[Federal Register Volume 77, Number 94 (Tuesday, May 15, 2012)]
[Notices]
[Pages 28570-28571]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-11734]
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DEPARTMENT OF COMMERCE
International Trade Administration
[A-570-832]
Pure Magnesium From the People's Republic of China: Notice of
Court Decision Not in Harmony With Final Results and Notice of Amended
Final Results
SUMMARY: On April 25, 2012, the United States Court of International
Trade (``CIT'') sustained the Department of Commerce's (``the
Department'') final results of redetermination pursuant to voluntary
remand of the 2006-2007 antidumping duty administrative review of pure
magnesium from the People's Republic of China (``Voluntary Remand
Redetermination'').\1\ 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 (Fed. Cir. 1990) (``Timken''), as
clarified by Diamond Sawblades Mfrs. Coalition v. United States, 626
F.3d 1374 (CAFC 2010) (``Diamond Sawblades''), the Department is
notifying the public that the final judgment in this case is not in
harmony with the Department's final results and is amending the final
results of the administrative review of pure magnesium from the
People's Republic of China (``PRC'') with respect to the margin
assigned to Tianjin Magnesium International Co., Ltd. (``TMI'')
covering the period of review (``POR'') May 1, 2006, through April 30,
2007.\2\
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\1\ See Final Results of Redetermination Pursuant to Voluntary
Remand issued by the Department of Commerce, Court No. 09-00012,
dated October 28, 2011, available at: http://www.ia.ita.doc.gov/remands/index.html.
\2\ See Pure Magnesium from the People's Republic of China:
Final Results of Antidumping Duty Administrative Review, 73 FR 76336
(December 16, 2008) and accompanying Issues and Decision Memorandum
(``Final Results'').
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DATES: Effective Date: May 5, 2012.
FOR FURTHER INFORMATION CONTACT: Laurel LaCivita, Office 8, Import
Administration, International Trade Administration, U.S. Department of
Commerce, 14th Street and Constitution Avenue NW., Washington, DC
20230; telephone: (202) 482-4243.
SUPPLEMENTARY INFORMATION: In the Final Results, the Department granted
TMI's request for two by-product offsets, and calculated a dumping
margin for TMI of 0.63 percent. TMI and US Magnesium LLC
(``Petitioner'') initially challenged the final results with respect to
several issues, and the court remanded two issues to the Department.\3\
During litigation proceedings for the 2006-2007 review, verification of
TMI and its suppliers took place in the PRC for the 2007-2008 review.
At verification, TMI's producer revealed that there were no by-product
sales prior to April 2007, i.e. during the previous POR. During the
first remand proceedings, Petitioner placed the 2007-2008 review
verification report on the record of this litigation. The Department
initially determined not to consider the evidence because it was from a
subsequent review and did not exist when the Department made its
determination in the 2006-2007 final results.
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\3\ In the first remand order, the Department was instructed to:
(1) Further explain the valuation of TMI's by-product offsets; and
(2) further explain the Department's determination to use the
surrogate financial ratios for overhead, selling, general and
administrative expenses (``SG&A'') and profit of Madras Aluminum Co.
Ltd. in the normal value calculation. See Tianjin Magnesium Int'l
Co. v. United States, 722 F. Supp. 2d 1322 (CIT 2010).
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Shortly thereafter, the CAFC issued its decision in Home Prods.
Int'l, Inc. v. United States,\4\ holding that a court abuses its
discretion when it declines to remand to an agency when evidence
sufficient to make a prima facie case that the agency proceedings under
review were tainted by material fraud is presented. Based on the
standard set forth in Home Products, the Department requested a
voluntary remand to determine whether to reopen the administrative
record and consider the 2007-2008 verification report. On remand, the
Department determined there was clear and convincing evidence
sufficient to make a prima facie case that the 2006-2007 administrative
review was tainted by fraud and reopened the record. The Department
also determined, based on this evidence, that application of total
adverse facts available to TMI was warranted because TMI had continued
to seek by-product offsets even though record evidence clearly
established that no by-product sales existed during the POR. The
Department assigned to TMI a rate of 111.73, the calculated rate for
the other mandatory respondent in the 2006-2007 review. The
Department's final results of redetermination therefore changed TMI's
margin from 0.63 percent to
[[Page 28571]]
111.73 percent. On April 25, 2012, the CIT sustained the Department's
Voluntary Remand Redetermination.\5\
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\4\ See Home Prods. Int'l, Inc. v. United States, 633 F.3d 1369
(CAFC 2011) (``Home Products'').
\5\ Tianjin Magnesium Int'l, Co. v. United States, Ct. No. 09-
00012, Slip Op. 12-54 (CIT April 25, 2012).
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Timken Notice
In its decision in Timken, 893 F.2d at 341, as clarified by Diamond
Sawblades, the CAFC has held that, pursuant to section 516A(e) 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 April 25, 2012 judgment sustaining the Department's voluntary
remand results with respect to TMI 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. The cash deposit rate will remain the company-specific rate
established for the subsequent and most recent period during which the
respondent was reviewed.\6\
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\6\ See Pure Magnesium From the People's Republic of China:
Final Results of the 2009-2010 Antidumping Duty Administrative
Review of the Antidumping Duty Order, 76 FR 76945 (December 9,
2011).
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Amended Final Determination and Order
Because there is now a final court decision, we are amending the
Final Results with respect to TMI's margin for the period May 1, 2006
through April 30, 2007. The revised weighted-average dumping margin is
as follows: \7\
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\7\ The rate for the other mandatory respondent in the instant
administrative review, Shangxi Datuhu Coke & Chemicals Co., Ltd.
(``Datuhe''), remains unchanged. In its first remand order, the
Court resolved a ministerial error allegation, holding that there
was no ministerial error because the Department's acts were
intentional. See Tianjin Magnesium Int'l, Co. v. United States, Ct.
No. 09-00012, Slip Op. 10-87 (CIT August 9, 2010).
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Percent
Exporter margin
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Tianjin Magnesium International Co., Ltd...................... 111.73
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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 by TMI during the POR using the revised
assessment rate calculated by the Department in the Voluntary Remand
Redetermination.
This notice is issued and published in accordance with sections
516A(e)(1), 751(a)(1), and 777(i)(1) of the Act.
Dated: May 9, 2012.
Paul Piquado,
Assistant Secretary for Import Administration.
[FR Doc. 2012-11734 Filed 5-14-12; 8:45 am]
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