, for consumption * * *

The GOU's termination is effective September 17, 2001, which is the date the Agreement will no longer meet the requirements of section 734(d) of the Act. Therefore, the Department will direct Customs to suspend liquidation effective September 17, 2001. In accordance with section 734(i)(1)(C) of the Act, the Department hereby issues an antidumping duty order effective September 17, 2001, which is 60 days from date of the termination request of the GOU.

Antidumping Duty Order

In accordance with section 736(a)(1) of the Act, the Department will direct Customs to assess, upon further advice by the Department, antidumping duties equal to the amount by which the normal value of the merchandise exceeds the export price (or constructed export price) of the merchandise for all entries of silicomanganese from Ukraine. These antidumping duties will be assessed on all unliquidated entries of silicomanganese from Ukraine entered, or withdrawn from warehouse, for consumption on or after September 17, 2001.

We will instruct the Customs Service to require a cash deposit for each entry equal to the antidumping duty margins found in our final determination of December 6, 1994, as listed below. These suspension-of-liquidation instructions will remain in effect until further notice. The “Ukraine-Wide Rate” applies to all producers and exporters of subject silicomanganese not specifically listed. The final weighted-average dumping margins are as follows:

This notice constitutes the antidumping duty order with respect to silicomanganese from Ukraine. Interested parties may contact the Department's Central Records Unit, room B-099 of the main Commerce building, for copies of an updated list of antidumping duty orders currently in effect.

This notice is published in accordance with sections 734(i), and 777(i) of the Act. This order is published in accordance with section 736(a) of the Tariff Act of 1930, as amended.