Notice of Amended Preliminary Determination of Sales at Less Than Fair Value; Ferrovanadium from the Republic of South Africa

AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

ACTION:

Notice of Amended Preliminary Determination of Sales at Less Than Fair Value.

EFFECTIVE DATE:

September 19, 2002.

FOR FURTHER INFORMATION CONTACT:

Crystal Crittenden or Mark Manning at (202) 482-0989 or (202) 482-5253, respectively; AD/CVD Enforcement Office IV, Group II, Import Administration, Room 1870, 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 statute are references to the provisions effective January 1, 1995, the effective date of the amendments made to the Tariff Act of 1930 (the Act) by the Uruguay Round Agreements Act (URAA). In addition, unless otherwise indicated, all citations to the Department of Commerce (the Department) regulations refer to the regulations codified at 19 CFR part 351 (April 2002).

Background

On June 25, 2002, the Department preliminarily determined that imports of ferrovanadium from the Republic of South Africa (South Africa) are being, or are likely to be, sold in the United States at less than fair value (LTFV), as provided in section 733 of the Act. See Notice of Preliminary Determination of Sales at Less Than Fair Value and Postponement of Final Determination: Ferrovanadium from the Republic of South Africa, 67 FR 45083 (July 8, 2002) (Preliminary Determination). On July 9, 2002, one of the respondents, Xstrata South Africa (Proprietary) Limited (Xstrata), timely filed an allegation that the Department made several ministerial errors in its preliminary determination. In addition, during July 2002, Xstrata and Highveld Steel and Vanadium Corporation, Ltd (Highveld), the other respondent in this investigation, separately submitted letters declining the Department's request to conduct verification.

Scope of The Investigation

The scope of this investigation covers all ferrovanadium regardless of grade, chemistry, form, shape, or size. Ferrovanadium is an alloy of iron and vanadium that is used chiefly as an additive in the manufacture of steel. The merchandise is commercially and scientifically identified as vanadium. It specifically excludes vanadium additives other than ferrovanadium, such as nitride vanadium, vanadium-aluminum master alloys, vanadium chemicals, vanadium oxides, vanadium waste and scrap, and vanadium-bearing raw materials such as slag, boiler residues and fly ash. Merchandise under the following Harmonized Tariff Schedule of the United States (HTSUS) item numbers 2850.00.2000, 8112.40.3000, and 8112.40.6000 are specifically excluded. Ferrovanadium is classified under HTSUS item number 7202.92.00. Although the HTSUS item number is provided for convenience and Customs purposes, the Department's written description of the scope of this investigation remains dispositive.

Allegation of Ministerial Errors

In its July 9, 2002 submission, Xstrata alleged that the Department (1) used the wrong currency exchange rates to convert expenses reported in foreign currencies in the U.S. sales file into U.S. dollars, (2) included the wrong selling expenses in constructed value (CV), (3) failed to deduct imputed credit expenses from CV, and (4) erred by not granting Xstrata a constructed export price (CEP) offset.

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.” In addition, 19 CFR 351.224(e) notes that “the Secretary will analyze any comments received and, if appropriate, correct any significant ministerial error by amending the preliminary determination....” Ministerial errors are considered to be “significant” if, in the aggregate, their correction would result in a change of at least five absolute percentage points in, but not less than 25 percent of, the weighted-average dumping margin calculated in the original (erroneous) preliminary determination; or would result in a difference between a weighted-average dumping margin of zero (or de minimis) and a weighted-average dumping margin of greater than de minimis or vice versa (see 19 CFR 351.224(e)).

After reviewing Xstrata's allegations, we have determined, in accordance with 19 CFR 351.224(e), that the Preliminary Determination was based on several ministerial errors which are considered significant under the Department's regulations. First, we agree with Xstrata that the Department failed to merge the currency exchange rate database and the U.S. sales database by the date of sale. Because of this error, we used the wrong currency exchange rates to convert U.S. sales adjustments reported in foreign currencies into U.S. dollars. Second, we agree, in part, with Xstrata's allegation regarding the selling expenses included in CV. Specifically, we agree that we included certain movement expenses in CV, rather than selling expenses. See the Memorandum from Holly A. Kuga to Bernard T. Carreau regarding the ministerial error allegations with respect to our preliminary determination in the instant investigation, dated concurrently with this notice (Allegation of Ministerial Errors Memorandum), a public version of which is on file in room B-099 of the Department of Commerce Herbert C. Hoover building.

The alleged ministerial errors with which we do not agree concern Xstrata's assertion that the Department erred by including the wrong selling expenses in CV, failing to deduct imputed credit expenses from CV and not granting Xstrata a CEP offset. As stated in the Allegation of Ministerial Errors Memorandum, the Department determined that these allegations are not ministerial in nature, but rather involve methodological issues. See the Allegation of Ministerial Errors Memorandum for a detailed description of the ministerial error allegations and a detailed analysis thereof.

Therefore, in accordance with 19 CFR 351.224(e), we are amending the preliminary determination of the antidumping duty investigation of ferrovanadium from South Africa to reflect the correction of significant ministerial errors made in the margin calculation for Xstrata. Xstrata's revised weighted-average dumping margin is listed in the “Amended Preliminary Determination” section, below. We have also revised the all others rate to reflect the change in Xstrata's margin.

Amended Preliminary Determination

We are amending the preliminary determination of the antidumping duty investigation of ferrovanadium from South Africa to reflect the correction of the above-cited ministerial errors. The revised preliminary weighted-average dumping margins are as follows:

Suspension of Liquidation

In accordance with section 733(d) of the Act, we are directing the United States Customs Service (Customs) to continue suspending liquidation on all imports of subject merchandise from South Africa. Customs shall require a cash deposit or the posting of a bond equal to the weighted-average amount by which normal value exceeds the export price as indicated in the chart above. These suspension-of-liquidation instructions will remain in effect until further notice.

International Trade Commission Notification

In accordance with section 733(f) of the Act, we have notified the International Trade Commission of our amended preliminary determination.

Public Comment

Since Highveld and Xstrata have declined verification, the Department has assigned the following schedule for the submission of case briefs for this investigation: case briefs must be submitted to the Department no later than seven days after the date of the publication of this notice. Rebuttal briefs must be filed five days from the deadline for case briefs. A list of authorities used, a table of contents, an electronic copy of the public version on diskette, and an executive summary of issues should accompany any briefs submitted to the Department. Executive summaries should be limited to five pages total, including footnotes.

The deadline for requesting a hearing has passed. The Department received no requests for a hearing, therefore, no hearing will be held in this investigation.

We will make our final determination no later than November 20, 2002.

This determination is issued and published in accordance with sections 733(f) and 777(i) of the Act.