2011-5691. 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: [phone] or [phone], 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.

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 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.

Footnotes

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.