Council Regulation (EC) No 495/98 of 23 February 1998 imposing a definitive anti-dumping duty on imports of ferro-silico-manganese originating in the People's Republic of China, amending Regulation (EC) No 2413/95 in respect of anti-dumping measures concerning imports of ferro-silico-manganese originating in Ukraine and terminating the proceeding in respect of imports of ferro-silico-manganese originating in Brazil, South Africa and Russia
Date: 1998-02-23
Institutions: Council of the European Union
Subjects: China, anti-dumping duty, ferro-alloy, import, originating product, third country

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I

(Acts whose publication is obligatory)

COUNCIL REGULATION (EC) No 495/98

of 23 February 1998

imposing a definitive anti-dumping duty on imports of ferro-silico-manganese
originating in the People’s Republic of China, amending Regulation (EC) No
2413/95 in respect of anti-dumping measures concerning imports of ferro-silico-
manganese originating in Ukraine and terminating the proceeding in respect of
imports of ferro-silico-manganese originating in Brazil, South Africa and Russia

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European
Community,

Having regard to Council Regulation (EC) No 384/96 of
22 December 1995 on protection against dumped
imports from countries not members of the European
Community (1), and in particular Articles 9(4) and 11(3)
thereof,

Having regard to the proposal submitted by the Commis-
sion after consulting the Advisory Committee,

Whereas:

A. PROCEDURE

1. General

(1)

(2)

By Regulation (EC) No 2413/95 (2), the Council
imposed definitive anti-dumping duties on imports
of
ferro-silico-manganese originating in Brazil,
Russia, South Africa and Ukraine. The measures
imposed took the form of variable duties, set as the
difference between a minimum import price for
the countries concerned and the net
each of
free-at-Community frontier price, before duty, in
all cases where the net, free-at-Community frontier
price, before duty,
is less than the minimum
import price.

In addition, the Commission accepted undertak-
ings (3) offered by the South African and Ukrainian
exporters. Subsequently, however, one of the South
African exporters withdrew its undertaking, thus
the definitive
necessitating the amendment of
measures imposed by Regulation (EC) No 2413/95
by Regulation (EC) No 92/96 (4) and the imposi-

(1) OJ L 56, 6. 3. 1996, p. 1. Regulation as amended by Regula-

tion (EC) No 2331/96 (OJ L 317, 6. 12. 1996, p. 1).

(2) OJ L 248, 14. 10. 1995, p. 1.
(3) OJ L 248, 14. 10. 1995, p. 56.
(4) OJ L 18, 24. 1. 1996, p. 1.

tion of a variable duty against the company in
question. Unless otherwise specified,
the invest-
igation which led to the imposition of the above
measures is hereinafter referred to as ‘the original
investigation'.

the Commission to

the Council
In Regulation (EC) No 2413/95,
the
examine
requested
Community market
ferro-silico-manganese
for
following the imposition of the measures and to
initiate a review thereof as promptly as possible, if
the circumstances so warranted. As the available
economic indicators showed that the market price
for the product in question had dropped by 13 %
between October 1995 and August 1996, it was
decided to initiate an interim review of the meas-
ures for all the countries concerned.

To this end, on 17 December 1996, the Commis-
sion announced, by a notice published in the Offi-
cial Journal of the European Communities (5), the
initiation of an interim review of Regulation (EC)
No 2413/95, in respect of ferro-silico-manganese
originating in Brazil, Russia, South Africa and
Ukraine, and commenced an investigation (herein-
after
the ‘review investigation')
pursuant to Article 11(3) of Regulation (EC) No
384/96 (hereinafter referred to as ‘the Basic Regula-
tion').

referred to as

imports of

On the same date, a parallel investigation (6) was
ferro-silica-
initiated in respect of
manganese originating in the People’s Republic of
China (hereinafter referred to as the ‘new investiga-
tion'), following a complaint lodged by EuroAl-
liages,
the
ferro-silico-manganese.
Community producers of

representing

Association

the

(3)

(4)

(5)

(5) OJ C 381, 17. 12. 1996, p. 5.
(6) OJ C 381, 17. 12. 1996, p. 4.

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(6)

(7)

(8)

(9)

(hereinafter
By Regulation (EC) No 1778/97 (1)
referred to as the ‘provisional Regulation'),
the
Commission imposed a provisional anti-dumping
duty on imports
the
in question originating in the People’s
product
Republic of China.

into the Community of

This Regulation therefore contains the definitive
findings for both the new investigation concerning
the People’s Republic of China and the review
investigation concerning Brazil, Russia, South
Africa and Ukraine. Owing to the need for further,
detailed examination of certain of the issues raised
the investigations exceeded the
in both cases,
normal period of twelve months provided for in
Articles 6(9) and 11(5) of the Basic Regulation.

The Commission sought and verified all informa-
tion it deemed necessary for the purposes of a
definitive determination in both investigations.

2. Review investigation

As concerns the review investigation, the Commis-
sion officially advised the Brazilian, Russian, South
African and Ukrainian exporting companies, as
well as the importers known to be concerned, the
representatives of the exporting countries and the
complainant in the original
investigation of the
initiation of the investigation. The parties directly
concerned were also given the opportunity to make
their views known in writing and if
they so
requested were granted an opportunity to be heard
by the Commission. Written submissions were
made by certain interested parties, making known
their views on the findings.

With regard to the review investigation,
the
Commission, furthermore, sent questionnaires to
all parties known to be concerned and received
replies from two companies in Brazil, from two in
South Africa and from two in Ukraine. The
from an
Commission also received a
importer located in the United Kingdom, related
to one of the South African companies.

reply

(10)

Verification visits with respect to the review invest-
igation were carried out at the premises of the
following companies:

(cid:190) Ferroatl(cid:145)ntica S.A., Spain,
(cid:190) Hidro-Nitro S.A., Spain,
(cid:190) Fornileghe S.p.A., Italy,
(cid:190) Italghisa S.p.A., Italy,
(cid:190) Elettrosiderurgica Italiana S.p.A., Italy;

(b) producers/exporters in Brazil:

(cid:190) Companhia Paulista de Ferro-Ligas (herein-

after referred to as ‘CPFL'),

(cid:190) Sibra Electrosiderurgica Brasileira
(hereinafter referred to as ‘Sibra');

S.A.

(c) producers/exporters in South Africa:

(cid:190) Samancor Limited (hereinafter referred to as

‘Samancor'),

(cid:190) Highveld Steel and Vanadium Corporation
Limited (hereinafter referred to as ‘High-
veld');

(d) importer related to a South African producer/

exporter:

(cid:190) Samancor International Ltd, London (here-

inafter referred to as ‘SIL').

(11) All the parties concerned were informed of the
essential facts and considerations on the basis of
which it was intended to recommend definitive
measures in the review investigation. All parties
were granted a period within which representations
could be made. Their representations were taken
into consideration and, where appropriate,
the
findings have been changed accordingly.

3. New investigation

(12)

Following the imposition of the provisional anti-
dumping measures concerning imports from the
People’s Republic of China, certain interested
parties submitted comments in writing. Parties
who so requested were granted an opportunity to
be heard by the Commission.

(13) All the parties concerned were informed of the
essential facts and considerations on the basis of
which it was intended to recommend the imposi-
tion of definitive measures in the new investigation
concerning the People’s Republic of China. All
parties were granted a period within which rep-
resentations could be made. Their representations
were taken into consideration and, where appro-
priate, the findings have been changed accordingly.

(a) Community producers (also concerned in the

new investigation):

4. Investigation period

(cid:190) Sadaci S.A. Belgium,

(cid:190) Dunkerque
France,

Electrom(cid:130)tallurgie

(DEM),

(1) OJ L 252, 16. 9. 1997, p. 6.

(14)

For both investigations, dumping was examined for
the period from 1 January 1996 to 30 September
1996 (hereinafter referred to as ‘the investigation
period'). The examination of injury, and of the
likelihood of
injury, covered the
period from January 1993 to the end of 1996 with
the actual figures for the whole year 1996 being

recurrence of

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the
used. This was possible, exceptionally, as
investigation was initiated very close to the end of
1996 and led to a more accurate year to year
comparison,
instead of figures extrapolated from
the nine month investigation period. The detailed
calculations
for undercutting and underselling
were, however, based on data established for the
investigation period only.

(b) Extension of

the definition of

the product

under consideration

the scope of

(18) During the course of both investigations, EuroAl-
the product
liages requested that
under consideration be extended so as to include
goods falling under CN code ex 8111 00 11 (i.e.
‘unwrought manganese; powders'). EuroAlliages
considered that this product was alike to FeSiMn
imported under CN Code 7202 30 00.

B. PRODUCT UNDER CONSIDERATION AND

(19)

LIKE PRODUCT

1. Product under consideration

(15)

The product under consideration in both investiga-
tions is ferro-silico-manganese (hereinafter referred
to as ‘FeSiMn') falling within CN Code 7202 30 00.
FeSiMn is used in the steel industry for deoxidiza-
tion and as an alloy. It is mainly produced from
manganese ore and silicon which are mixed
together and brought to fusion temperatures in a
furnace.

(16)

(17)

FeSiMn exists in different qualities and is sold in
different grain or lump sizes. Despite these differ-
ences, all qualities and sizes have been considered
as a single product since they share the main phys-
ical and technical characteristics and main uses.

In the course of the investigations, it was estab-
lished that 90 % of consumption of FeSiMn in the
Community consists of so-called ‘standard quality
FeSiMn' which has a manganese content of 65 %
or more, a silicon content of 16 % or more (typ-
ically 17 %), a maximum carbon content of 2 %
(typically 1,8 %), a maximum phosphorus content
of 0,25 % and a maximum sulphur content of
0,04 %. The grain or lump dimensions of
the
standard quality product range from 10 mm to 200
mm. The remainder of Community consumption
consists of other (non-standard) qualities, including
(with a maximum carbon
‘low-carbon FeSiMn'
content of 0,10 %) and ‘fines' or ‘chips' which have
a grain size of less than 10 mm.

(a) Low-carbon FeSiMn

Following the imposition of provisional measures
in the new investigation, certain companies argued
that ‘low-carbon' FeSiMn should be excluded from
the scope of the measures. In this respect, it is
noted again that although certain slight differences
exist within the range of qualities which go to
make up the like product, all qualities can be
considered to be a single product since their main
physical and technical characteristics and uses are
the same.

In order to investigate this issue further, EuroAl-
liages was invited to furnish additional data as well
as to provide detailed information concerning the
interchangeability of
the two types of goods
concerned. In this regard, however, EuroAlliages
was not able to provide to the satisfaction of the
Commission sufficient substantiated evidence in
support of its request.

In consequence, the conclusion has been drawn
that an extension of the product definition is not
appropriate.

(20)

It follows from the above that the product under
consideration in the measures under review and in
the provisional Regulation, is the same.

2. Like product

(21) As in the original investigation, it was found that
or
FeSiMn produced and sold domestically
exported from Brazil and South Africa has the
same basic physical and technical characteristics
and uses as that produced in the Community and,
therefore, can be considered as a like product
within the meaning of Article 1(4) of the Basic
Regulation.

(22)

Similarly, FeSiMn exported by Russia, Ukraine and
the People’s Republic of China to the Community
was found to be sufficiently alike not only to that
produced by the Community industry but also to
that produced and sold for domestic consumption
the analogue country used for estab-
in Brazil,
lishing the normal value for such exports from
Ukraine and the People’s Republic of China.

C. DUMPING

1. Brazil

(a) Preliminary remark

(23) As in the original investigation, the two cooper-
ating Brazilian companies are related to one
another (CPFL being a subsidiary of Sibra) and
have therefore been regarded as forming one legal
and economic entity.

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(24)

(25)

(b) Dumping margin

It was established that the two cooperating com-
panies had made no exports of the product under
consideration to the Community during the invest-
igation period,
therefore it was not possible to
calculate a dumping margin for them.

into

from Brazil

been imported

Examination of Eurostat data showed that a rel-
atively small amount of 2 019 tonnes of FeSiMn
had
the
Community during the investigation period (out of
a total consumption in the Community of approxi-
mately 538 000 tonnes). One other producer of
FeSiMn is known to exist in Brazil, therefore, these
imports into the Community have been attributed
to this company. In order to establish a dumping
margin for the non-cooperating company,
is
necessary in accordance with Article 18 of them
Basic Regulation to use the facts available. In this
particular case, the most appropriate facts available
were considered to be the domestic sales of the
cooperating exporters in Brazil as the basis for
calculating normal value, and available Eurostat
import data as the basis for calculating the export
price. A comparison thus made between normal
value and export price showed no dumping.

it

2. Russia

(26) One company located in Russia, Promsyrioimport,
contacted the Commission after initiation of the
review investigation and stated that it had made no
exports of the product under consideration during
the investigation period (see recital 10). In addition,
examination of Eurostat data showed that only a
minimal quantity of 25 tonnes of FeSiMn were
imported from Russia into the Community during
the investigation period (out of a total consump-
tion in the Community of approximately 538 000
tonnes). In view of the negligible quantity of these
imports, it was neither considered necessary nor
they were at
appropriate to calculate whether
dumped price levels.

3. South Africa

(a) Normal value

(27)

The investigation established that one producer’s
domestic sales volume of FeSiMn significantly
exceeded the quantities of FeSiMn exported to the
Community
investigation period.
the
Accordingly, the requirement of Article 2(2) of the
Basic Regulation concerning the representativeness
of domestic sales when compared with export sales
was satisfied.

during

As concerns the prices of these sales, it was found
that a number of domestic transactions in the
investigation period were made at prices which
were below the weighted average unit cost of the
company during the same period. By volume, these
sales accounted for more than 20 % and less than
90 % of its total sales to independent customers.
In accordance with Article 2(4) of the Basic Regu-
lation, these loss-making sales were disregarded for
the purposes of calculating normal value, with
normal value established on the basis of
the
remaining, profitable sales.

(28) As concerns the other producer, the investigation
showed that this company had exclusively exported
non-standard quality FeSiMn to the Community
during the investigation period (FeSiMn ‘chips').
Domestic sales of the same quality FeSiMn chips
had also taken place during the investigation
period, but in quantities which were insufficient to
satisfy the requirement of Article 2(2) of the Basic
Regulation concerning the representativeness of
the quantity of domestic sales when compared to
the quantity exported. In accordance,
therefore,
with the provisions of Article 2(3) of the Basic
Regulation, cost of production plus a reasonable
amount for selling, general and administrative costs
and for profit was used as the basis for establishing
normal value.

(b) Export price

(29)

(30)

The investigation showed that one company’s
export sales of FeSiMn to the Community during
the review investigation period had been made
through a related importer based in the UK. In
view of this association, the company’s sales prices
of FeSiMn exported to its related importer in the
Community were considered unreliable for the
purpose of establishing the export price in this
investigation. In accordance,
therefore, with the
provisions of Article 2(9) of the Basic Regulation,
the export price of this company was constructed
on the basis of the weighted average sales prices of
this related importer to the first independent buyer
in the Community.

In accordance with Article 2(9) of the Basic Regu-
lation, adjustments made included transport, insur-
ance, handling, loading and ancillary costs and a
reasonable margin for all
selling, general and
administrative expenses (hereinafter referred to as
‘SGA') and profits. As concerns the adjustment for
profits, a profit margin for the related importer of
3 % was considered to be reasonable. This margin
was also used in the original investigation for the
purpose of calculating the company’s export price.

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(31) As concerns the other company, the export price
of
this company was established in accordance
with Article 2(8) of the Basic Regulation, i.e. on the
basis of the prices paid or payable.

(c) Comparison

Regulation, in conjunction with Council Regula-
tion (EC) No 519/94 (1), requires the Community
institutions to consider Ukraine as a non-market
anti-
economy country in the framework of
con-
and,
in general
dumping proceedings
sequently, also for the purposes of
the present
investigation.

(32)

(33)

For the purpose of ensuring a fair comparison
between normal value and export price, due allow-
ance in the form of adjustments was made in
accordance with Article 2(10) of the Basic Regula-
tion where it was claimed and demonstrated that
differences affected price comparability. In this
transport,
regard,
packing and credits costs.

adjustments were made

for

In accordance with the provisions of Article 2(11)
of the Basic Regulation, the normal value of each
company was compared to the export price of each
company on a weighted average to weighted
average basis, at ex-works level and at the same
level of trade.

(d) Dumping margins

(34)

The dumping margins thus established, expressed
as a percentage of the CIF Community frontier
price, were as follows:

(cid:190) Samancor Limited: 0,0 %,

(cid:190) Highveld Steel and Vanadium Corporation

Limited: 0,0 %.

(35) As there are no other known producers of FeSiMn
in South Africa and in view of the findings with
regard to likelihood of recurrence of
injury by
South Africa (see Recital 109), it was not consid-
ered necessary to calculate a residual dumping
margin.

4. Ukraine

At the outset, it should be pointed out that two
Ukrainian exporting producers, namely Nikopol
Ferroalloy plant (hereinafter referred to as ‘Niko-
pol') and Zaporozhye Ferro Alloys Plant (herein-
after referred to as ‘Zaporozhye') responded to the
questionnaire. However, the latter company stated
that it had not exported the product under consid-
eration to the Community during the investigation
period.

(a) Analogue country

(36)

The Ukrainian authorities submitted that Ukraine
should be treated as a market economy country for
the purpose of the present review investigation. In
this respect, it is noted that Article 2(7) of the Basic

the

to compare

(37) Accordingly, in order to calculate dumping, it is
export prices of
necessary
Ukrainian producers/exporters with the prices or
costs in a third country with a market economy
(the ‘analogue country'). To this end, the notice
initiating the interim review envisaged the use of
Brazil or the USA as an appropriate analogue
country. In this regard, it should be recalled that
Brazil also served as the analogue country for
Ukraine in the original investigation.

(38) However, as it was not certain that cooperation
would be forthcoming from Brazil or the USA (and
in order not to delay the investigation in the event
in Norway and
of non-cooperation), producers
India were also contacted with a view to seeking
their cooperation in establishing the normal value
for Ukraine. With the exception, however, of the
two cooperating producers in Brazil,
it was not
possible to obtain sufficient cooperation in any of
the other countries.

(39)

In considering whether it would be appropriate
and not unreasonable to use Brazil as the analogue
country in the present review investigation,
the
following elements were taken into account:

(cid:190) Brazil is a large-size market economy country
with production and sale of FeSiMn governed
by market forces,

(cid:190) FeSiMn was imported into Brazil in not insig-
nificant quantities during the investigation
is an open
period,
market,

indicating that

thus

it

(cid:190) considerable quantities produced in Brazil were
found to have been sold domestically during
the investigation period, not only by the two
cooperating companies but also by another
Brazilian producer, which also indicates that it
is a competitive market,

(cid:190) the quantities sold domestically by the cooper-
in the investigation period
ating producers
were sufficient to be considered representative
within the meaning of Article 2(2) of the Basic
Regulation when compared to the quantities
exported to the Community by Ukraine,

(cid:190) the products produced in Brazil and Ukraine
have similar physical and technical characteris-
tics and applications,

(cid:190) the conditions of access to raw materials in the
two countries are considered to be comparable.

(1) OJ L 67, 10. 3. 1994, p. 89.

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3. 3. 98

(40)

In view of the foregoing, Brazil was selected as the
analogue country. Both cooperating Ukrainian
companies agreed to the selection of Brazil as an
appropriate analogue country and no objections to
this choice were raised by any of the other inter-
ested parties in the review investigation.

sion of its sales to the Community in accordance
with the terms of its undertaking. These reports
confirmed that, during the investigation period, it
had not exported the product under investigation
to the Community.

(b) Individual treatment

(41) Nikopol

and the Ukrainian authorities both
submitted that individual treatment was warranted
in this particular case and that a separate dumping
margin should be established for this company.
The investigation therefore sought
to establish
whether Nikopol enjoyed a degree of legal and
independence from the Ukrainian State
factual
in a
comparable to that which would prevail
market economy country and, to this end, detailed
questions
ownership, management,
control and determination of commercial and busi-
ness policies were addressed to the company.

regarding

(42) On the basis of

the information supplied,

the
company was unable to demonstrate to the satis-
faction of the Commission that it was sufficiently
interference
from State control or
independent
and, accordingly, the claim for individual treatment
was rejected.

(c) Normal value

(43) Normal value for Ukraine was consequently deter-
the prices of domestic
mined on the basis of
Brazilian sales made in the ordinary course of
trade.

(d) Export price

(44)

Examination of
the data provided by Nikopol
showed that the company’s export volume to the
Community only accounted for approximately
60 % of all
imports into the Community from
Ukraine during the investigation period (based on
Eurostat). As concerns
the remaining 40% of
imports (hereinafter referred to as the ‘residual
imports'),
the other
it should be recalled that
Ukrainian producer of FeSiMn, Zaporozhye, had
stated that it had made no exports of the product
under consideration to the Community in the
investigation period.

(45)

Examination of the detailed export data furnished
by Nikopol showed that the company had appar-
ently observed the undertaking offered in the orig-
inal
investigation. The other company, Zapor-
ozhye, had made regular reports to the Commis-

(46) Given the apparent observance of the undertakings
by the two Ukrainian producers, it was concluded
that companies which did not make themselves
known during the review investigation, situated
inside or outside Ukraine, may have traded FeSiMn
of Ukrainian origin and exported it
to the
Community.

(47)

(48)

(49)

In order to determine the export price for FeSiMn
originating in Ukraine, on the one hand, the data
presented by Nikopol were used and, on the other
hand, as far as the significant volume of exports to
the Community of FeSiMn of Ukrainian origin
made by non-cooperating companies is concerned,
the export price had to be established on the basis
of the facts available, the most reasonable of which
were considered to be those reported in Eurostat.

(e) Comparison

For the purpose of ensuring a fair comparison
between normal value and export price, due allow-
ance in the form of adjustments was also made in
accordance with Article 2(10) of the Basic Regula-
tion where it was claimed and demonstrated that
differences affected price comparability. In this
regard, adjustments were made, where appropriate,
for transport, insurance and credit costs and for
differences in physical characteristics.

The adjustment necessary to establish the normal
value on the basis of ‘fob port, Brazilian frontier
level' was calculated by using averages of
the
freight/handling costs between the production
plants and the Brazilian ports in respect of their
normal export sales.

(50) As the delivery terms for Nikopol’s exports were
DAF Community frontier, adjustments for freight/
handling were made to the reported sales prices to
bring them back to ex-Ukrainian frontier level.
Since the export price for the residual imports was
based on the cif Community frontier price as
reported by Eurostat, an adjustment for freight/
handling was made to bring them also back to
ex-Ukrainian frontier level. The amount of this
adjustment was determined,
in accordance with
Article 18 of the Basic Regulation, on the basis of
data provided by Nikopol.

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(51) As in the original

investigation with regard to
Nikopol, an additional adjustment was made to
take account of differences in physical characteris-
tics between the Brazilian product
and the
Ukrainian product due to the Ukrainian product’s
higher phosphorous
adjustment
in accordance with the original
covered also,
investigation,
and
for
an amount
screening costs incurred in the analogue country,
but not in Ukraine.

content. This

crushing

(52)

In accordance with the provisions of Article 2(11)
of the Basic Regulation, the normal value estab-
lished in the analogue country was compared to
the export price on a weighted average to weighted
average basis.

(f) Dumping margin

(53) On a country-wide basis, the dumping margin thus
established for Ukraine, expressed as a percentage
is
of
10,4 %.

free-at-Community frontier,

the cif price,

5. The People’s Republic of China

(a) Individual treatment

(54)

Following imposition of the provisional measures,
one Hong Kong based trader, Glory Profit Devel-
opment Limited (hereinafter referred to as ‘Glory
Profit') claimed that it and/or its related producers
in the People’s Republic of China should be
granted individual treatment. This claim could not
be accepted as neither Glory Profit nor its related
producers applied for individual treatment within
the deadlines
specified in the questionnaires.
Moreover, individual treatment cannot be granted
to a trader which can purchase the product under
investigation from any producer in the country
concerned (see recital 18 of the provisional regula-
tion). Also,
the Chinese producers of FeSiMn
related to Glory Profit do not qualify for individual
treatment as they did not cooperate with the
investigation.

(b) Arguments concerning analogue country and

normal value

for

(55) As laid down in the provisional Regulation, Brazil
was considered to be the most appropriate market
economy analogue country for establishing normal
value
of China.
the People’s Republic
Following the imposition of the provisional meas-
ures, however, a cooperating importer questioned
the use of Brazil as the analogue country, arguing
that the two cooperating producers of FeSiMn in
Brazil used for establishing normal value are

owned by a Brazilian mining company which at
the same time holds shares in a European FeSiMn
producer. It was submitted that the calculation of
the Brazilian normal value would be affected by
transfer prices for manganese ore
the internal
between the producers of FeSiMn and a share-
holder.

(56)

in detail

the various reasons why Brazil

It is considered, however, that such a situation does
not contradict, and therefore affect, the findings in
Recital 22 of the provisional Regulation, which sets
out
is
considered to be an appropriate analogue country
for the People’s Republic of China. In addition, it
should be recalled that the normal value estab-
lished in Brazil was based on domestic sales prices
in Brazil, achieved in the normal course of trade.
Also, no evidence was found during the invest-
igation that
aforementioned shareholding
would have affected prices or costs of the cooper-
ating Brazilian producers because the sales were
made on an arm’s length basis.

the

It is therefore considered that the choice of Brazil
as the analogue country for the People’s Republic
of China and the method for calculating normal
value are appropriate, and are confirmed for the
purpose of the definitive measures.

(c) Export price

(57) No new comments, evidence or arguments were
received on this issue, therefore the findings set
in the provisional Regulation concerning
out
export price are confirmed.

(d) Comparison

(58)

(59)

It should be recalled that, for the provisional Regu-
lation, a comparison of the export price with the
normal value was carried out at the same delivery
terms (i.e. the export price established at ‘fob port,
Chinese frontier'
level was compared to normal
value established at ‘fob port, Brazilian frontier'
level). Following the imposition of the provisional
the cooperating Chinese producers
Regulation,
questioned the adjustments made to bring the
Chinese export prices to an fob port, Chinese fron-
tier basis.

In this respect, it should be noted that in order to
establish the fob port, Chinese frontier prices, not
only the prices and sales conditions reported by
the cooperating parties were taken into account,
but also the prices established on the basis of the
facts available for the non-cooperating producers/
exporters.

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non-discriminatory

between
and
normal value and export price since it avoids reli-
ance on, (or estimation of), cost data in non-market
economy countries.

comparison

Accordingly, the methodology used for comparison
purposes
is
confirmed.

provisional Regulation

the

in

(e) Dumping margin

(64)

In view of the foregoing, the dumping margin for
the People’s Republic of China was calculated to
have decreased from the provisional
level of
26,1 % to a definitive margin of 25,7 %.

D. DEFINITION OF THE COMMUNITY INDUS-

TRY

(65)

The six Community producers supporting the new
complaint and cooperating in the review invest-
igation were identical (see recital 9). In addition to
these producers, two other producers were known
to produce FeSiMn in the Community. One of
them also supported the complaint and fully coop-
erated in the investigation.

The abovementioned seven cooperating producers
account for almost all of the Community produc-
tion of FeSiMn. Consequently, in accordance with
Article 4(1) of
the Basic Regulation the invest-
injury has focused on the economic
igation of
situation of
these seven producers, which are
referred to as the ‘Community industry' herein-
after.

(60)

Since some of the transactions made by the coop-
erating parties were on a cif Community frontier
price level, adjustments were made, where appro-
priate, for transport and insurance costs. In addi-
tion, it was noted that some of the transactions
reported by the cooperatirtg parties were made via
traders located in third countries. The functions
performed by these traders were considered to be
similar to those of a trader acting on commission
basis, therefore, it was considered appropriate to
make an adjustment to these transactions to take
account of
the traders’ SGA and a reasonable
amount for profits, in order to arrive at a fob port,
Chinese frontier price.

(61) Adjustments were also made to the transactions
attributed to the non-cooperating companies. As
set out in the provisional Regulation, the export
price for non-cooperating companies was estab-
lished on the basis of the facts available. In this
respect, it was considered appropriate to calculate
the export price on a representative set of
the
lowest import transactions found for the biggest
cooperating traders (see recital 26 of the provi-
sional Regulation). Since the import transactions
it was
related to Community frontier prices,
considered appropriate to make an adjustment for
transport and insurance costs as well as for the
commission covering traders’ SGA expenses and a
reasonable amount for profits.

from the

cooperating
Following observations
Chinese exporters, the question of the adjustment
for commissions has been reviewed, since it was
established that only a certain proportion of the
Chinese transactions reported by the cooperating
companies were made via traders in third coun-
tries. This led to a proportional correction of the
adjustment, which in turn led to a slightly higher
fob port, Chinese frontier export price.

(62)

(63)

The cooperating Chinese companies also ques-
tioned the established practice of the Community
Institutions of comparing the normal value with
the export price at a fob national frontier level in
anti-dumping investigations involving non-market
economy countries. These companies did not,
however, propose an alternative level or method of
comparison.

(66)

Notwithstanding the comments of these parties, it
is considered that
is
normally the best method for ensuring a reliable

frontier level

fob national

E. INJURY

1. Preliminary remark

It should be recalled that it was the conclusion of
the Commission in the provisional Regulation that
imports of FeSiMn originating in the People’s
Republic of China had caused material injury to
the Community industry, when taken in isolation.
In order to reflect the fact that this Regulation sets
out the conclusions reached in the new and in the
review investigations, the findings set out in the
provisional Regulation applicable also to the review
these
investigation are again set out below. All
findings are confirmed for the purpose of
the
definitive determination since
they were not
disputed by any of the parties.

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(67)

(68)

(69)

(70)

2. Consumption in the Community

the

total

The
consumption of FeSiMn in the
Community was established on the basis of the
total imports into the Community (Eurostat import
statistics, plus
sales made by the
total
Community industry on the Community market.
No reliable information was obtained from the one
Community producer which did not support the
complaint. However, according to available infor-
mation, its sales on the Community market were
negligible when compared with available data
regarding total Community consumption and were
therefore disregarded in the assessment of injury.

Between 1993 and 1996 Community consumption
of the product by weight concerned increased by
32 887 tonnes, or 7 %. During the same period,
the consumption by value increased by 25 %. The
difference between the two above trends may be
explained by the fact that one type of FeSiMn, with
a low carbon content, commands a higher price
than standard types and was exported in increasing
quantities to the Community market during the
period under consideration, notably by Norway.

As far as imports originating in Brazil, Russia and
South Africa are concerned, a cumulative analysis
of these imports together with those originating in
the Ukraine and the People’s Republic of China
the
appeared unnecessary in the framework of
present injury investigation in view of the findings
on dumping set out above.

(b) Volume, value and market share of imports

from the People’s Republic of China

(71) Dumped imports, by volume, originating in the
People’s Republic of China increased from around
12 000 tonnes in 1993 to 75 400 tonnes in 1996,
an increase of 526 %. During the same period, the
value of these imports increased from around ECU
5,6 million to ECU 33,5 million (cid:190) an increase of
502 %.

the market penetration of

In terms of market shares based on total consump-
the dumped
tion,
Chinese imports in volume rose almost six-fold
from 1993 to 1996, from 2,4 % in 1993 to 14 % in
1996 (cid:190) an increase of 488 %.

3. Imports of FeSiMn in the Community

(c) Prices of dumped imports

(a) Appropriateness of cumulation

In the original
investigation the Commission
concluded that, for the purpose of injury analysis,
the dumped imports from Brazil,
the effect of
South Africa, Russia
and Ukraine should be
assessed cumulatively. It was considered that the
product under consideration was imported from
each exporting country in substantial quantities,
held a significant market share and competed both
with each other and with the FeSiMn manufac-
tured by the Community industry.

Imports originating in the People’s Republic of
China and Ukraine were, throughout the period
under examination, made in significant quantities.
Exports from Ukraine even increased in 1996
when compared to export levels in 1995. However,
the question as to whether or not imports from the
People’s Republic of China and Ukraine should be
cumulated can be left undecided since, as shown
below, the Chinese imports have, when assessed in
isolation, caused material injury to the Community
industry while there is a strong likelihood of a
recurrence of injury with regard to imports from
the Ukraine should measures on these imports be
repealed.

(72) As mentioned above, for the determination of price
undercutting with regard to the People’s Republic
of China, the data analysed referred to the invest-
igation period. For this purpose, comparison was
made between the weighted average sales prices of
the exporting country concerned and the weighted
average sales prices of the Community industry
producing FeSiMn.

from the

In the provisional Regulation the determination of
price undercutting was made at end-user level.
Following observations
cooperating
importers and producers/exporters, the calculation
concerning undercutting was reviewed, since it was
established that the majority of Chinese imports
transactions were made with traders
in the
Community. Taking into account the fact that a
significant part of the Community industry’s sales
was at the same level of trade, it was these transac-
tions which were used for price comparison.

(73) On that basis, and by applying the methodology
already used at the provisional measures stage, the
comparison showed a weighted average price
undercutting margin concerning the People’s
Republic of China, expressed as a percentage of
the sales price, of 6,5 %. This margin is significant
considering the price suppression suffered over
several years by the Community industry (see
recital 54 of the provisional Regulation).

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3. 3. 98

4. Situation of the Community industry

(74)

In order to fully assess the evolution of various
injury indicators, the following should be taken
into consideration as far as the period from 1994
onwards is concerned:

(cid:190) the Community industry was confronted with a
growing steel demand which had to be met in
terms of production,

(79)

(cid:190) the anti-dumping measures presently in force
in respect of Ukraine, Russia, Brazil and South
Africa are, depending on the producer/exporter
concerned, in the form of price undertakings or
variable duties based on minimum prices. The
particular impact of
these type of measures
should be borne in mind when analysing
certain injury factors for the time period after
1994.

(a) Production, capacity and capacity utilisation

(75) Overall Community production of FeSiMn rose
from around 189 600 tonnes in 1993 to 249 100
tonnes in 1996, representing an increase of 31 %.
During the period under investigation, the produc-
tion capacity of
the Community industry was
stable. On the basis of an estimate of the capacity
normally attributed by the Community producers
to the production of FeSiMn,
installed capacity
remained unchanged between 1993 and 1996.
Therefore the capacity utilisation rate rose from 48
to 64 %, which is in line with the increase in
production. Nevertheless, even with this increase
the rate of capacity utilisation remains at a very
low level.

(b) Stocks

(76)

Stocks significantly increased from around 29 400
tonnes in 1993 to 55 300 tonnes in 1996, an
increase of 88 % (see Recital 46 of the provisional
Regulation).

(c) Sales

from this positive market situation. Profitability,
however, still remains in a negative situation (see
recital 55 of the provisional Regulation and recital
81 of this Regulation).

(d) Market share

share by volume increased from
The market
32,5 % in 1992 to 37 % in 1996, an increase of
14 %. This
increase occurred in the period
between 1995 and 1996, namely after the imposi-
tion of measures against
imports originating in
Russia, Ukraine, Brazil and South Africa. It has,
however, to be noted that this increase has not
allowed the Community industry to regain the
position it had before injurious dumping from the
four countries.

(80) An analysis of market share by value was also
conducted. The patterns observed were similar to
that of the market share by volume in that the
Community industry gained market share, from
32,6 % to 36,1 %, an increase of 11 %. It should
be borne in mind that between 1995 and 1996 the
market share of the Community industry, by value,
decreased by 2 %.

(e) Average sales price and price evolution

(81)

The average sales price of FeSiMn sold by the
Community industry between 1993 and 1994, the
year of the imposition of the anti-dumping meas-
ures against imports originating in Russia, Ukraine,
increased by 12 %.
and South Africa,
Brazil
the prices rose by a
Between 1994 and 1995,
further 2 % and remained at
the same level
between 1995 and 1996.

The investigation has shown that the downward
pressure on prices exerted by the dumped imports
has prevented the Community industry from
aligning its sales prices to its relative costs. Despite
an increase of 14 % over the period under consid-
eration,
these prices were therefore significantly
suppressed.

(77)

The volume of sales realised by the Community
industry in the Community market increased from
around 164 500 tonnes in 1993 to 199 300 tonnes
in 1996, an increase of 21 %.

(82)

Sales in value by the Community industry rose
from around ECU 70,5 million in 1993 to ECU
97,4 million in 1996, an increase of 38 %.

(78)

The increase in sales volume and value has to be
seen in the light of the fact that consumption and
sales prices have
increased. The Community
therefore, derived some advantage
industry has,

(f) Profitability

of

average

profitability

The weighted
the
Community industry, expressed as a percentage of
sales, showed a loss of 27 % in 1993, which
became a loss of 9 % in 1994. The relative
improvement
the
Community industry continued into 1995, when
losses amounted to 3 %. The profitability of the
Community industry deteriorated again in 1996
when losses increased (to – 7 %), despite higher
sales prices and increased volume.

in the financial

situation of

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(g) Employment

imports originating in the People’s Republic of
China had caused material injury.

(83)

Between 1993 and 1996, employment
Community industry decreased by 11 %.

in the

5. Final conclusion on injury

(89)

situation of

the
improved

(84) As already stated in recital 57 of the provisional
the Community
Regulation,
industry
1995.
to
However, this positive development has to be seen
in conjunction with the effect of
the measures
imposed on imports from Brazil, South Africa,
Russia and Ukraine.

between 1993

this

regard, Chinese

In
producers/exporters
claimed that Chinese imports had not caused
material injury to the Community industry. They
also argued that in 1993, Chinese import prices
were above the prices of Brazil, Russia, South
Africa and Ukraine. Furthermore, they argued that,
in an effort
in the
to gain market
Community market,
they had to decrease their
prices in order to follow the other four exporting
countries. In their view, Chinese imports did not
dictate the price evolution in the Community
market.

share

sales,

concerned,

production

(85) As far as the situation of the Community industry
prices
is
increased, additional market share was gained and
profitability recovered from very severe losses
(– 27 %) in 1993 to (– 3 %) in 1995. From 1995
to 1996, however, the situation of the Community
industry deteriorated again (profitability – 7 %).

and

(86)

In view of the above findings, it is concluded for
the purpose of the definitive measures that the
Community industry has suffered material injury
within the meaning of Articles 3 and 11 of the
Basic Regulation.

F. CAUSATION

1. Effect of Chinese imports

(87) Although

in

consumption

the Community
increased by 7 % between 1993 and 1996,
the
rising level of imports from the People’s Republic
share
of China, meant
increased from 2,4 % in 1993 to 14 % in 1996, i.e.
by 11,6 percentage points, with a peak of 21,5 %
in 1995.

total market

that

its

In contrast, the Community industry increased its
market share from 32,5 % in 1992, to 37 % in
1996, i.e. by 4,5 percentage points. This increase
occurred between 1995 and 1996, that is after the
imposition of measures against imports originating
in Russia, Ukraine, Brazil and South Africa and
did,
the
Community industry had held before injurious
dumping started (see recital 50 of the provisional
Regulation).

in any event, not

the level

reflect

The Commission re-examined its findings and
established that
the Chinese dumped imports
increased between 1993 and 1994 by 260 %,
following the initiation of the initial investigation
and
concerning Brazil, Russia,
Ukraine. In 1994, due to the uncertainty of the
outcome of
it
seems that Chinese exporters took advantage of the
fact that some users had started to look for new,
cheap sources of FeSiMn.

the anti-dumping investigation,

South Africa

It was established that already in 1994, Chinese
import prices were below the average prices of
FeSiMn originating in South Africa and Brazil. It
should be recalled that
the initial provisional
Regulation was adopted in December 1994 and
that the effects of those measures were expected to
produce results in 1995. In 1996 Chinese import
prices were below the prices of the four countries
and caused the Community industry’s sales prices
to remain depressed.

(90)

The expected recovery of the Community industry
was thus heavily hampered by the combination of
a slight increase in volume and the low-dumped
prices of Chinese imports in 1994, and a signi-
ficant increase in volume of these imports in 1995
and 1996. The market share of Chinese imports
increased from 2,4 % 1993, to 7,9 % in 1994 and
21,5 % in 1995. In 1996 Chinese imports lost 7 %
of their market share for the reasons explained at
recital 72 of the provisional Regulation.

For the reasons mentioned above, these arguments
have to be rejected.

(88)

In addition,
significant price undercutting was
found for the People’s Republic of China, while
prices of Ukrainian imports reflected exactly the
undertaking prices. It should be recalled that the
Commission, at recital 75 of the provisional Regu-
lation, reached the preliminary determination that

(91)

Therefore, it is concluded that imports from China
had a negative impact on the situation of
the
Community industry, which must be considered as
material.

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2. Effect of other factors

Norway

(92) Chinese producers/exporters also argued that the
injury caused to the Community industry resulted
from imports of FeSiMn of Norwegian origin and
not from imports from the Peopfe’s Republic of
China.

It should be noted in this context that, with regard
to imports of FeSiMn from Norway,
its market
share decreased from 34,4 % in 1993 to 29,1 % in
1996 and that the average import prices on the
Community market
for FeSiMn of Norwegian
origin (according to Eurostat), in the calendar years
1993-1996, were always higher than the Chinese
the Community industry and all other
prices,
exporting countries (see Recitals 69 and 70 of the
provisional Regulation).

it

is considered that
In these circumstances,
imports from Norway were unlikely to have been
responsible
the
Community industry, and, accordingly, these argu-
ments and claims have to be rejected.

suffered by

injury

the

for

3. Conclusion

(93) As no other arguments concerning causation of the
injury sustained by the Community industry were
submitted after the imposition of the provisional
anti-dumping measures and in the light of the
above considerations, it is hereby concluded that,
even if other factors might have contributed to the
injury suffered by the Community industry, the
dumped imports of FeSiMn originating in the
People’s Republic of China have, taken in isola-
tion, caused material
injury to the Community
industry. This conclusion in particular also takes
into account
the
imports originating in the countries covered by the
review investigations as set out in recital 68 of the
provisional Regulation.

the analysis of

the impact of

G. LIKELIHOOD

OF
DUMPING AND INJURY (WITH REGARD
TO THE COUNTRIES SUBJECT TO THE
INTERIM REVIEW)

RECURRENCE

OF

1. Preliminary remark

(94) As a preliminary remark, it should be pointed out
that the definitive measures imposed previously by
Regulation (EC) No 2413/95 should normally have
eliminated the effects of injurious dumping to the
Community industry. With regard to imports
originating in Ukraine, irrespective of whether or

not injury resulting from these imports has actually
been established, a reasoned forecast must also be
made as to what would happen if the measures
currently in force against this country were to be
removed or varied. The same applies with regard to
imports from Brazil, South Africa and Russia for
which no dumping has been found.

2. Brazil

(95) Analysis of the data provided showed that the two

cooperating exporters:

(cid:190) during the investigation period had very high
capacity utilisation levels for FeSiMn produc-
limited excess capacity),
tion (and,

therefore,

(cid:190) had increased their domestic sales volumes (by
11 % between 1995 and the investigation
period),

(cid:190) had

increased

significantly

export
volumes to markets other than the Community
(an increase of over 40 % was observed
between 1995 and the investigation period).

their

(96) On the basis of the above, it is clear from the
findings in the present investigation that, following
the imposition of anti-dumping measures by the
Community after the original investigation, both
Brazilian companies have established themselves
on non-Community markets where their product
commands higher prices than those prevailing for
FeSiMn in the Community. It was also found that
the selling prices of such non-Community exports
than the prevailing unit cost of
were higher
production for these producers during the invest-
igation period.

EuroAlliages questioned, however, the amount of
spare capacity available and argued that the produ-
cers would switch from producing silicon metal to
FeSiMn in the absence of measures. It should be
recalled that the assessment made by the Commis-
sion was based on actual data verified at the prem-
ises of the companies, in respect of production of
FeSiMn. Although it is always theoretically possible
that a company will shift production from one
product to another, no evidence was submitted and
no indications were found in this particular case
that Brazilian producers are likely to abandon their
silicon-metal customers in order to increase their
Community market share of the product under
consideration, especially when account is taken of
the prices achieved in other markets for FeSiMn.
The argument by EuroAlliages could not, therefore,
be accepted.

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Official Journal of the European Communities

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(97) Account was also taken of

the fact

that anti-
dumping duties of 64,93 % had been imposed by
the United States of America in December 1994
on imports of FeSiMn from the two cooperating
Brazilian companies. Following a review of these
measures,
the
dumping duties to 80,54 % in January 1997. In
view of these high duty rates, it was also deemed
necessary to consider whether any deflection to the
Community of FeSiMn previously exported to the
USA would occur if the present measures imposed
by the Community were to be removed or varied.

authorities

increased

the US

(102)

It should be recalled that only a small quantity of
FeSiMn was exported to the Community, by the
non-cooperating Brazilian producers,
at non-
dumped price levels to the Community during the
investigation period (and which accounted for
0,4 % of total consumption in the Community).

Accordingly, in these particular circumstances and,
given the behaviour of
is
concluded that there is little likelihood of recur-
rence of injurious dumping if the residual anti-
dumping measures currently in force against Brazil
were also to be removed.

these companies,

it

In this regard,
it should be noted that the US
measures were initially imposed during the same
month as the Community imposed provisional
measures, namely December 1994. Given that the
dumping duty rate imposed by the USA was
almost double that imposed by the Community, it
might have been expected that a certain amount of
FeSiMn formerly sold to the USA would have been
diverted to the Community already at this stage.
The investigation has however shown that this did
not happen.

3. Russia

(103)

In order to evaluate whether injurious dumping
would be likely to recur if the measure currently in
force against Russia were to be removed, reference
must be made to the pattern of trade between
Russia and the Community in the investigation
period and the period leading up to it.

In this regard, it should be recalled that only 25
tonnes of Russian FeSiMn was imported into the
Community in the investigation period, which
meant that its share of the Community market was
insignificant.

(98)

(99)

Instead,
following
the investigation showed that
the imposition of measures in the Community, the
cooperating companies made no exports at all to
the Community. Moreover, they made no export
sales to the USA in 1994 and 1996, and only a
minor amount
the high
capacity utilization rate and the increased and pro-
fitable sales in Brazil and various third countries, it
is not unreasonable to conclude that
the anti-
dumping duties imposed by the USA against the
two cooperating producers do not pose a signi-
ficant threat to the Community in terms of risk of
deflection of trade.

In view of

in 1995.

(100) Accordingly, it has been concluded that there is no
likelihood of
injurious dumping
recurrence of
within the meaning of Article 11(3) of the Basic
Regulation by the
two cooperating Brazilian
imposed by the
companies
Community in the original investigation were to
be removed.

the measures

if

(101) As concerns the amount of capacity available in
the non-cooperating Brazilian company or com-
significant
panies, EuroAlliages
quantities of FeSiMn would be exported to the
Community, in the event of removal of the meas-
ures, by these companies.

submitted that

other

concerning

information

trends which would indicate

(104) On the basis of these data and in the absence of
possible
any
economic
the
contrary, it is concluded that there is no likelihood
of recurrence of injurious dumping by exports of
Russian origin if the measure currently in force
were to be removed in the meaning of Article 11
(3) of the Basic Regulation.

4. South Africa

(105)

(106)

It should first be recalled that both South African
producers were found not to be dumping during
the investigation period. An analysis of each
company’s pattern of production and trade has
been made, together with an overall assessment of
whether South African FeSiMn would be likely to
enter the Community again in significant quant-
ities at dumped and injurious price levels.

It should be noted that, traditionally, around 80 %
of the total South African production of FeSiMn is
exported. As far as domestic sales are concerned,
the analysis showed that
the sales volumes of
FeSiMn of both producers declined by 18 %
investigation period.
between 1993 and the
However, during the investigation period, domestic
sales volumes
It was also
showed a recovery.
from the data presented that between
apparent

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Official Journal of the European Communities

3. 3. 98

1993 and the investigation period that the volume
of the two companies’ exports of FeSiMn to the
Community declined progressively each year to
such a low level that their market share became
insignificant (i.e. from 3 % in 1993 to 0,4 % in the
investigation period).

it

average

(107) At the same time, an increase of 11,3 % in the
volume of South African FeSiMn exports to other
(non-Community) markets occurred between 1993
and the investigation period. Accordingly,
is
concluded that the declining volumes of FeSiMn
previously sold on the South African domestic
market and to the Community have been replaced
by increased sales to other markets. As concerns
selling prices, it was established that both com-
panies’
sales prices on all markets
increased overall between 1993 and the invest-
the average sales prices
igation period. Whilst
showed a modest overall
improvement on the
South African domestic market, more significant
price increases were observed for sales to the
Community and other export markets. In some
cases, the average price increase was over 50 %
between 1993 and the investigation period. With
regard to the investigation period only, it was also
exported to non-
noted that
Community markets at average price levels which
were both profitable and higher than the sales
price achieved for their FeSiMn exports to the
Community.

the companies

(108)

It was also found that
the companies’ capacity
utilisation in the investigation period would leave
only a relatively limited amount of spare capacity
available for production of
(potential) additional
FeSiMn for sales to the Community.

In this regard, on the basis of a trade publication,
EuroAlliages questioned the finding that
the
amount of spare capacity available to the two South
African producers was relatively limited. It should,
however, be noted that the capacity data provided
was verified by the Commission and that
the
assessment made thereon was based on actual data
for the investigation period.

(109) Taking into account

all

the

abovementioned
factors,
it is considered unlikely that significant
quantities of FeSiMn will be exported to the
Community by these two South African companies
at dumped and injurious price levels should the
measures be removed. It is therefore concluded
that there is no likelihood of recurrence of the
injurious dumping by the two sole South African
exporters if the measures imposed in the original
investigation by the Community were to be
removed.

5. Ukraine

(110) At the outset, it should be recalled that FeSiMn
imports into the Community from Ukraine during
the investigation period accounted for approx-
imately
consumption in the
Community, a not insignificant market share. In
addition, Ukrainian imports were made at dumped,
although not
injurious price levels, during the
period when the anti-dumping measures were in
force.

4 % of

total

spare

(111) Examination of the replies of the two cooperating
Ukrainian companies to the Commission’s ques-
tionnaire shows that together they have an annual
production capacity of over 1 300 000 tonnes for
FeSiMn and, at present production levels, an enor-
capacity for FeSiMn production.
mous
Indeed, the data provided show that whilst
the
Ukrainian installed capacities remained relatively
stable between 1993 and the investigation period,
actual production declined from over 700 000
tonnes in 1993 to around 557 000 tonnes during
the investigation period. Overall capacity utilisa-
tion in the Ukrairie is therefore at a very low level
and, in the investigation period, stood at around
42 %.

(112) As concerns sales volumes, examination of the data
provided by the two exporters shows that their
domestic sales volumes declined by over 37 %
between 1993 and the investigation period. Export
sales volumes to the Community fell by nearly
60 % over the same period and sales to non-
Community markets decreased by just over 17 %.
The overall decline in sales on all markets
(domestic and export) was approximately 23 %.

that

(113) Given this situation, there is an apparent need for
the Ukrainian producers to bring their capacity
utilisation back to former levels by considerably
increasing their production and, consequently,
their sales volumes. Given the slump in demand
on their domestic market in recent years it would
appear that the main avenue open to them is to
is
further develop their export sales. Whilst
possible
the Ukrainian exporters might
increase their exports to other, non-Community
markets (as was found to be the case with the
is
Brazilian and South African producers),
considered more likely that
they would try to
regain lost market share in the Community if there
were no longer any anti-dumping measures in
force against them. This conclusion is corroborated
by both the geographic proximity of the Ukraine
to the Community market and by the fact that the
Community has been a traditional customer for
Ukrainian FeSiMn.

it

it

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Official Journal of the European Communities

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(114)

In view of all the above factors, it is concluded that
there is a strong likelihood that injurious dumping
would recur,
the measures currently in force
were to be removed.

if

H. COMMUNITY INTEREST

1. Introduction

the examination of

the Community market

(115) As the new anti-dumping investigation and the
same
review investigation both concern the
market, namely
for
FeSiMn,
the Community
interest issue was made jointly for both investiga-
tions. The purpose of this analysis was to deter-
mine the possible impact of measures and the
consequences of not taking measures for all parties
it
involved in both proceedings. Furthermore,
should be noted that, given the timing of
the
review investigation, any actual impact of the anti-
dumping measures
since 1995 to
imports originating in Brazil, South Africa, Russia
and Ukraine could be established in the review
investigation conditional upon cooperation from
interested parties.

applicable

user stating that the imposition of measures against
the People’s Republic of China would cause a
significant increase in the cost of production of
steel products. However, since these submissions
were not substantiated, it was not possible to make
a further, detailed analysis of the effects on users of
taking, or not taking measures.

(119) The findings set out in the provisional Regulation,
which established that
for each 10 % dumping
duty imposed, users’ cost of production would
limited amount of 0,1 % are
increase by a
confirmed for the purposes of the definitive meas-
ures.

(120)

It was also argued, that the competitiveness of the
Community stainless steel industry on the world
market could be endangered by the imposition of
definitive anti-dumping measures on FeSiMn. The
Commission examined this allegation and arrived
to the conclusion that
the FeSiMn needed for
export purposes can enter the Community without
any duty under the inward processing regime. One
user is in fact using this regime, importing FeSiMn
from South Africa.

(116)

of

those

including

It should be recalled in this respect that recitals 76
et seq. of the provisional Regulation contained an
analysis of the various interests of all the different
parties,
the Community
industry, importers/traders and of the downstream
user industries. On the basis of the information
available at the time of the provisional Regulation,
there was no
the Commission concluded that
compelling reason not
trade
distorting effects of injurious dumping. In partic-
ular, it was concluded that any possible impact on
the user industry could only be minimal.

to remedy the

2. Interest of the Community industry

(117) After the publication of the provisional Regulation
no comments have been received from any inter-
ested parties which invalidate the conclusions
reached therein.

3. Impact on users

(121) One user claimed that it is against the Community
interest to impose definitively anti-dumping duties
on Chinese imports of FeSiMn due to the fact that
the
industry
the Community
Community market with sufficient quantities.

cannot

supply

the
As far as the competitive environment of
Community market is concerned, user industries
and other economic operators have always enjoyed
the presence of a wide range of sources of supply,
supplementing the Community industry. Even
after the imposition of definitive anti-dumping
measures concerning imports of FeSiMn origin-
ating in China, third country sources of supply will
continue to be available to Community users. In
addition imports originating in China are not
excluded from the Community market. The anti-
dumping measures imposed would merely remove
market
from injurious
dumping and would allow Community producers
to compete at a fair level with these imports.

distortions

resulting

(118) As cited in recital 81 of the provisional Regulation,
the main downstream user industry of the product
under consideration is the steel
industry. Sub-
sequent to the provisional Regulation, comments
were received from two user associations and one

(122) On this basis, the Council confirms the conclusion
that, overall, and in the absence of any substan-
tiated submission by users, any impact on users
would be negligible.

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3. 3. 98

4. Conclusion

(123)

In the light of the above, the preliminary deter-
mination reached at recital 85 of the provisional
Regulation, that it is in the Community interest to
adopt anti-dumping measures, is confirmed.

(127)

2. Definitive duty

(a) Ukraine

In view of the determination of the injury elimina-
tion level set out in recital 124, the minimum
price laid down in the undertakings previously
offered by the two cooperating Ukrainian exporters
should remain unchanged and continue to be
considered as operative. However, these undertak-
ings only applied to FeSiMn produced, exported
and invoiced directly by the two companies to the
in the Community.
first unrelated customer
Exports to the Community of Ukrainian origin
FeSiMn by another means would therefore be
subject to the residual duty currently in force.

(128) As concerns this residual duty, in view of the non-
cooperation (see recital 44 et seq.), the measure has
to be maintained, but converted into a specific
duty. It is considered that this form of measure will
help market stability. On this basis, the residual
measure for Ukraine will be a specific duty of ECU
150 per tonne of product.

(b) People’s Republic of China

(129) Given that

the injury
following the revision of
elimination level the injury margin is still lower
than the revised dumping margin established (see
recitals 64 and 127 of this Regulation), definitive
anti-dumping duties should be imposed on the
basis of the injury margin. As far as the form of the
definitive duty is concerned, it is considered that
the structure of a State-controlled economy gives
the Chinese exporters
considerable room for
manoeuvre to decrease their export prices. There-
fore,
for the same reason as given above with
regard to Ukraine, and also in order to diminish
the risk of absorption of the duty by the Chinese
exporters, a specific duty (namely a fixed amount
per tonne) is considered to be more appropriate in
this case than an ad valorem duty or a variable
duty.

The amount of such a duty has been calculated on
the basis of the injury margin mentioned above
and is ECU 58,3 per tonne of product.

3. Undertakings

(130) The Ukrainian exporters were informed of

the
essential facts and considerations on the basis of
which it was intended to recommend the con-
tinuation of definitive anti-dumping measures in
respect of
imports originating in Ukraine. As
already found in Commission Decision 95/418/
EC (1), it was also considered in the framework of

(1) OJ L 248, 14. 10. 1995, p. 56.

I. DEFINITIVE MEASURES

1. Injury elimination level

(124) For the purpose of establishing a level of duty
which would be adequate to remove the injury to
the Community industry,
it is first necessary to
establish a price level for the Community industry
which enables it to recover its costs and achieve a
reasonable profit
(hereinafter referred to as the
‘injury elimination level').

The determination of the injury elimination level
was re-examined with regard to the provisional
determination and it was found that, in addition to
the weighted average cost of production of
the
Community industry, a profit rate of 5 % on turn-
over was considered to be reasonable for
the
purposes of the definitive determination, partic-
ularly in the light of the limited need for new
investments,
the
product and the reduced levels of research and
development costs.

the comparative simplicity of

The injury elimination level, duly adjusted to take
account of the differences in distribution channels,
was then compared to the weighted-average export
prices for FeSiMn from each of
the exporting
countries concerned on a cif Community frontier
basis, duties paid.

(125) The result of
percentage of
Community-frontier basis
injury margins:

the comparison expressed as a
the export prices on a free-at-
the following

shows

(a) Ukraine

The investigation has confirmed that, in view
of the anti-dumping measures presently applic-
able, Ukrainian export prices are at a non-injur-
ious level.

(b) People’s Republic of China

The injury margin level
14,2 %.

thus established is

(126) Having received no further comments

respect,
the above determination of
elimination level is confirmed by the Council.

in this
the injury

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Official Journal of the European Communities

L 62/17

the terms of

the
the review investigation that
undertaking applicable to Ukrainian exports,
in
particular the price level would still be appropriate
pursuant to Article 8(1) of the Basic Regulation, as
these undertakings would continue to eliminate
the injurious effects of dumping. In view of the
licensing system set up by the Ukrainian author-
ities, it is also considered that such undertakings
can be monitored effectively.

(131) Accordingly,

the Commission invited the two
producer/exporters concerned to confirm whether
they still wished to be bound by the terms of the
existing undertakings. In this respect, both com-
panies did indeed confirm that
they wished to
continue with their undertakings. Consequently,
these undertakings should remain in force.

(132) At a late stage in the proceeding, a Hong Kong
based company (Glory Profit) also enquired about
the possibility of offering an undertaking. In this
respect, it is considered that this company is not
eligible to offer an undertaking since it is a trading
company. The company was advised accordingly of
this decision. In addition, offers of undertakings
made by the Chinese producers related to Glory
Profit could also not be accepted since they did
not cooperate with the investigation.

exporting producers and in the light of the serious-
ness of
the injury caused to the Community
industry, to definitively collect the provisional anti-
dumping duty imposed on the product imported
from the People’s Republic of China at a rate of
ECU 58,3 per tonne of product, which is based on
the
amounts
secured by way of the provisional anti-dumping
measures which exceed this
should be
released,

injury margin established. Any

rate

HAS ADOPTED THIS REGULATION:

Article 1

1. A definitive anti-dumping duty of ECU 58,3 per
tonne of product is hereby imposed on imports of ferro-
silico-manganese
currently falling within CN code
7202 30 00 originating in the People’s Republic of China.

2.
The amounts secured by way of provisional anti-
dumping duties imposed pursuant to Regulation (EC) No
1778/97 on imports of the product under consideration
originating in the People’s Republic of China shall de-
finitively be collected at a rate of ECU 58,3 per tonne of
product. Any amounts secured by way of the provisional
anti-dumping measure which exceed this rate should be
released.

J. CONCLUSION CONCERNING DEFINITIVE

MEASURES

Article 2

(133) The above factors clearly demonstrate that defin-
itive measures, both for the People’s Republic of
China and Ukraine, are warranted. For the reasons
given above, these measures, with the exception of
the existing undertakings, should be in the form of
a specific duty.

(134) As concerns Brazil, Russia and South Africa, the
investigation has
shown that measures are no
longer necessary and that the proceeding should be
terminated in respect of these countries. Neverthe-
less, in order to avoid any potential circumvention,
the Commission will follow closely the develop-
ment of the statistics relating to imports into the
Community of FeSiMn originating in the countries
concerned.

K. COLLECTION OF PROVISIONAL DUTY
PEOPLE’S

WITH REGARD TO THE

REPUBLIC OF CHINA

(135) The Council considers it appropriate, in view of
the

the dumping found for

the magnitude of

Regulation (EC) No 2413/95,
follows:

is hereby amended as

Article 1 shall be replaced by the following:

‘Article 1

A definitive anti-dumping duty of ECU 150 per
tonne of product is imposed on imports of ferro-
silico-manganese currently falling within CN Code
7202 30 00 originating in Ukraine (TARIC additional
code 8848).

This duty shall not apply to imports of the product as
defined in this Article, produced and exported to the
Community by the following companies: (Ukraine (cid:190)
TARIC additional code 8847):

(cid:190) Nikopol Ferro Alloy Plant,

(cid:190) Zaporozhye Ferro Alloy Plant.'

Article 3

The proceeding in respect of imports of the product
under consideration originating in Brazil, South Africa
and Russia is hereby terminated.

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3. 3. 98

Unless otherwise specified, the provisions in force concerning customs duties shall apply
to the said duties.

Article 4

This Regulation shall enter into force on the day following that of its publication in the
Official Journal of the European Communities.

Article 5

This Regulation shall be binding in its entirety and directly applicable in all Member
States.

Done at Brussels, 23 February 1998.

For the Council

The President

R. COOK