[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]