[Federal Register Volume 70, Number 59 (Tuesday, March 29, 2005)]
[Notices]
[Pages 15838-15840]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E5-1388]



[[Page 15838]]

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DEPARTMENT OF COMMERCE

International Trade Administration

A-570-896


Notice of Amended Final Determination of Sales at Less Than Fair 
Value: Magnesium Metal from the People's Republic of China

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

EFFECTIVE DATE:  March 29, 2005.

FOR FURTHER INFORMATION CONTACT: Lilit Astvatsatrian, Import 
Administration, International Trade Administration, U.S. Department of 
Commerce, 14th Street and Constitution Avenue NW., Washington, DC 
20230; telephone: (202) 482-6412.

SUPPLEMENTARY INFORMATION:

Amendment to Final Determination

    In accordance with sections 735(d) and 777(i)(1) of the Tariff Act 
of 1930, as amended, (``the Act''), on February 24, 2005, the 
Department of Commerce (``the Department'') published its notice of 
final determination of sales at less than fair value (``LTFV'') in the 
investigation of magnesium metal from the People's Republic of China 
(``PRC''). See Notice of Final Determination of Sales at Less Than Fair 
Value: Magnesium Metal from the People's Republic of China, 70 FR 9037 
(February 24, 2005) (``Final Determination''), and corresponding 
memorandum to Joseph A. Spetrini, Acting Assistant Secretary for Import 
Administration from Barbara E. Tillman, Acting Deputy Assistant 
Secretary for Import Administration, Issues and Decision Memorandum for 
the Less-Than-Fair-Value Investigation of Magnesium Metal from the 
People's Republic of China, dated February 16, 2005, (``Issues and 
Decision Memorandum''). On February 28, 2005, Tianjin Magnesium 
International Co., Ltd. (``Tianjin''), filed timely allegations stating 
that the Department made ministerial errors in its final determination. 
On March 7, 2005, Petitioners\1\ filed comments rebutting Tianjin's 
ministerial error allegations.
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    \1\ U.S. Magnesium Corporation LLC, United Steelworkers of 
America, Local 8319, and Glass, Molders, Pottery, Plastics & Allied 
Workers International, Local 374.
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    After analyzing Tianjin' s comments and Petitioners' rebuttal 
comments, we have determined that our calculations in the Final 
Determination for Tianjin included ministerial errors as defined in 
section 735(e) of the Act and 19 CFR 351.224(f). Therefore, in 
accordance with section 735(e) of the Act, we are amending the final 
determination of sales at LTFV in the antidumping duty investigation of 
magnesium metal from the PRC for Tianjin. In addition, we based the 
margin in the Final Determination for Beijing Guangling Jinghua Science 
& Technology Co., Ltd. (``Guangling'') on the weighted-average margin 
for the mandatory respondents covered by this investigation, excluding 
any rates that are zero, de minimis, or based entirely on adverse facts 
available. Because that rate has changed as a result of the correction 
of ministerial errors since the final determination, we have revised 
Guangling's rate accordingly. The revised weighted-average dumping 
margins are listed in the Amended Final Determination section, below.

Period of Investigation

    The period of investigation (``POI'') is July 1, 2003, through 
December 31, 2003.

Scope of Investigation

    The products covered by this investigation are primary and 
secondary alloy magnesium metal regardless of chemistry, raw material 
source, form, shape, or size. Magnesium is a metal or alloy containing 
by weight primarily the element magnesium. Primary magnesium is 
produced by decomposing raw materials into magnesium metal. Secondary 
magnesium is produced by recycling magnesium-based scrap into magnesium 
metal. The magnesium covered by this investigation includes blends of 
primary and secondary magnesium.
    The subject merchandise includes the following alloy magnesium 
metal products made from primary and/or secondary magnesium including, 
without limitation, magnesium cast into ingots, slabs, rounds, billets, 
and other shapes, magnesium ground, chipped, crushed, or machined into 
raspings, granules, turnings, chips, powder, briquettes, and other 
shapes: products that contain 50 percent or greater, but less than 99.8 
percent, magnesium, by weight, and that have been entered into the 
United States as conforming to an ``ASTM Specification for Magnesium 
Alloy''\2\ and thus are outside the scope of the existing antidumping 
orders on magnesium from the PRC (generally referred to as ``alloy'' 
magnesium).
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    \2\ The meaning of this term is the same as that used by the 
American Society for Testing and Materials in its Annual Book of 
ASTM Standards: Volume 01.02 Aluminum and Magnesium Alloys.
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    The scope of this investigation excludes the following merchandise: 
(1) all forms of pure magnesium, including chemical combinations of 
magnesium and other material(s) in which the pure magnesium content is 
50 percent or greater, but less than 99.8 percent, by weight, that do 
not conform to an ``ASTM Specification for Magnesium Alloy``;\3\ (2) 
magnesium that is in liquid or molten form; and (3) mixtures containing 
90 percent or less magnesium in granular or powder form, by weight, and 
one or more of certain non-magnesium granular materials to make 
magnesium-based reagent mixtures, including lime, calcium metal, 
calcium silicon, calcium carbide, calcium carbonate, carbon, slag 
coagulants, fluorspar, nephaline syenite, feldspar, alumina (Al203), 
calcium aluminate, soda ash, hydrocarbons, graphite, coke, silicon, 
rare earth metals/mischmetal, cryolite, silica/fly ash, magnesium 
oxide, periclase, ferroalloys, dolomite lime, and colemanite.\4\
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    \3\ This material is already covered by existing antidumping 
orders. See Antidumping Duty Orders: Pure Magnesium from the 
People's Republic of China, the Russian Federation and Ukraine; 
Amended Final Determination of Sales at Less Than Fair Value: 
Antidumping Duty Investigation of Pure Magnesium from the Russian 
Federation, 60 FR 25691 (May 12, 1995), and Antidumping Duty Order: 
Pure Magnesium in Granular Form from the People's Republic of China, 
66 FR 57936 (November 19, 2001).
    \4\ This third exclusion for magnesium-based reagent mixtures is 
based on the exclusion for reagent mixtures in the 2000-2001 
investigations of magnesium from the PRC, Israel, and Russia. See 
Final Determination of Sales at Less Than Fair Value: Pure Magnesium 
in Granular Form From the People's Republic of China, 66 FR 49345 
(September 27, 2001); Final Determination of Sales at Less Than Fair 
Value: Pure Magnesium From Israel, 66 FR 49349 (September 27, 2001); 
Final Determination of Sales at Not Less Than Fair Value: Pure 
Magnesium From the Russian Federation, 66 FR 49347 (September 27, 
2001). These mixtures are not magnesium alloys because they are not 
chemically combined in liquid form and cast into the same ingot.
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    The merchandise subject to this investigation is currently 
classifiable under items 8104.19.00 and 8104.30.00 of the Harmonized 
Tariff Schedule of the United States (``HTSUS''). Although the HTSUS 
items are provided for convenience and customs purposes, the written 
description of the merchandise under investigation is dispositive.

Allegation 1: Surrogate Value for Pure Magnesium

    Tianjin contends that in the final determination the Department 
intended to rely on a time period that is contemporaneous with the POI 
for the valuation of pure magnesium, but rather used a value reflecting 
a different time period. Tianjin claims that, in the preliminary 
determination, the Department used the correct value of

[[Page 15839]]

$1,340 for RSM\5\ but in the final determination used a value of 
$1,800+ for Tianjin.
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    \5\ In the preliminary determination, we determined that the 
following companies were collapsed members of the RSM group of 
companies for the purposes of this investigation: Nanjing Yunhai 
Special Metals Co., Ltd. (Yunhai Special), 
Nanjing Welbow Metals Co., Ltd. (Welbow), 
Nanjing Yunhai Magnesium Co., Ltd. (Yunhai 
Magnesium), Shanxi Wenxi Yunhai Metals Co., Ltd. 
(Wenxi Yunhai). See Memorandum to Laurie 
Parkhill, Director, Office 8, NME/China Group, from Laurel LaCivita, 
Senior Case Analyst, through Robert Bolling, Program Manager: 
Antidumping Duty Investigation of Magnesium Metal from the People's 
Republic of China: Affiliation and Collapsing of Members of the RSM 
Group and its Affiliated U.S. Reseller, Toyota Tsusho America, Inc., 
dated September 24, 2004.
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    Petitioners argue that section 735(e) of the Act and 19 CFR 
351.224(f) define ministerial errors as ``errors in addition, 
subtraction, or other arithmetic functions, clerical errors resulting 
from inaccurate copying, duplication, or the like, and any other type 
of unintentional error which the administering authority considers 
ministerial.'' Thus, Petitioners contend that the Act and regulations 
explicitly provide that to be classified as a ``ministerial error,'' 
the Department's action must involve arithmetic or keypunch errors or 
other types of unintentional errors. Petitioners, citing Amended Final 
Results of Antidumping Duty Administrative Reviews: Certain Cold-Rolled 
and Corrosion-Resistant Carbon Steel Flat Products from Korea, 66 FR 
14883 (March 14, 2001), Final Affirmative Countervailing Duty 
Determination: Certain Cut- to-Length Carbon-Quality Steel Plate From 
Italy, 64 FR 73244, (December 29, 1999), and Final Determination of 
Sales at Less Than Fair Value; Solid Fertilizer Grade Ammonium Nitrate 
From the Russian Federation, 65 FR 42669 (July 11, 2000), argue that 
the Department has stated that if it intended to perform a calculation 
in a certain manner, it has made a methodological or policy choice, 
which by definition cannot be a ministerial error. Petitioners further 
contend that the Department cannot correct non-ministerial errors in 
the ministerial-error process.
    Petitioners argue that the errors identified by Tianjin during the 
ministerial-error process do not involve arithmetic errors and are not 
the result of inaccurate copying or duplication. Further, Petitioners 
contend that the record shows that the Department intentionally chose 
to perform the calculations in the final determination in the manner 
that Tianjin now asserts constitutes a ministerial error. Therefore, 
Petitioners argue that the Department should reject Tianjin's 
allegations of ministerial error with respect to the valuation of pure 
magnesium.
    Petitioners claim that a review of Comment 7 of the Issues and 
Decision Memorandum, and Attachment VI of the Memorandum to the File 
from Laurel LaCivita, Lilit Astvatsatrian and Steven Winkates, Case 
Analysts, through Robert Bolling, Program Manager, and Laurie Parkhill, 
Office Director: Magnesium Metal from the People's Republic of China: 
Factors Valuation Memorandum for the Preliminary Determination, dated 
September 24, 2004 (``Factor-Valuation Memorandum''), shows that the 
Department intended to use the pure magnesium price of $1,883 per 
metric ton. Petitioners further maintain that the Department further 
confirmed its intention to use the $1,883 per metric ton value by 
rejecting Petitioners' request to broaden the valuation period for pure 
magnesium. Petitioners assert that the Department used the $1,883 value 
in the calculations for the preliminary determination for Tianjin, then 
stated specifically in the surrogate-value memorandum for the final 
determination that it intended no changes to surrogate values for raw 
materials in the final determination. Thus, Petitioners argue, because 
the Department used the value that it intended to use in the final 
determination, there was no ministerial error with respect to pure 
magnesium.
Department's Position: In the preliminary determination, we explained 
that ``we valued direct materials, energy, and packing materials using 
publicly available import prices reported in the Monthly Statistics of 
the Foreign Trade of India for the POI.'' See memorandum to the file 
from Laurel LaCivita, Case Analyst, Lilit Astvatsatrian, Case Analyst, 
Steven Winkates, Case Analyst, through Robert Bolling, Program Manager, 
and Laurie Parkhill, Office Director, Magnesium Metal from the People's 
Republic of China: Factor Valuation Memorandum for the Preliminary 
Determination, dated September 24, 2004 (``Preliminary Factor-Valuation 
Memorandum''), at 3. The value the Department cited in its preliminary 
factor-valuation memorandum was $1,337.86 per metric ton. See 
Preliminary Factor-Valuation Memorandum at Attachment IV. However, in 
calculating Tianjin's margin in the preliminary determination, we 
inadvertently used the value of $1,882.94 per metric ton as the 
surrogate value for pure magnesium, rather than the figure identified 
in Attachment IV of the Preliminary Factor-Valuation Memorandum. Thus, 
the error made with respect to the valuation of pure magnesium for 
Tianjin represents the type of inadvertent typographical error 
described in section 735(e) of the Act, and 19 CFR 351.224(f).
    Because none of the interested parties made allegations of clerical 
errors with respect to the valuation for pure magnesium for Tianjin 
after the preliminary determination or in the case briefs, in the Final 
Determination we stated that we did not intend to change the surrogate 
values for raw materials, not realizing that we had inadvertently used 
an incorrect value for pure magnesium in the preliminary determination. 
See Issues and Decision Memorandum at Comment 7. As a result, we 
determine that the correct surrogate value for pure magnesium should be 
$1,337.86 per metric ton as stated in the Preliminary Factor-Valuation 
Memorandum. See also the memorandum to the file from Lilit 
Astvatsatrian, Case Analyst, through Robert Bolling, Program Manager, 
Magnesium Metal from the People's Republic of China: Factor Valuation 
Memorandum for the Amended Final Determination, dated March 22, 2005 
(``Amended Final Factor Valuation Memorandum''), at 1, and memorandum 
to the file from Lilit Astvatsatrian, Case Analyst, through Robert 
Bolling, Program Manager, Amended Final Analysis Memorandum for the 
Amended Final Determination of the Antidumping Duty Investigation of 
Magnesium Metal from the People's Republic of China: Tianjin Magnesium 
International Co., Ltd. (``Tianjin''), dated March 22, 2005 (``Tianjin 
Amended Final Analysis Memorandum''), at 1-2. Therefore, for this 
amended final determination, we have revised our calculations to 
reflect a POI value for pure magnesium of $1,337.86.

Allegation 2: Surrogate Value for No. 2. Flux

    Tianjin contends that page 20 of its case brief explains that No. 2 
flux is comprised of several elements, but that the Department 
inadvertently valued only one of them in its calculations for the Final 
Determination. Tianjin claims that ``No. 2 flux is No. 2 flux, and not 
just one of its elements, else it would have been called by that 
element.''
    Petitioners argue that Tianjin's comment regarding No. 2 flux is 
not clear and does not specify an alleged ministerial error. Further, 
Petitioners argue, in the Final Determination the Department stated 
that it intended to value No. 2 flux using the same surrogate value it 
used in the preliminary determination because respondent did not 
provide an alternative value. See Issues and Decision Memorandum, at 
Comment 10.

[[Page 15840]]

Therefore, Petitioners contend that, because the Department used the 
value it intended to use for valuation of No. 2 flux, there is no 
ministerial error.
Department's Position: First, we agree with petitioners that Tianjin's 
clerical error allegation with respect to No. 2 flux is not clear and 
that Tianjin does not specify exactly what clerical error it is 
alleging nor how to remedy the error. With respect to the valuation of 
No. 2 flux, the Department recognizes that the surrogate value used in 
the preliminary and final determinations may relate to only one of the 
three components which comprise No. 2 flux. As stated in the Final 
Determination, however, we find that this value constitutes the most 
appropriate information available on the record of this proceeding for 
purposes of valuing No. 2 flux.
    While Tianjin argued in its case brief that ``No. 2 flux consists 
of 0.46 kg of magnesium chloride, 0.49 kg of potassium chloride, and 
0.08 kg of barium chloride,'' citing RSM's September 14, 2004 
submission at Exhibit 11, pages 2.13 2.15, it provides no record 
evidence to substantiate its allocation methodology with respect to 
Tianjin. There is no information on the record of this proceeding 
concerning the chemical specifications of the No. 2 flux used by 
Tianjin in the production of subject merchandise. Therefore, in our 
Final Determination, we made no changes to the valuation methodology 
used in the preliminary determination. See Issues and Decision 
Memorandum at Comment 10.
    It appears that Tianjin's allegation of a clerical error with 
respect to the valuation of No. 2 flux constitutes a request for a 
methodological change and, as such, does not meet the definition of 
ministerial error under section 735(c) of the Act, and 19 CFR 
351.224(f). Consequently, we have made no changes to the valuation of 
No. 2 flux in this amended final determination.

Allegation 3: Surrogate Value for Packing Unskilled Labor

    Tianjin states the Department used a surrogate value of $1.90/hour 
for unskilled packing labor. Tianjin contends that this price is above 
the one listed on the Department's website for surrogate wage 
calculations.
    The Petitioners did not comment on this issue.
Department's Position: We have determined that we made an inadvertent 
error in our Final Determination in calculating the unskilled packing 
labor rate. Our preliminary determination stated that ``in accordance 
with 19 C.F.R. 351.408(c)(3), we applied the 2001 regression-based wage 
rate of US$ 0.90/hour calculated by the Department for the PRC, as 
posted on the Department's website at http://ia.ita.doc.gov/wages/
01wages/01wages.html.'' See Preliminary Factor-Valuation Memorandum, at 
4. However, in our preliminary and final determinations, we 
inadvertently used a $1.90/hour rate to value unskilled packing labor. 
Therefore, for the amended final determination, we have revised the 
$1.90/hour rate to be $0.90/hour for valuation of unskilled packing 
labor.

Amended Final Determination

    After analyzing all interested party comments and rebuttals, we 
have determined, in accordance with 735(e) of the Act and 19 CFR 
351.224(e), that we made ministerial errors in our calculations 
performed for the final determination. Therefore, we are amending the 
final determination of sales at LTFV in the antidumping duty 
investigation of magnesium metal from the PRC. The revised dumping 
margins are as follows:

                      Magnesium Metal from the PRC
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                                                       Weighted-Average
                Manufacturer/Exporter                       Margin
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Tianjin.............................................              49.66%
Guangling...........................................              49.66%
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Continuation of Suspension of Liquidation

    In accordance with section 735(c)(1)(B) of the Act, we will 
instruct U.S. Customs and Border Protection (``CBP'') to continue to 
suspend liquidation of all entries of subject merchandise from the PRC, 
entered or withdrawn from warehouse, for consumption on or after 
October 4, 2004, the date of publication of the Preliminary 
Determination. We will also instruct CBP to require cash deposit or the 
posting of a bond equal to the estimated amount by which the normal 
value exceeds the U.S. price as indicated in the chart above. These 
instructions suspending liquidation will remain in effect until further 
notice.
    This determination is issued and published pursuant to sections 
735(d) and 777(i)(1) of the Act.

    Dated: March 21, 2005.
Joseph A. Spetrini,
Acting Assistant Secretary for Import Administration.
[FR Doc. E5-1388 Filed 3-28-05; 8:45 am]
BILLING CODE: 3510-DS-S