[Federal Register Volume 77, Number 239 (Wednesday, December 12, 2012)]
[Notices]
[Pages 73979-73980]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-29990]
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DEPARTMENT OF COMMERCE
International Trade Administration
[A-821-819]
Magnesium Metal From the Russian Federation: Notice of Reinstated
Final Results of Administrative Review Pursuant to Court Decision
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
SUMMARY: On July 27, 2012, the United States Court of Appeals for the
Federal Circuit (CAFC) reversed and remanded a decision of the United
States Court of International Trade (CIT) and ordered it to reinstate
the final results of the administrative review of the antidumping duty
order on magnesium metal from the Russian Federation covering the
period April 1, 2006, through March 31, 2007, as applied to PSC VSMPO-
AVISMA Corporation (VSMPO-AVISMA). See PSC VSMPO-AVISMA Corp. v. United
States, 688 F.3d 751 (Fed. Cir. 2012) (AVISMA IV); see also Magnesium
Metal from the Russian Federation: Final Results of Antidumping Duty
Administrative Review, 73 FR 52642 (September 10, 2008) (Final
Results). On November 20, 2012, the CIT issued final judgment pursuant
to the CAFC's remand order in AVISMA IV reinstating the final results
of administrative review with respect to VSMPO-AVISMA. See PSC VSMPO-
AVISMA Corp. v. United States, Consol. Court No 08-00321, Slip Op. 12-
142 (Ct. Int'l Trade November 20, 2012) (AVISMA V). Having previously
amended the final results of administrative review pursuant to the
earlier CIT decision, the Department of Commerce (the Department) is,
in accordance with AVISMA V, once again amending the final results of
the administrative review with respect to VSMPO-AVISMA to reinstate its
original determination. See Final Results.
DATES: Effective Date: March 11, 2011.
FOR FURTHER INFORMATION CONTACT: Dmitry Vladimirov or Minoo Hatten, AD/
CVD Operations, Office 1, 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 April 1,
2006, through March 31, 2007. See Final Results. In the Final Results
the Department determined that it was appropriate to treat raw
magnesium and chlorine gas manufactured by VSMPO-AVISMA as co-products
and to employ 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 Department
calculated a weighted-average dumping margin for AVISMA of 15.77
percent for the period April 1, 2006, through March 31, 2007. See Final
Results, 73 FR at 52643.
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, Consol. Court No 08-00321, Slip Op. 09-120 (Ct. Int'l
Trade October 20, 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 used 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 PSC VSMPO-AVISMA Corp. v. United States, 724 F. Supp. 2d 1308
(Ct. Int'l Trade 2010) (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
[[Page 73980]]
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 became 8.51
percent for VSMPO-AVISMA. See Second Remand. 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 (Ct. Int'l
Trade March 1, 2011) (AVISMA III).
On March 11, 2011, consistent with 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 (Fed. Cir. 2010), and
pursuant to section 516A(c) of the Act, the Department notified the
public that the final CIT judgment in AVISMA III was not in harmony
with the Department's final determination and amended the final results
of the administrative review with respect to VSMPO-AVISMA to reflect
the final CIT judgment in AVISMA III. See 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, 76 FR 13355 (March
11, 2011).
On July 27, 2012, the CAFC reversed and remanded the decision of
the CIT and ordered it to reinstate the final results of the
administrative review as applied to VSMPO-AVISMA. See AVISMA IV, 688
F.3d at 765. In AVISMA IV, the CAFC found that the CIT infringed upon
the Department's authority to implement and enforce proper procedures
for constructing an agency record in its proceedings by requiring the
Department to consider the untimely submitted Foster Affidavit. See id.
at 761-62. Further, in AVISMA IV, the CAFC found that the CIT erred in
its interpretation of section 773(e)(1) of the Act by mandating the
Department to adopt the facility-wise cost allocation methodology and
that the Department's choice of accounting methodology in the Final
Results was supported by substantial record evidence and in accordance
with law. See id. at 762-65. On November 20, 2012, the CIT issued final
judgment implementing the CAFC's remand order in AVISMA IV and ordering
reinstatement of the Final Results. See AVISMA V.
Reinstatement of Final Results
Because AVISMA V is a final court decision with respect to VSMPO-
AVISMA, the Department is amending the final results of administrative
review by reinstating the weighted-average dumping margin established
in the Final Results for VSMPO-AVISMA. Accordingly, the weighted-
average dumping margin for the period April 1, 2006, through March 31,
2007, for magnesium metal from the Russian Federation is 15.77 percent
for VSMPO-AVISMA. See Final Results, 73 FR at 52643. The Department
will instruct U.S. Customs and Border Protection to assess antidumping
duties on entries of the subject merchandise manufactured and exported
during the POR by VSMPO-AVISMA using the assessment rates calculated by
the Department in the Final Results. See id.
This notice is issued and published in accordance with sections
516A(e)(1), 751(a)(1), and 777(i)(1) of the Act.
Dated: December 5, 2012.
Paul Piquado,
Assistant Secretary for Import Administration.
[FR Doc. 2012-29990 Filed 12-11-12; 8:45 am]
BILLING CODE 3510-DS-P