02-13007. Notice of Amended Final Determination of Sales at Less than Fair Value and Antidumping Duty Orders: Silicomanganese from India, Kazakhstan, and Venezuela

AGENCY:

Import Administration, International Trade Administration, U.S. Department of Commerce.

ACTION:

Notice of amended final determination of sales at less than fair value and antidumping duty orders.

EFFECTIVE DATE:

May 23, 2002.

FOR FURTHER INFORMATION CONTACT:

Brett Royce (India), Cheryl Werner (Kazakhstan), and Deborah Scott (Venezuela) at [phone], [phone], and [phone], respectively; Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230.

SUPPLEMENTARY INFORMATION:

The Applicable Statute and Regulations

Unless otherwise indicated, all citations to the Tariff Act of 1930, as amended (“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. In addition, unless otherwise indicated, all citations to the Department's regulations are to the regulations at 19 C.F.R. part 351 (2001).

Background

On April 2, 2002, the Department published its final determinations in the antidumping duty investigations of silicomanganese from Kazakhstan, India, and Venezuela. See Notice of Final Determination of Sales at Less than Fair Value and Final Negative Critical Circumstances Determination: Silicomanganese from India, 67 FR 15531 (April 2, 2002); Notice of Final Determination of Sales at Less than Fair Value: Silicomanganese from Kazakhstan, 67 FR 15535 (April 2, 2002); and Notice of Final Determination of Sales at Less than Fair Value: Silicomanganese from Venezuela, 67 FR 15533 (April 2, 2002).

On May 16, 2002, the International Trade Commission (“ITC”) notified the Department of its final determination pursuant to section 735(b)(1)(A)(i) of the Act that an industry in the United States is materially injured by reason of less-than-fair-value imports of subject merchandise from India, Kazakhstan, and Venezuela.

Scope of the Orders

For purposes of these orders, the products covered are all forms, sizes and compositions of silicomanganese, except low-carbon silicomanganese, including silicomanganese briquettes, fines and slag. Silicomanganese is a ferroalloy composed principally of manganese, silicon and iron, and normally contains much smaller proportions of minor elements, such as carbon, phosphorous and sulfur. Silicomanganese is sometimes referred to as ferrosilicon manganese. Silicomanganese is used primarily in steel production as a source of both silicon and manganese. 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. Silicomanganese is properly classifiable under subheading 7202.30.0000 of the Harmonized Tariff Schedule of the United States (HTSUS). Some silicomanganese may also be classified under HTSUS subheading 7202.99.5040. This scope covers all silicomanganese, regardless of its tariff classification. Although the HTSUS subheadings are provided for convenience and U.S. Customs Service (Customs) purposes, our written description of the scope remains dispositive.

The low-carbon silicomanganese excluded from this scope is a ferroalloy with the following chemical specifications: minimum 55 percent manganese, minimum 27 percent silicon, minimum 4 percent iron, maximum 0.10 percent phosphorus, maximum 0.10 percent carbon and maximum 0.05 percent sulfur. Low-carbon silicomanganese is used in the manufacture of stainless steel and special carbon steel grades, such as motor lamination grade steel, requiring a very low carbon content. It is sometimes referred to as ferromanganese-silicon. Low-carbon silicomanganese is classifiable under HTSUS subheading 7202.99.5040.

Amended Final Determination: Silicomanganese from India

On April 8, 2002, we received a submission from Eramet Marietta Inc. (Eramet) and the Paper, Allied-Industrial, Chemical and Energy Workers International Union, Local 5-0639 (collectively, petitioners) alleging two ministerial errors in the final determination calculations in the investigation of imports from India. The allegations concerned the Department's calculations for one respondent, Universal Ferro and Allied Chemicals, Ltd (Universal). See Analysis for Universal Ferro & Allied Chemicals, Ltd. (Universal) for the Final Determination in the Investigation of Silicomanganese from India for the Period April 1, 2000 Through March 31, 2001, (India Final Analysis) (March 25, 2002). The allegations were timely filed pursuant to section 351.224(c)(2) of the Department's regulations. On April 16, 2002, we received a rebuttal submission from Universal. These two allegations are addressed below.

We did not receive any timely submissions alleging ministerial errors in the India investigation with respect to the other respondent, Nava Bharat. See Memorandum on Disclosure of Final Determination Documents in the Antidumping Investigation of Silicomanganese from India: Nava Bharat Ferro Alloys, Ltd. (Nava Bharat), from Javier Barrientos, through Sally C. Gannon, to the File (April 26, 2002). No ministerial allegations were received concerning the final determinations for Kazakhstan or Venezuela.

Ministerial Allegation 1: Cost of Slag

Petitioners contend that the Department made a ministerial error in calculating the cost of slag included in Universal's total cost of manufacture (COM). Petitioners argue that the Department claimed that, for the final calculations, it was assuming that all slag was used for non-conversion products. See India Final Analysis, at 3 (“For these final calculations we are assuming that all slag was used for non-conversion products.”). Petitioners argue that the Department's calculation of the amount of slag costs to be included in COM is inconsistent with its statement that all slag costs were presumed to be consumed in the production of non-conversion silicomanganese. Specifically, petitioners maintain that the Department allocated only a portion of the total cost of slag to non-conversion silicomanganese. As per the Department's stated presumption that all slag was used for non-conversion products, petitioners claim that no allocation between conversion and non-conversion products was necessary.

Accordingly, petitioners request that the Department amend its final calculations to include all slag costs in Universal's COM.

In regard to the above allegation, the respondent maintains that petitioners selectively extracted parts of the Department's India Final Analysis to substantiate their ministerial error claim regarding the calculation of slag costs. Specifically, the respondent argues that the petitioners disregarded Department references in which the Department explicitly stated its intention to use a ratio of silicomanganese production in order to allocate slag costs. See India Final Analysis, at 2 (“We then multiplied this amount by the ratio of silicomanganese production quantity ... to total production quantity ... to derive an amount attributable to subject merchandise.”) Thus, according to the respondent, the Department's calculation method was intentional, and, therefore, there is no ministerial error.

According to the respondent, these statements by the Department regarding the use of an allocation ratio are contradicted by other statements made by the Department presuming that all slag was used for non-conversion products. According to the respondent, the Department only made this assumption as a result of its inability to locate the amount of slag used in the conversion products in Exhibit 5 of the verification exhibits. The respondent contends that it could have directed the Department to the subject information, if asked. Under these conditions, the respondent contends that there is no ministerial error, and that the Department would likely end up “confessing error before the Court of International Trade and seeking a remand.”

Department's Position:

We agree with petitioners that the Department's objective was to assume slag was used only for non-conversion silicomanganese products. We made this assumption in applying adverse facts available, given our conclusion that the respondent had not provided the proper information. However, as the respondent has verified information on the record confirming its use of slag in conversion products (Verification Exhibit 5), the application of adverse facts available is no longer warranted. Therefore, the existing allocation of slag costs used in our calculations, which is between non-conversion and conversion silicomanganese products, is correct and no correction to the final determination calculations in this regard is necessary.

Ministerial Allegation 2: Interest Expense Ratio

Petitioners argue that the Department committed a ministerial error in its calculation of the ratio used to calculate the interest expense component of Universal's cost of production (COP). According to petitioners, based on the data in the India Final Analysis, the Department incorrectly calculated the revised interest expense ratio. As a result, they state that the Department should amend its final calculations to incorporate the correct interest expense ratio in the calculation of Universal's total COP. Respondent did not comment on this allegation.

Department's Position:

The Department agrees with petitioners in that, based on the data in the India Final Analysis, the ratio used to calculate the interest expense component of Universal's COP was calculated inaccurately as a result of an arithmetic error. The Department is revising its final calculations to incorporate the correct interest expense ratio in Universal's total COP for this amended final determination. See Analysis for Universal Ferro & Allied Chemicals, Ltd. (Universal) for the Amended Final Determination in the Investigation of Silicomanganese from India for the Period April 1, 2000 Through March 31, 2001 (May 17, 2002). As a result of this modification to the interest expense ratio, the margin for Universal has changed along with the “all others” rate, which was based on the average of the rates for Nava Bharat and Universal. Universal's margin has increased from 20.42 percent to 20.53 percent, and the “all others” rate has increased from 17.69 percent to 17.74 percent.

Antidumping Duty Orders

In accordance with section 736(a)(1) of the Act, the Department will direct the Customs Service 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 relevant entries of silicomanganese from India, Kazakhstan, and Venezuela. The antidumping duties will be assessed on all unliquidated entries of silicomanganese from India, Kazakhstan, and Venezuela entered, or withdrawn from warehouse, for consumption on or after November 9, 2001, the date on which the Department published its notices of preliminary determination in the Federal Register. Customs must require, at the same time as importers would normally deposit estimated duties on this merchandise, a cash deposit equal to the estimated weighted-average antidumping duty margins as noted below. The “all others” and “Kazakhstan-wide” rates apply to all exporters of subject merchandise not specifically listed. The weighted-average dumping margins are as follows:

Exporter/Manufacturer	Weighted-Average Margin
India
Nava Bharat Ferro ­Alloys, Ltd.	15.32%
Universal Ferro and ­Allied Chemicals, Ltd.	20.53%
All Others	17.74%
Kazakhstan
Alloy 2000, S.A.	247.88%
Kazakhstan-Wide	247.88%
Venezuela
Hornos Electricos de Venezuela, S.A.	24.62%
All Others	24.62%

This notice constitutes the antidumping duty orders with respect to silicomanganese from India, Kazakhstan, and Venezuela, pursuant to section 736(a) of the Act. 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.

These orders are published in accordance with section 736(a) of Act and 19 C.F.R. 351.211.

Dated: May 17, 2002

Faryar Shirzad,

Assistant Secretary for Import Administration.