[Federal Register: March 13, 2003 (Volume 68, Number 49)]
[Notices]               
[Page 12037-12039]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr13mr03-47]                         

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DEPARTMENT OF COMMERCE

International Trade Administration

[A-821-817]

 
Notice of Amended 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 amended final determination in the less-than-fair-
value investigation of silicon metal from the Russian Federation.

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EFFECTIVE DATE: March 13, 2003.

FOR FURTHER INFORMATION CONTACT: Cheryl Werner, AD/CVD Enforcement 
Group III, Office IX, Import Administration, International Trade 
Administration, U.S. Department of Commerce, 14th Street and 
Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-
2667.

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.

Amendment of Final Results

    On February 11, 2003, the Department of Commerce (``the 
Department'') published a notice of final determination of sales at 
less than fair value in the investigation of silicon metal from the 
Russian Federation (``Russia''). Notice of Final Determination of Sales 
at Less Than Fair Value: Silicon Metal From the Russian Federation, 68 
FR 6885 (February 11, 2003) (``Final Determination'').
    Also on February 11, 2003, petitioners timely filed an allegation 
that the Department made ministerial errors in the Final Determination, 
pursuant to 19 CFR 351.224(c). Bratsk Aluminum Smelter (``BAS'') and 
(``RTL'') submitted timely rebuttal comments on February 19, 2003, in 
reply to the petitioners' ministerial error allegations. BAS and RTL 
did not submit any ministerial error allegations. ZAO Kremny 
(``Kremny'')/Sual-Kremny-Ural Ltd. (``SKU'') and Pultwen, the other 
respondent covered by the investigation, did not submit any ministerial 
error allegations or rebuttal comments in reply to petitioners' 
ministerial error allegations.

Silicon Metal Fines

    Petitioners contend that in its Final Determination, the Department 
used overstated production quantities of silicon metal in calculating 
factor usage rates. Petitioners argue that while the Department 
included fines in the total production quantities of silicon metal on 
the basis that silicon metal fines produced by BAS and Kremny/SKU 
(collectively ``respondents'') were similar in size, chemical 
composition, and price to commercial grade silicon metal, and the 
Department also concluded that the quantities of fines used in the 
calculation represented only sales of fines. Petitioners contend that 
the production quantities of fines reported by respondents and used by 
the Department included fines that were recycled and consumed in the 
production of silicon metal in addition of the fines that were sold. 
Petitioners claim this overstated the total production quantities used 
to calculate respondents' factor usage rates, and therefore, resulted 
in understated factor usage rates.
    Petitioners contend that the record shows that both respondents 
consumed recycled silicon metal fines in the production of silicon 
metal during the POI. Petitioners explain that the production 
quantities of fines reported by respondents are larger than the total 
quantities of fines sold by respondents during the POI. According to 
petitioners, Kremny/SKU and Pultwen's August 13, 2002, response shows 
that they reported a quantity of fines recycled during the POI, which 
were then included in their production quantity. See Kremny/SKU and 
Pultwen's August 13, 2002, response, at 13. Petitioners also contend 
that the Department verified that only a portion of BAS's total fine 
production quantity was sold. See BAS Verification Report, at Exhibit 
5.
    Thus, petitioners argue the Department intended to include only the 
quantity of silicon metal fines sold by respondents in the total 
production quantity but erroneously included recycled fines as well. 
Petitioners explain that to correct this error, the Department should 
(1) subtract the

[[Page 12038]]

quantities of fines that were recycled and consumed in the production 
from the total quantities of fines included in the total production 
quantities and (2) recalculate respondents' factor usage rates using 
the reduced production quantities. Petitioners explain that the volume 
of fines recycled by BAS during the POI is not in the record of this 
investigation, and therefore, as facts available, the Department should 
subtract the volume of fines sold that was verified from the total 
quantity of fines produced during the POI. Alternatively, petitioners 
also suggest that the Department could estimate the volume of fines 
recycled by BAS using the percentage amount of fines recycled by Kremny 
in relation to its total output.
    BAS and RTL contend that the Department determined in its Final 
Determination that 0-5 mm silicon metal, or fines, should be included 
in the production quantity because ``excluding fines from the 
production quantity used to calculate the reported factors would 
overstate the factors of production.'' See Issues and Decision 
Memorandum, at Comment 11. BAS and RTL argue that the Department noted: 
That fines were within the scope of this investigation; that it 
verified that BAS made sales of fines; and that these sales were not 
made at a very substantial discount compared to normal-sized silicon 
metal. See id. Thus, BAS and RTL argue that the Department determined 
that fines produced by BAS were commercial-grade silicon metal. 
Accordingly, BAS and RTL explain that pursuant to Silicon Metal from 
Brazil, the Department properly determined that production costs should 
be allocated to fines produced by BAS.
    BAS and RTL also contend that recycled fines were not included in 
the reported production quantities for BAS, which is demonstrated by 
the record. BAS and RTL explain that production documents show a small 
amount of material added to prevent the molten metal from sticking to 
the slab, but this amount was not included in BAS's reported total 
production quantity.

Department's Position

    We disagree with petitioners.
    Petitioners' request that the Department exclude recycled fines 
from the production quantity is not ministerial in nature, but rather 
involves a methodological change. This is because if the Department 
were to remove recycled fines from the total production quantity of 
silicon metal, we would not be allocating any costs to their 
production. Therefore, we would, in effect, be treating recycled fines 
as byproducts because the Department does not allocate costs to 
byproducts. This would be contrary to the Department's decision in the 
Final Determination. See Issues and Decision Memorandum, at Comment 11. 
A ministerial error is defined under 19 CFR 351.224(f) as ``an error in 
addition, subtraction, or other arithmetic function, clerical error 
resulting from inaccurate copying, duplication, or the like, and any 
other similar type of unintentional error which the Secretary considers 
ministerial.'' Petitioners' request, however, would require the 
Department to revisit its entire methodology for recognizing fines. 
Accordingly, we have not made the requested change, because it is not 
``ministerial'' in nature.

Indirect Labor

    Petitioners contend that the Department did not include indirect 
labor in the calculation of normal value for BAS in its Final 
Determination. Petitioners argue that the Department indicated that it 
intended to include both direct labor and indirect labor in the 
calculation of normal value for BAS, according to the BAS and RTL Final 
Analysis Memorandum. 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, at page 5 
(February 3, 2003) (``BAS and RTL Final Analysis Memo'') (under the 
Normal Value calculation heading: ``TOT--LABOR = DIRLAB--F + INDLAB--
F''). Petitioners explain that it is necessary to include indirect 
labor in the calculation of normal value because the surrogate-valued 
amount for factory overhead used by the Department does not include any 
amount for indirect labor. Petitioners explain that the computer 
program used by the Department to calculate the final margin for BAS 
does not include indirect labor in the calculation of normal value. 
Petitioners contend that the Department should include indirect labor 
in the calculation of normal value for BAS.
    BAS and RTL contend that petitioners have identified a 
methodological issue regarding how to account for labor costs not 
directly related to production of subject merchandise under a non-
market economy methodology, rather than an arithmetic or duplication 
error that is appropriate to address as a ministerial error. BAS and 
RTL explain that BAS reported, as indirect labor, the per-unit hours of 
personnel involved in the maintenance and servicing (e.g., cleaning, 
catering) of the production facilities, and involved in the handling of 
transportation of raw materials and finished goods. BAS and RTL note 
that BAS included an allocated amount for the hours of executives, 
managers, and specialists who are involved indirectly in the production 
of silicon metal, in its reported direct labor. BAS and RTL contend 
that the labor cost of such personnel is normally classified as factory 
overhead or selling, general and administrative expenses under standard 
accounting principles. Accordingly, because the Department values 
factory overhead and general and administrative expenses using the 
financial statements of a surrogate company, under the non-market 
economy methodology, it is not necessary to include an amount for 
indirect labor in the Department's margin calculation, because this 
would double-count these labor expenses. Therefore, because BAS's 
reported direct labor already includes allocated amounts for indirect 
labor, and because indirect labor is also included in the surrogate 
financial information used in the margin calculation, the Department 
should not include additional labor hours in its margin calculation.

Department's Position

    We agree with petitioners. We inadvertently excluded indirect labor 
in the calculation of normal value for BAS in the Final Determination. 
As BAS explained above, its reported indirect labor consists of the 
per-unit hours of personnel involved in the maintenance and servicing 
(e.g., cleaning, catering) of the production facilities, and involved 
in the handling of transportation of raw materials and finished goods, 
and is properly classified as indirect labor. Therefore, we revised our 
Final Determination, to include BAS's reported indirect labor in BAS's 
margin program calculation.

Wood Charcoal Freight Cost

    Petitioners argue that the Department incorrectly calculated the 
wood charcoal freight cost for BAS in its Final Determination. 
Petitioners argue that the Department calculated the wrong weighted-
average distance between BAS and wood charcoal suppliers. Petitioners 
contend that the Department should correct its wood charcoal freight 
cost calculation.
    BAS and RTL agree with petitioners that the Department 
miscalculated the weighted-average distance of BAS's wood charcoal 
suppliers. However, BAS and RTL disagree with petitioners' calculation 
of the per-unit freight cost for wood charcoal, and propose their own 
calculation of the per-unit freight cost for wood charcoal.

[[Page 12039]]

Department's Position

    We agree with petitioners and BAS and RTL, that we incorrectly 
calculated the weighted-average distance between BAS and wood charcoal 
suppliers. In the Final Determination, we inadvertently excluded 
certain suppliers of wood charcoal for BAS. We revised our Final 
Determination, to include the correct per-unit freight cost for wood 
charcoal in BAS's margin program calculation.
    Therefore, we are amending the Final Determination to reflect the 
correction of the above-cited ministerial errors. All changes made to 
the margin program can be found in the analysis memorandum. See 
Memorandum to the File from Cheryl Werner, Case Analyst to James C. 
Doyle, Program Manager, Final Analysis for BAS for the Amended Final 
Determination of the Antidumping Duty Investigation of Silicon Metal 
from the Russian Federation, dated March 6, 2003.
    The weighted-average dumping margins are as follows:

------------------------------------------------------------------------
                                     Final weighted-     Amended final
  Producer/manufacturer exporter      average margin    weighted average
                                        (percent)      margin  (percent)
------------------------------------------------------------------------
Bratsk Aluminum Smelter...........              77.51              79.42
ZAO Kremny/Sual-Kremny-Ural Ltd...              54.79              56.11
------------------------------------------------------------------------

    Consequently, we are issuing and publishing this amended final 
determination and notice in accordance with section 751(a)(1) of the 
Act.

    Dated: March 6, 2003.
Joseph A. Spetrini,
Acting Assistant Secretary for Import Administration.
[FR Doc. 03-6089 Filed 3-12-03; 8:45 am]