05-21864. Silicon Metal from Brazil: Notice of Court Decision Not in Harmony

AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

SUMMARY:

On October 6, 2005, in Elkem Metals Company and Globe Metallurgical Inc., v. United States, Slip Op. 05-134, the Court of International Trade (CIT) affirmed the Final Results of Redetermination Pursuant to Court Remand (Remand Redetermination) issued by the Department of Commerce (the Department) on July 14, 2004. Consistent with the decision of the U.S. Court of Appeals for the Federal Circuit (CAFC) in Timken Co. v. United States, 893 F.2d 337 (Fed. Cir. 1990) (Timken), the Department will continue to order the suspension of liquidation of the subject merchandise, where appropriate, until there is a “conclusive” decision in this case. If the case is not appealed, or if it is affirmed on appeal, the Department will instruct U.S. Customs and Border Protection (CBP) to liquidate all relevant entries from Compania Brasilieira Carbureto De Calcio (CBCC) and Electrosilex, S.A. (Electrosilex), as appropriate.

EFFECTIVE DATE:

November 2, 2005.

FOR FURTHER INFORMATION CONTACT:

Zev Primor, AD/CVD Operations, Office 4, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Ave., NW., Washington, DC 20230; telephone: [phone], fax: [phone].

SUPPLEMENTARY INFORMATION:

Background

On February 23, 2001, the Department published the final results of administrative review of the antidumping duty order on silicon metal from Brazil for the period July 1, 1998, through June 30, 1999. See Silicon Metal from Brazil; Final Results of Antidumping Duty Administrative Review and Determination Not to Revoke in Part; 66 FR 11256 (February 23, 2001) (Final Results). CBCC and Electrosilex filed a lawsuit challenging certain aspects of the Final Results. Specifically, CBCC argued that the Department used an incorrect interest rate to calculate its home market imputed credit expense, while Electrosilex asserted that the Department's decision to apply total adverse facts available (AFA) was not in accordance with law and unsupported by record evidence. On April 15, 2004, the CIT remanded this case back to the Department and instructed it ”...to impute anew (1) CBCC's home-market credit costs and (2) Electrosilex's margin of dumping for the period of review implicated that is in accordance with law and supported by substantial evidence on the record.” See Elkem Metals Company and Globe Metallurgical Inc., v. United States, Slip Op. 04-36. The Department issued its final results of remand redetermination on July 14, 2004. See Remand Redetermination. On October 6, 2005, the CIT affirmed the Department's final results of remand redetermination in their entirety.

Suspension of Liquidation

The CAFC, in Timken, held that the Department must publish notice of a decision of the CIT or the CAFC which is not in harmony with the Department's determination. Publication of this notice fulfills that obligation. The CAFC 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 continue to suspend liquidation of unliquidated entries pending the expiration of the period to appeal the CIT's October 6, 2005, decision affirming the Department's remand results or pending a final decision of the CAFC if that decision is appealed. Upon expiration of the period to appeal, or if the CIT's decision is appealed and the CAFC's decision is not in harmony with the Department's determination in the Final Results, the Department will publish in the Federal Register a notice of amended final results for the 1998-1999 administrative review of silicon metal from Brazil.

We are issuing and publishing this notice in accordance with section 516A(c)(1) of the Tariff Act of 1930, as amended.

Dated: October 26, 2005.

Stephen J. Claeys,

Acting Assistant Secretary for Import Administration.