Notice of Final 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 Final Determination of Sales at Less Than Fair Value.

EFFECTIVE DATE:

November 29, 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, 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, as amended (the Act), by the Uruguay Round Agreements Act (URAA). In addition, unless otherwise indicated, all citations to the Department of Commerce's (the Department's) regulations refer to the regulations codified at 19 CFR part 351 (April 2002).

Final Determination

We determine that ferrovanadium from the Republic of South Africa (South Africa) is being sold, or is likely to be sold, in the United States at less than fair value (LTFV), as provided in section 735 of the Act. The estimated margins of sales at LTFV are shown in the Final Determination of Investigation section of this notice.

Background

On June 25, 2002, the Department preliminarily determined that imports of ferrovanadium from South Africa are being, or are likely to be, sold in the United States at 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). Since the preliminary determination, the following events have occurred.

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 refusing to allow the Department to verify their responses. On September 12, 2002, the Department found that the preliminary determination contained certain ministerial errors. See Notice of Amended Preliminary Determination of Sales at Less Than Fair Value; Ferrovanadium from the Republic of South Africa, 67 FR 59050 (September 19, 2002). The petitioners¹ filed their case brief on September 26, 2002. The respondents did not file case or rebuttal briefs.

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 proceeding remains dispositive.

Period of Investigation (POI)

The POI is October 1, 2000, through September 30, 2001.

Analysis of Comments Received

All issues raised in the case and rebuttal briefs by parties to this proceeding and to which we have responded are listed in the Appendix to this notice and addressed in the Memorandum from Bernard T. Carreau to Faryar Shirzad, Issues and Decision Memorandum for the Antidumping Duty Investigation of Ferrovanadium from the Republic of South Africa, (Decision Memorandum), dated concurrently with this notice, which is hereby adopted by this notice. Parties can find a complete discussion of the issues raised in this proceeding and the corresponding recommendations in this public memorandum which is on file in the Central Records Unit (CRU), room B-099, of the main Department building. In addition, a complete version of the Decision Memorandum can be accessed directly on the Web at http://ia.ita.doc.gov . The paper copy and electronic version of the Decision Memorandum are identical in content.

Use of Total Adverse Facts Available

We have assigned Highveld and Xstrata a margin based upon total adverse facts available because they refused to allow the Department to verify their responses. We are using as total adverse facts available the initiation rate of 116.00 percent, which is based on information contained in the petition. For a discussion of our application of total adverse facts available, see the Decision Memorandum which is on file in the CRU. In addition, see the Memorandum from Mark Manning to Holly A. Kuga regarding corroboration of secondary information used as total adverse facts available, dated concurrently with this notice.

Changes Since the Preliminary Determination

The Department was unable to verify the information placed on the record of this investigation by the respondents because they did not allow the Department to conduct sales and cost verifications. Therefore, rather than using the reported information which we could not verify to calculate margins for the respondents, as was done in the preliminary determination, we are basing the dumping margin for Highveld and Xstrata upon total adverse facts available.

All Others Rate

Section 735(c)(5)(B) of the Act provides that, where the estimated weighted-average dumping margins established for all exporters and producers individually investigated are zero or de minimis margins, or are determined entirely under section 776 of the Act, the Department may use any reasonable method to establish the estimated “all others” rate for exporters and producers not individually investigated. This provision contemplates that the Department may weight-average margins other than the zero, de minimis, or facts available margins to establish the “all others” rate. When the data do not permit weight-averaging such other margins, the Statement of Administrative Action (SAA) provides that the Department may use any other reasonable methods. See the SAA accompanying the URAA, H.R. Rep. No. 103-316 at 873 (1994). Because the petition contained only one estimated dumping margin, there are no additional estimated margins available with which to create the “all others” rate. Therefore, we are using the initiation margin of 116 percent as the “all others” rate.

Continuation of Suspension of Liquidation

Pursuant to section 735(c)(1)(B) of the Act, we are instructing the U.S. Customs Service (Customs) to continue to suspend liquidation of all entries of ferrovanadium from South Africa that are entered, or withdrawn from warehouse, for consumption on or after July 8, 2002 (the date of publication of the Preliminary Determination in the Federal Register). Customs shall continue to require a cash deposit or the posting of a bond equal to the estimated amount by which the normal value exceeds the U.S. price as shown below. The suspension of liquidation instructions will remain in effect until further notice.

Final Determination of Investigation

We determine that the following weighted-average percentage margins exist for the period October 1, 2000, through September 30, 2001:

International Trade Commission Notification

In accordance with section 735(d) of the Act, we have notified the International Trade Commission (ITC) of our determination. As our final determination is affirmative, the ITC will determine, within 45 days, whether these imports are causing material injury, or threat of material injury, to an industry in the United States. If the ITC determines that material injury, or threat of injury, does not exist, the proceeding will be terminated and all securities posted will be refunded or canceled. If the ITC determines that such injury does exist, the Department will issue an antidumping order directing Customs officials to assess antidumping duties on all imports of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the effective date of the suspension of liquidation.

Notification Regarding Administrative Protective Order (APO)

This notice also serves as a reminder to parties subject to APO of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305. Timely notification of return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation.

This determination is issued and published in accordance with sections 735(d) and 777(i)(1) of the Act.

Appendix Issues in Decision Memorandum

1. Application of Total Adverse Facts Available new file.