[Federal Register: February 11, 2003 (Volume 68, Number 28)]
[Notices]
[Page 6885-6889]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr11fe03-39]
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DEPARTMENT OF COMMERCE
International Trade Administration
[A-821-817]
Notice of Final Determination of Sales at Less Than Fair Value:
Silicon Metal From the Russian Federation
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
ACTION: Notice of final determination in the less-than-fair-value
investigation of silicon metal from the Russian Federation.
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SUMMARY: We determine that silicon metal from the Russian Federation
(``Russia'') is being, or is likely to be, sold in the United States at
less than fair value. On September 20, 2002, the Department of Commerce
published a notice of preliminary determination of sales at less than
fair value in the investigation of silicon metal from Russia. See
Notice of Preliminary Determination of Sales at Not Less Than Fair
Value and Postponement of Final Determination: Silicon Metal from the
Russian Federation, 67 FR 59253 (September 20, 2002) (``Preliminary
Determination''). This investigation covers two manufacturers of the
subject merchandise. The period of investigation (``POI'') is July 1,
2001, through December 31, 2001.
Based upon our verification of the data and analysis of the
comments received, we have made changes in the margin calculations.
Therefore, the final determination of this investigation differs from
the preliminary determination. The final weighted-average dumping
margin is listed below in the section titled ``Continuation of
Suspension of Liquidation.''
EFFECTIVE DATE: February 11, 2003.
[[Page 6886]]
FOR FURTHER INFORMATION CONTACT: James Doyle or Cheryl Werner, Import
Administration, International Trade Administration, U.S. Department of
Commerce, 14th Street and Constitution Avenue, NW., Washington, DC
20230; telephone: (202) 482-0159 and (202) 482-2667, respectively.
Background
This investigation was initiated on March 27, 2002. See Notice of
Initiation of Antidumping Duty Investigation: Silicon Metal from the
Russian Federation, 67 FR 15791 (April 3, 2002) (``Notice of
Initiation'''). The Department set aside a period for all interested
parties to raise issues regarding product coverage. See Notice of
Initiation. The Department received no comments on product coverage
from interested parties.
On August 27, 2002, the Department determined that Pultwen Ltd.
(``Pultwen'') and a U.S. trading company were affiliated through a
principal/agent relationship. See Memorandum For Joseph A. Spetrini,
Deputy Assistant Secretary for Import Administration, Group III:
Antidumping Investigation of Silicon Metal from Russia; Affiliation
Memorandum of Pultwen Limited and U.S. Trading Company, dated August
27, 2002 (``Affiliation Memo for Pultwen and U.S. Trading Company'').
On August 28, 2002, we again requested that ZAO Kremny (``Kremny'')/
Sual-Kremny-Ural Ltd. (``SKU'') and Pultwen provide their affiliated
U.S. trading company's sales and received their response on September
4, 2002. On September 13, 2002, Kremny/SKU and Pultwen submitted an
unsolicited additional response to the Department's August 28, 2002,
request for the affiliated U.S. trading company's sales. On October 2,
2002, Kremny/SKU and Pultwen submitted an untimely response by their
affiliated U.S. trading company to Section C of the Department's
antidumping questionnaire and a revised U.S. sales listing which
included sales of silicon metal made by the U.S. trading company to its
U.S. customers. On October 18, 2002, petitioners submitted comments on
the untimely U.S. sales data. On October 31, 2002, the Department
rejected the October 2, 2002, response submitted by Kremny/SKU and
Pultwen, because it was untimely filed factual information pursuant to
19 CFR 351.302 (d) of the Department's regulations.
On September 26, 2002, Kremny/SKU and Pultwen submitted a request
for a hearing pursuant to Section 351.310(c). On September 30, 2002,
Bratsk Aluminum Smelter (``BAS'') and Rual Trade Limited (``RTL'')
submitted a request for a hearing and on October 18, 2002, petitioners
also submitted a request for a hearing.
On September 27, 2002, the Department received a joint submission
from BAS, RTL, Kremny/SKU, and Pultwen providing additional surrogate
country factor values pursuant to Section 351.301(c)(3)(i). On November
27, 2002, we also received a joint submission from BAS, RTL, Kremny/
SKU, and Pultwen providing surrogate country factor values. On December
9, 2002, petitioners submitted additional surrogate country factor
values.
On October 9, 2002, through October 11, 2002, the Department
conducted a factors of production verification of Kremny. See
Memorandum from Carrie Blozy and Catherine Bertrand, Case Analysts, to
the File: Verification of Factors of Production for ZAO Kremny
(``Kremny'') plant in the Antidumping Duty Investigation of Silicon
Metal from the Russian Federation, (December 4, 2002) (``Kremny
Verification Report''). On October 31, 2002, through November 1, 2002,
the Department conducted a U.S. sales verification of Pultwen See
Memorandum from James C. Doyle, Program Manager, and Cheryl Werner,
Case Analyst, to the File: Verification of U.S. Sales for Pultwen Ltd.
(``Pultwen'') in the Antidumping Duty Investigation of Silicon Metal
from the Russian Federation, (December 4, 2002) (``Pultwen Verification
Report''). ?
On October 23, 2002, through October 25, 2002, the Department
conducted a factors of production verification of BAS. See Memorandum
from James C. Doyle, Program Manager, and Cheryl Werner, Case Analyst,
to the File: Verification of Factors of Production for Bratsk Aluminum
Smelter (``BAS'') in the Antidumping Duty Investigation of Silicon
Metal from the Russian Federation, (December 5, 2002) (``BAS
Verification Report''). On October 28, 2002, through October 29, 2002,
the Department conducted a U.S. sales verification of RTL. See
Memorandum from James C. Doyle, Program Manager, and Cheryl Werner,
Case Analyst, to the File: Verification of U.S. Sales for Rual Trade
Limited (``RTL'') (December 5, 2002) (``RTL Verification Report'').
We invited parties to comment on our Preliminary Determination. On
December 17, 2002, petitioners, BAS and RTL, and Kremny/SKU and Pultwen
submitted case briefs with respect to the sales and factors of
production verifications and the Department's Preliminary
Determination. Petitioners, BAS and RTL, and Kremny/SKU and Pultwen
submitted their rebuttal briefs on December 24, 2002, with respect to
the sales and factors of production verifications and the Department's
Preliminary Determination. On January 7, 2003, the Department held a
public hearing in accordance with 19 CFR 351.310(d)(1). Representatives
for petitioners, BAS and RTL, and Kremny/SKU and Pultwen were present.
All parties present were allowed an opportunity to make affirmative
presentations only on arguments included in that party's case briefs
and were also allowed to make rebuttal presentations only on arguments
included in that party's rebuttal brief.
On January 28, 2003, the Department placed publicly available
surrogate value data for petroleum coke on the record. The Department
provided all parties an opportunity to comment on this value. On
January 30, 2003, the Department received comments from BAS and RTL and
petitioners.
Additionally, on February 3, 2003, the Department continued to find
Pultwen and the U.S. trading company were affiliated. See Memorandum
For Joseph A. Spetrini, Deputy Assistant Secretary for Import
Administration, Group III: Antidumping Investigation of Silicon Metal
from Russia; Final Affiliation Memorandum of Pultwen Limited and U.S.
Trading Company, dated February 3, 2003 (``Final Affiliation Memo'').
The Department has conducted and completed the investigation in
accordance with section 735 of the Act.
Scope of Investigation
For purposes of this investigation, the product covered is silicon
metal, which generally contains at least 96.00 percent but less than
99.99 percent silicon by weight. The merchandise covered by this
investigation also includes silicon metal from Russia containing
between 89.00 and 96.00 percent silicon by weight, but containing more
aluminum than the silicon metal which contains at least 96.00 percent
but less than 99.99 percent silicon by weight. Silicon metal currently
is classifiable under subheadings 2804.69.10 and 2804.69.50 of the
Harmonized Tariff Schedule of the United States (``HTSUS''). This
investigation covers all silicon metal meeting the above specification,
regardless of tariff classification.
Analysis of Comments Received
All issues raised in the case and rebuttal briefs to this
investigation are addressed in the Issues and Decision Memorandum from
Joseph A. Spetrini, Deputy Assistant Secretary, to Faryar Shirzad,
Assistant Secretary (February 3, 2003) (``Decision Memo''), which is
hereby adopted by this notice. A list of
[[Page 6887]]
the issues which parties have raised and to which we have responded,
and other issues addressed, is attached to this notice as an Appendix.
Parties can find a complete discussion of all issues raised in this
investigation and the corresponding recommendations in the Decision
Memo, a public memorandum which is on file at the U.S. Department of
Commerce, in the Central Records Unit, in room B-099. In addition, a
complete version of the Decision Memo can be accessed directly on the
Web at http://ia.ita.doc.gov. The paper copy and electronic version of
the Decision Memo are identical in content.
Changes Since the Preliminary Determination
Based on our findings at verification, and analysis of comments
received, we have made adjustments to the calculation methodology in
calculating the final dumping margin in this proceeding. See Analysis
Memorandum of Bratsk Aluminum Smelter and Rual Trade Limited: Final
Determination in the Less Than Fair Value Investigation of Silicon
Metal from the Russian Federation (February 3, 2003) (``BAS and RTL
Final Analysis Memo''). Also, see Analysis Memorandum of ZAO Kremny/
Sual-Kremny-Ural Ltd. and Pultwen Ltd.: Final Determination in the Less
Than Fair Value Investigation of Silicon Metal from the Russian
Federation (February 3, 2003) (``Kremny/SKU and Pultwen Final Analysis
Memo'').
Verification
As provided in section 782(i) of the Act, we verified the
information submitted by BAS and RTL and Kremny/SKU and Pultwen for use
in our final determination. We used standard verification procedures
including examination of relevant accounting and production records,
and original source documents provided by BAS and RTL and Kremny/SKU
and Pultwen. For changes from the Preliminary Determination as a result
of verification, see BAS and RTL Final Analysis Memo or Kremny/SKU and
Pultwen Final Analysis Memo.
Nonmarket Economy Country
On June 6, 2002, the Department revoked Russia's status as a non-
market economy (``NME''), effective April 1, 2002. See Memorandum from
Albert Hsu, Barbara Mayer, and Christopher Smith through Jeffrey May,
Director, Office of Policy, to Faryar Shirzad, Assistant Secretary,
Import Administration: Inquiry into the Status of the Russian
Federation as a Non-Market Economy Country under the U.S. Antidumping
Law, dated June 6, 2002. Because the period of investigation pre-dates
the effective date of the Department's determination, we are continuing
to utilize the NME methodology in this investigation. Should an
antidumping order be issued in this case, the NME antidumping duty
rates will remain in effect until they are changed as a result of a
review, pursuant to section 751 of the Act, of a sufficient period of
time after April 1, 2002.
Separate Rates
In our Preliminary Determination, we found that the respondents had
met the criteria for the application of separate antidumping duty
rates. We have not received any other information since the Preliminary
Determination which would warrant reconsideration of our separates
rates determination with respect to the respondents. Therefore, we
continue to find that the respondents should be assigned individual
dumping margins. For a complete discussion of the Department's
determination that the respondents are entitled to separate rates, see
the Preliminary Determination.
Russia-Wide Rate
For the reasons set forth in the Preliminary Determination, we
continue to believe that use of adverse facts available for the Russia-
wide rate is appropriate. See Preliminary Determination.
Use of Facts Otherwise Available
Section 776(a)(2) 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 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.
Thus, pursuant to section 776(a) of the Act, the Department is required
to apply, subject to section 782(d), facts otherwise available.
Pursuant to section 782(e), the Department shall not decline to
consider such information if all of the following requirements are met:
(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 addition, section 776(b) of the Act provides
that, if the Department finds that an interested party ``has failed to
cooperate by not acting to the best of its ability to comply with a
request for information,'' the Department may use information that is
adverse to the interests of the party as the facts otherwise available.
The statute also provides that such an adverse inference may be based
on secondary information, including information drawn from the
petition, a final determination in an investigation, any previous
administrative review, or any other information placed on the record.
In the Preliminary Determination, the Department applied total
facts available for the Russia-wide rate using BAS's calculated margin,
as it was the highest margin. For the final determination, BAS's
calculated margin is less than the margin in the petition. Section
776(b) of the Act also provides that an adverse inference may include
reliance on information from the petition. See also Statement of
Administrative Action accompanying the Uruguay Round Agreements Act,
H.R. Rep. No. 103-316 at 870 (1994) (``SAA''). Section 776(c) of the
Act provides that where the Department selects from among the facts
otherwise available and relies on ``secondary information,'' such as
the petition, the Department shall to the extent practicable,
corroborate that information from independent sources reasonably at the
Department's disposal. The SAA states that ``corroborate'' means to
determine that the information used has probative value. See SAA, at
870. The petitioners' methodology for calculating the EP and NV, in the
petition, is discussed in the initiation notice. To corroborate the
petitioners' EP calculations, we compared the prices in the petition to
the prices submitted by respondents for silicon metal. Based on a
comparison of the U.S. Census Bureau's official IM-145 import
statistics with the average unit values in the petition, we find the
export price suggested in the petition to be consistent with those
statistics. To corroborate the petitioners' NV calculation, we compared
the petitioners' factor consumption data to the data reported by
respondents and found them to be similar. Finally, we valued the
factors in the petition using the surrogate values we selected for the
final determination. However, by using the surrogate values we selected
for the final determination, the petition margin is lower than BAS's
calculated margin. Therefore, for the final determination, we have
continued to apply total facts
[[Page 6888]]
available for the Russia-wide rate using BAS's calculated margin for
the final determination.
Also in the Preliminary Determination, for Kremny/SKU, we applied
partial facts available for the quantity of unreported sales by the
U.S. trading company. We continue to find partial facts available are
appropriate for valuing the quantity of unreported sales by the U.S.
trading company and will continue to apply partial adverse facts
available for the final determination. See Decision Memo, at Comment
19. As discussed above, BAS's calculated margin for the final
determination is the highest corroborated margin in this investigation.
Therefore, we have continued to apply partial adverse facts available
to the quantity of unreported sales by the U.S. trading company using
BAS's calculated margin for the final determination.
Additionally, we are applying adverse facts available to certain
unreported raw materials by Kremny. See Decision Memo, at Comment 11.
We are using the highest surrogate value for a mineral to value the
quantity of unreported raw materials.
Critical Circumstances
In the Department's Preliminary Determination, we determined that
critical circumstances exist for imports of silicon metal from Russia
manufactured and/or exported by the Russia-wide entity. We
preliminarily found, however, that critical circumstances do not exist
for BAS and RTL and Kremny/SKU and Pultwen because there was no
evidence of ``massive imports'' based on a five-month comparison
period. At the time of the Preliminary Determination, the Department
received shipment data from BAS and RTL and Kremny/SKU and Pultwen
through July 2002. Since the Preliminary Determination, BAS and RTL and
Kremny/SKU and Pultwen have submitted shipment data through November
2002 . We have reviewed this data and we continue to find that critical
circumstances do not exist for BAS and RTL and Kremny/SKU and Pultwen
based on the lack of ``massive imports'' as shown by the six-month
shipment data. However, we continue to find that critical circumstances
exist for the Russia-wide entity as discussed in the Preliminary
Determination.
Suspension Agreement
On October 1, 2002, we received a joint request from the two
primary exporters of silicon metal from Russia, BAS and Kremny/SKU,
proposing a suspension agreement pursuant to 734(c) of the Act. Under a
suspension agreement concluded pursuant to section 734(c) of the Act,
the normal value cannot exceed the U.S. market price by more than 15
percent. Morever, we may only accept a suspension agreement under
734(c) of the Act if we determine that ``extraordinary circumstances
are present in a case,'' such as the suspension of the investigation
will be more beneficial to the domestic industry than the continuation
of the investigation, and the investigation is complex. No agreement
was concluded.
Fair Value Comparisons
To determine whether sales of silicon metal from Russia were made
in the United States at less than fair value, we compared export price
to NV, as described in the ``Export Price'' and ``Normal Value''
sections of the Preliminary Determination. In accordance with section
777A(d)(1)(A)(i) of the Act, we calculated weighted-average EPs.
Surrogate Country
For purposes of the final determination, we continue to find that
Egypt remains the appropriate primary surrogate country for Russia. For
certain factors of production values, where we could not locate usable
Egyptian prices, we used Thai import prices (for charcoal) or domestic
South African prices (for quartzite and quartzite fines). For further
discussion and analysis regarding the surrogate country selection for
Russia, see the ``Surrogate Country'' section of our Preliminary
Determination and the Issues and Decision Memorandum, at Comments 1-9.
Continuation of Suspension of Liquidation
In accordance with section 735(c)(1)(B) of the Act, we are
directing the U.S. Customs Service (``Customs'') to continue to suspend
liquidation of imports of subject merchandise, which is produced by BAS
and Kremny/SKU, and entered, or withdrawn from warehouse, for
consumption on or after the date of publication of the Preliminary
Determination in the Federal Register. Additionally, in accordance with
section 735(c)(1)(B) of the Act, we are directing Customs to continue
to suspend liquidation of imports of subject merchandise, which is
produced by the Russia-wide entity (all entries of subject merchandise
except for entries of Kremny/SKU or BAS material), and entered, or
withdraw from warehouse, for consumption on or after the date following
90 days prior to the date of publication of the Preliminary
Determination 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 below. These suspension of liquidation instructions will
remain in effect until further notice. The weighted-average dumping
margins are as follows:
Silicon Metal
------------------------------------------------------------------------
Weighted-
Average
Exporter margin
(percent)
------------------------------------------------------------------------
Kremny/SKU................................................. 54.77
BAS........................................................ 77.51
Russia-Wide Rate........................................... 77.51
------------------------------------------------------------------------
Disclosure
The Department will disclose calculations performed, within five
days of the date of publication of this notice, to the parties in this
investigation, in accordance with section 351.224(b) of the
Department's regulations.
International Trade Commission Notification
In accordance with section 735(d) of the Act, we have notified the
ITC of our affirmative determination of sales at LTFV. As our final
determination is affirmative, the ITC will determine within 45 days
after our final determination whether imports of silicon metal from
Russia 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 cancelled. 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 notice also serves as a reminder to parties subject to
administrative protective order (``APO'') of their responsibility
concerning the disposition of proprietary information disclosed under
APO in accordance with 19 CFR 351.305. Timely notification of return or
destruction of APO materials, or conversion to judicial protective
order, is hereby requested. Failure to comply with the regulations and
the terms of APO is a sanctionable violation.
[[Page 6889]]
This determination is issued and published in accordance with
sections 735(d) and 777(i)(1) of the Act.
Dated: February 3, 2003.
Faryar Shirzad,
Assistant Secretary for Import Administration.
Appendix I
Petitioners' Comments
Comment 1: Egypt as a primary surrogate country
Comment 2: Valuation of quartzite
Comment 3: Valuation of coal
Comment 4: Valuation of petroleum coke
Comment 5: Valuation of wood charcoal
Comment 6: Valuation of electrodes
Comment 7: Valuation of rail freight
Comment 8: Valuation of electricity
Comment 9: Valuation of financial ratios
Comment 10: Valuation of profit
Comment 11: Silicon metal fines
Comment 12: Kremny's unreported raw materials
Comment 13: RTL's date of sale
Comment 14: Pultwen's sales to a certain U.S. customer
Comment 15: Discounts
Comment 16: Brokerage and handling expenses
Comment 17: Expenses Related to a Certain Sale
Kremny/SKU's and Pultwen's Comments
Comment 18: Relationship between Pultwen and the U.S. trading
company
Comment 19: Use of Adverse Facts Available regarding the U.S.
trading company's sales
BAS's and RTL's Comments
Comment 20: Valuing of inland freight added to surrogate import
values for raw materials
Comment 21: Packing materials
Comment 22: Electricity usage
Comment 23: Insurance expense
Comment 24: Labor hours
Comment 25: Electrodes
[FR Doc. 03-3408 Filed 2-10-03; 8:45 am]