[Federal Register Volume 76, Number 48 (Friday, March 11, 2011)]
[Notices]
[Pages 13355-13356]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-5691]
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DEPARTMENT OF COMMERCE
International Trade Administration
[A-821-819]
Magnesium Metal From the Russian Federation: Notice of Court
Decision Not in Harmony With Final Results of Administrative Review and
Notice of Amended Final Results of Administrative Review Pursuant to
Court Decision
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
SUMMARY: On March 1, 2011, the United States Court of International
Trade (CIT) sustained the Department of Commerce's (the Department's)
results of redetermination as applied to PSC VSMPO-AVISMA Corporation
(VSMPO-AVISMA) pursuant to the CIT's remand order in PSC VSMPO-Avisma
Corp. v. United States, 724 F. Supp. 2d 1308 (CIT 2010) (AVISMA II).
The Department is notifying the public that the final CIT judgment in
this case is not in harmony with the Department's final determination
and is amending the final results of the administrative review of the
antidumping duty order on magnesium metal from the Russian Federation
covering the period of review April 1, 2006, through March 31, 2007
with respect to VSMPO-AVISMA.
DATES: Effective Date: March 11, 2011.
FOR FURTHER INFORMATION CONTACT: Dmitry Vladimirov or Minoo Hatten, AD/
CVD Operations, Office 5, Import Administration, International Trade
Administration, U.S. Department of Commerce, 14th Street and
Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-
0665 or (202) 482-1690, respectively.
SUPPLEMENTARY INFORMATION:
Background
On September 10, 2008, the Department published the final results
of the administrative review of the antidumping duty order on magnesium
metal from the Russian Federation for the period of review (POR) April
1, 2006, through March 31, 2007. See Magnesium Metal from the Russian
Federation: Final Results of Antidumping Duty Administrative Review, 73
FR 52642 (September 10, 2008) (Final Results). In the Final Results the
Department determined that it was appropriate to treat raw magnesium
and chlorine gas as co-products and employed a net-realizable-value
(NRV) analysis to allocate joint costs incurred up to the split-off
point where raw magnesium and chlorine gas become separately
identifiable products. The CIT remanded the Final Results to the
Department to take into account an affidavit from Dr. George Foster, an
accounting professor (the Foster Affidavit), when considering the best
methodology for calculating the NRV for the chlorine gas.\1\ See PSC
VSMPO-AVISMA Corp. v. United States, 31 I.T.R.D. 2235 (CIT 2009)
(AVISMA I). In accordance with the CIT's order in AVISMA I, the
Department admitted the Foster Affidavit into the record, considered
the arguments of Dr. Foster upon remand, and, as a result of that
consideration, determined not to recalculate the dumping margin for
VSMPO-AVISMA upon concluding that Dr. Foster's proposed methodology was
not appropriate to use in this case. See Results of Redetermination
Pursuant to Remand, dated March 30, 2010 (First Remand) (available at
http://ia.ita.doc.gov/remands). As a result, in the First Remand the
Department adhered to the same allocation methodology it used in the
Final Results.
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\1\ VSMPO-AVISMA submitted the Foster Affidavit as part of its
administrative case brief, dated June 11, 2008, which the Department
rejected as untimely new factual information.
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In AVISMA II, the CIT remanded the Final Results again, instructing
the Department to consider VSMPO-AVISMA's entire production process,
including titanium production, in allocating joint costs to the subject
merchandise. The CIT found the Department's cost-allocation methodology
in the Final Results to be unsupported by substantial record evidence
and not in accordance with section 773(e)(1) of the Tariff Act of 1930,
as amended (the Act). See AVISMA II, 724 F. Supp. 2d at 1313-16. In
accordance with the CIT's order in AVISMA II, and under respectful
protest, the Department reexamined its calculation methodology to take
VSMPO-AVISMA's entire production process into account, including the
stages of production encompassing and following ilmenite catalyzation,
and, based on that examination, the Department recalculated the
weighted-average dumping margin for VSMPO-AVISMA. See Results of
Redetermination Pursuant to Remand, dated November 22, 2010 (Second
Remand) (available at http://ia.ita.doc.gov/remands). As a result of
the Department's recalculations, the weighted-average dumping margin
for the period April 1, 2006, through March 31, 2007, for magnesium
metal from the Russian Federation is 8.51 percent for VSMPO-AVISMA. The
CIT sustained
[[Page 13356]]
the Department's Second Remand on March 1, 2011. See PSC VSMPO-Avisma
Corp. v. United States, Consol. Court No 08-00321, Slip Op. 11-22
(March 1, 2011) (AVISMA III); see also Second Remand.
Timken Notice
Consistent with the decision of the United States Court of Appeals
for the Federal Circuit (CAFC) in Timken Co. v. United States, 893 F.2d
337 (CAFC 1990) (Timken), as clarified by Diamond Sawblades Mfrs.
Coalition v. United States, 626 F.3d 1374 (CAFC 2010), pursuant to
section 516A(c) of the Act, the Department must publish a notice of a
court decision that is not ``in harmony'' with a Department
determination and must suspend liquidation of entries pending a
``conclusive'' court decision. The CIT's judgment in AVISMA III on
March 1, 2011, sustaining the Department's Second Remand with respect
to VSMPO-AVISMA constitutes a final decision of that court that is not
in harmony with the Department's Final Results. This notice is
published in fulfillment of the publication requirements of Timken.
Accordingly, the Department will continue the suspension of liquidation
of the subject merchandise pending the expiration of the period of
appeal or, if appealed, pending a final and conclusive court decision.
Amended Final Results
Because there is now a final court decision with respect to VSMPO-
AVISMA, the weighted-average dumping margin for the period April 1,
2006, through March 31, 2007, for magnesium metal from the Russian
Federation is 8.51 percent for VSMPO-AVISMA. The cash-deposit rate will
remain the company-specific rate established for the subsequent and
most recent period for which the Department reviewed VSMPO-AVISMA. See
Magnesium Metal From the Russian Federation: Final Results of
Antidumping Duty Administrative Review, 75 FR 56989 (September 17,
2010). In the event the CIT's ruling is not appealed or, if appealed,
upheld by the CAFC, the Department will instruct U.S. Customs and
Border Protection to assess antidumping duties on entries of the
subject merchandise exported during the POR by VSMPO-AVISMA using the
revised assessment rates calculated by the Department in the Second
Remand.
This notice is issued and published in accordance with sections
516A(e)(1), 751(a)(1), and 777(i)(1) of the Act.
Dated: March 7, 2011.
Ronald K. Lorentzen,
Deputy Assistant Secretary for Import Administration.
[FR Doc. 2011-5691 Filed 3-10-11; 8:45 am]
BILLING CODE 3510-DS-P