98-32722. Pure Magnesium From Ukraine: Notice of Court Decision and Suspension of Liquidation

[Federal Register Volume 63, Number 236 (Wednesday, December 9, 1998)]
[Notices]
[Pages 67854-67855]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-32722]


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DEPARTMENT OF COMMERCE

International Trade Administration
[A-823-806]


Pure Magnesium From Ukraine: Notice of Court Decision and 
Suspension of Liquidation

AGENCY: Import Administration, International Trade Administration, 
Department of Commerce.

ACTION: Notice.

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SUMMARY: On October 20, 1998, in Gerald Metals, Inc. v. United States, 
Court No. 95-06-00782, Slip Op. 98-148 (CIT), a lawsuit challenging the 
final affirmative determination of the U.S. International Trade 
Commission (the ``Commission'') that less-than-fair-value (``LTFV'') 
imports of pure magnesium from Ukraine were causing material injury to 
the domestic industry, the U.S. Court of International Trade (``CIT'') 
affirmed the Commission's remand determination, which found no material 
injury as well as no threat to material injury, and entered a judgment 
order dismissing the case. The issue of material retardation of the 
establishment of a U.S. industry was never raised before the 
Commission. Consistent with the decision of the U.S. Court of Appeals 
for the Federal Circuit (``Federal Circuit'') in Timken Co. v. United 
States, 893 F.2d 337 (Fed. Cir. 1990) (``Timken''), the U.S. Department 
of Commerce (the ``Department'') will continue to order the suspension 
of liquidation of the subject merchandise until there is a 
``conclusive'' decision in this case. If the case is not appealed, or

[[Page 67855]]

if it is affirmed on appeal, the Department will revoke the antidumping 
order covering the subject merchandise.

EFFECTIVE DATE: December 9, 1998.

FOR FURTHER INFORMATION CONTACT: Brian Smith or Everett Kelly, Import 
Administration, International Trade Administration, U.S. Department of 
Commerce, 14th Street and Constitution Avenue, N.W., Washington, D.C. 
20230; telephone: [phone] or [phone], respectively.

SUPPLEMENTARY INFORMATION:

Background

    The Department published notice of its final affirmative LTFV 
determination covering the subject merchandise, i.e., imports of pure 
magnesium from Ukraine, on March 30, 1995, Final Affirmative 
Determination of Sales at Less Than Fair Value; Pure Magnesium from 
Ukraine, 60 FR 16432, and the Commission subsequently made its final 
affirmative determination that a U.S. industry was being materially 
injured by reason of imports of the subject merchandise. See Magnesium 
from China, Russia, and Ukraine, 60 FR 26456 (May 17, 1995). The 
Department published an antidumping order covering the subject 
merchandise on May 12, 1995. See Antidumping Duty Orders; Pure 
Magnesium from the People's Republic of China, the Russian Federation 
and Ukraine, 60 FR 25691.
    Following publication of the antidumping duty order, Gerald Metals, 
Inc. (``Gerald Metals'') an interested party in this case, filed a 
lawsuit with the CIT challenging the Commission's final affirmative 
determination of material injury. In its first decision, the CIT 
affirmed the Commission's final affirmative determination of material 
injury. However, the Federal Circuit subsequently directed the CIT to 
vacate its decision to affirm the Commission's final affirmative 
determination of material injury and to remand the case to the 
Commission. See Gerald Metals, Inc. v. United States, 132 F.3d 716 
(Fed. Cir. 1997). On remand, the Commission determined that the U.S. 
industry was not being materially injured, and was not threatened with 
material injury, by reason of imports of the subject merchandise. The 
CIT affirmed the Commission's remand determination on October 20, 1998. 
See Gerald Metals, Inc. v. United States, Court No. 95-06-00782, Slip 
Op. 98-148 (CIT).

Suspension of Liquidation

    In its decision in Timken, the Federal Circuit held that the 
Department must publish notice of a decision of the CIT or the Federal 
Circuit which is not ``in harmony'' with the Department's or the 
Commission's determination. Publication of this notice fulfills that 
obligation. The Federal Circuit also held that the Department must 
suspend liquidation of the subject merchandise until there is a 
``conclusive'' decision in the case. Therefore, pursuant to Timken, the 
Department must suspend liquidation pending the expiration of the 
period to appeal the CIT's October 20, 1998 decision or, if that 
decision is appealed, pending a final decision by the Federal Circuit. 
However, because entries of pure magnesium and alloy magnesium from 
Ukraine already are being suspended pursuant to the antidumping duty 
orders in effect, the Department need not order the Customs Service to 
suspend liquidation. Furthermore, consistent with Timken, the 
Department will revoke the antidumping duty order covering the subject 
merchandise in the event that the CIT's ruling is not appealed or the 
Federal Circuit issues a final decision affirming the CIT's ruling.

    Dated: December 1, 1998.
Robert S. LaRussa,
Assistant Secretary for Import Administration.
[FR Doc. 98-32722 Filed 12-8-98; 8:45 am]
BILLING CODE 3510-DS-P