[Federal Register Volume 74, Number 64 (Monday, April 6, 2009)]
[Notices]
[Pages 15435-15438]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-7690]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-821-819]


Magnesium Metal From the Russian Federation: Preliminary Results 
of Antidumping Duty Administrative Review and Intent To Rescind in Part

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

SUMMARY: In response to timely requests, the Department of Commerce 
(the Department) is conducting an administrative review of the 
antidumping duty order on magnesium metal from the Russian Federation 
for the period of review (POR) April 1, 2007, through March 31, 2008. 
One respondent reported it had no shipments to the United States. As a 
result, the Department intends to rescind the review in part.
    The Department preliminarily determines that the remaining 
respondent made sales to the United States at less than normal value. 
If these preliminary results are adopted in the final results of this 
administrative review, we will instruct U.S. Customs and Border 
Protection (CBP) to assess antidumping duties on entries of the 
respondent's merchandise during the POR. The preliminary results are 
listed below in the section titled ``Preliminary Results of Review.''

DATES: Effective Date: April 6, 2009.

FOR FURTHER INFORMATION CONTACT: Hermes Pinilla 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: (202) 482-
0665 or (202) 482-1690, respectively.

SUPPLEMENTARY INFORMATION: 

Background

    The Department published the antidumping duty order on magnesium 
metal from the Russian Federation on April 15, 2005. See Notice of 
Antidumping Duty Order: Magnesium Metal From the Russian Federation, 70 
FR 19930 (April 15, 2005) (Antidumping Duty Order). On April 1, 2008, 
the Department published in the Federal

[[Page 15436]]

Register a notice of opportunity to request an administrative review of 
the antidumping duty order on magnesium metal from the Russian 
Federation. See Antidumping or Countervailing Duty Order, Finding, or 
Suspended Investigation; Opportunity To Request Administrative Review, 
73 FR 17317 (April 1, 2008). On April 30, 2008, PSC VSMPO-AVISMA 
Corporation (AVISMA), a Russian Federation producer of the subject 
merchandise, requested that the Department conduct an administrative 
review. On April 30, 2008, U.S. Magnesium Corporation LLC, the 
petitioner in this proceeding, also requested that the Department 
conduct an administrative review with respect to AVISMA and Solikamsk 
Magnesium Works (SMW), another Russian Federation producer of the 
subject merchandise. On June 4, 2008, the Department published a notice 
of initiation of an administrative review of the antidumping duty order 
on magnesium metal from the Russian Federation for the period April 1, 
2007, through March 31, 2008. See Initiation of Antidumping and 
Countervailing Duty Administrative Reviews and Requests for Revocation 
in Part, 73 FR 31813 (June 4, 2008).
    On December 29, 2008, the Department extended the deadline for the 
preliminary results of this antidumping duty administrative review from 
December 31, 2008, to March 31, 2009. See Notice of Extension of Time 
Limit for Preliminary Results of Antidumping Duty Administrative 
Review: Magnesium Metal From the Russian Federation, 73 FR 79442 
(December 29, 2008).

Scope of the Order

    The merchandise covered by the order is magnesium metal (also 
referred to as magnesium), which includes primary and secondary pure 
and 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 the order includes blends of primary 
and secondary magnesium.
    The subject merchandise includes the following pure and alloy 
magnesium metal products made from primary and/or secondary magnesium, 
including, without limitation, magnesium cast into ingots, slabs, 
rounds, billets, and other shapes, and magnesium ground, chipped, 
crushed, or machined into raspings, granules, turnings, chips, powder, 
briquettes, and other shapes: (1) Products that contain at least 99.95 
percent magnesium, by weight (generally referred to as ``ultra-pure'' 
magnesium); (2) products that contain less than 99.95 percent but not 
less than 99.8 percent magnesium, by weight (generally referred to as 
``pure'' magnesium); and (3) chemical combinations of magnesium and 
other material(s) in which the magnesium content is 50 percent or 
greater, but less that 99.8 percent, by weight, whether or not 
conforming to an ``ASTM Specification for Magnesium Alloy.''
    The scope of the order excludes: (1) Magnesium that is in liquid or 
molten form; and (2) 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.\1\
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    \1\ This second exclusion for magnesium-based reagent mixtures 
is based on the exclusion for reagent mixtures in the 2001 
investigations of magnesium from China, Israel, and Russia. See 
Notice of 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); Notice of Final Determination of 
Sales at Less Than Fair Value: Pure Magnesium From Israel, 66 FR 
49349 (September 27, 2001); Notice of 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 the order is currently classifiable 
under items 8104.11.00, 8104.19.00, 8104.30.00, and 8104.90.00 of the 
Harmonized Tariff Schedule of the United States (HTSUS). Although the 
HTSUS item numbers are provided for convenience and customs purposes, 
the written description of the merchandise covered by the order is 
dispositive.

Intent To Rescind Review in Part

    On June 20, 2008, SMW submitted a letter indicating that it made no 
sales to the United States during the POR. We have not received 
comments on SMW's submission. We confirmed SMW's claim of no shipments 
by reviewing customs documentation. See Memorandum from International 
Trade Compliance Analyst to the File dated March 24, 2009. Because we 
preliminarily find that SMW had no shipments of subject merchandise 
during the POR, we intend to rescind the administrative review with 
respect to SMW. If we continue to find at the time of our final results 
that SMW had no shipments of subject merchandise from the Russian 
Federation, we will rescind the administrative review with respect to 
SMW pursuant to 19 CFR 351.213(d)(3).

Use of Facts Otherwise Available

    For the reasons discussed below, we preliminarily determine that 
the use of adverse facts available (AFA) is appropriate with respect to 
AVISMA.

A. Use of Facts Available

    Section 776(a)(2) of the Tariff Act of 1930, as amended (the Act), 
provides that, if an interested party withholds information requested 
by the administering authority, fails to provide such information by 
the deadlines for submission of the information and in the form or 
manner requested, subject to subsections (c)(1) and (e) of section 782 
of the Act, significantly impedes a proceeding under this title, or 
provides such information but the information cannot be verified as 
provided in section 782(i) of the Act, the administering authority 
shall use, subject to section 782(d) of the Act, facts otherwise 
available in reaching the applicable determination. Section 782(d) of 
the Act provides that, if the administering authority determines that a 
response to a request for information does not comply with the request, 
the administering authority shall promptly inform the responding party 
and provide an opportunity to remedy the deficient submission. Section 
782(e) of the Act states further that the Department shall not decline 
to consider submitted information if all of the following requirements 
are met: (1) The information is submitted by the established deadline; 
(2) the information can be verified; (3) the information is not so 
incomplete that it cannot serve as a reliable basis for reaching the 
applicable determination; (4) the interested party has demonstrated 
that it acted to the best of its ability; (5) the information can be 
used without undue difficulties.
    On January 21, 2009, AVISMA notified the Department that it would 
not continue to participate in this administrative review and it 
requested the removal of all of its business-proprietary information 
(BPI) from the administrative record. We granted AVISMA's request and 
have removed all of its BPI from the administrative

[[Page 15437]]

record. We also have instructed counsel for the petitioner to destroy 
all copies of AVISMA's BPI data. See Memorandum from Program Manager to 
Office Director dated March 30, 2009; see also letters from the 
Department to the petitioner and AVISMA dated March 30, 2009.
    Because AVISMA has ended its participation in the instant 
administrative review and requested the removal of its BPI from the 
administrative record, AVISMA's actions constitute a refusal to provide 
information necessary to conduct the Department's antidumping analysis 
pursuant to sections 776(a)(2)(A) and (B) of the Act. Moreover, 
AVISMA's withdrawal significantly impedes conduct of the administrative 
review. See section 776(a)(2)(C) of the Act. Therefore, we find that we 
must base the margin for AVISMA on facts otherwise available pursuant 
to sections 776(a)(2)(A), (B), and (C) of the Act. Further, absent any 
response on the record from AVISMA, sections 782(d) and (e) of the Act 
do not apply.

B. Application of Adverse Inferences for Facts Available

    In applying the facts otherwise available, section 776(b) of the 
Act provides that, if the administering authority finds that an 
interested party has failed to cooperate by not acting to the best of 
its ability to comply with a request for information from the 
administering authority, in reaching the applicable determination under 
this title the administering authority may use an inference adverse to 
the interests of that party in selecting from among the facts otherwise 
available.
    Adverse inferences are appropriate ``to ensure that the party does 
not obtain a more favorable result by failing to cooperate than if it 
had cooperated fully.'' See Statement of Administrative Action 
accompanying the Uruguay Round Agreements Act, H.R. Doc. No. 103-316, 
vol. 1 (1994) at 870 (SAA). Further, ``affirmative evidence of bad 
faith on the part of a respondent is not required before the Department 
may make an adverse inference.'' See Antidumping Duties; Countervailing 
Duties, 62 FR 27296, 27340 (May 19, 1997).
    AVISMA's request to return or destroy the company's BPI constitutes 
a refusal to participate in the administrative review and demonstrates 
that AVISMA failed to cooperate by not acting to the best of its 
ability to comply with the Department's request for information. 
Therefore, pursuant to section 776(b) of the Act, the Department has 
preliminarily determined that, in selecting from among the facts 
otherwise available, an adverse inference is warranted. See, e.g., 
Notice of Final Determination of Sales at Less Than Fair Value: 
Circular Seamless Stainless Steel Hollow Products From Japan, 65 FR 
42985, 42986 (July 12, 2000) (the Department applied total AFA where 
the respondent failed to respond to the antidumping questionnaire).

C. Selection and Corroboration of Information Used as Facts Available

    Section 776(b) of the Act provides that the Department may use as 
AFA information derived from the petition, the final determination in 
the investigation, any previous review, or any other information placed 
on the record. When selecting an AFA rate from among the possible 
sources of information, the Department's practice has been to ensure 
that the margin is sufficiently adverse to induce respondents to 
provide the Department with complete and accurate information in a 
timely manner. See, e.g., Certain Steel Concrete Reinforcing Bars From 
Turkey; Final Results and Rescission of Antidumping Duty Administrative 
Review in Part, 71 FR 65082, 65084 (November 7, 2006).
    As total AFA, we have assigned to exports of subject merchandise 
produced and/or exported by AVISMA the rate of 43.58 percent which is 
the highest transaction-specific rate we calculated in the 2006/07 
administrative review of the order with respect to AVISMA. See 
Memorandum to File from International Trade Compliance Analyst entitled 
``Transfer of Information from Record of 2006/07 Review,'' dated March 
31, 2009. We find that this rate is sufficiently adverse to serve the 
purposes of facts available and is appropriate, considering that this 
AFA rate is the highest calculated transaction-specific rate determined 
for AVISMA in this proceeding. In choosing the appropriate balance 
between providing a respondent with an incentive to respond accurately 
and imposing a rate that is reasonably related to the respondent's 
prior commercial activity, selecting the highest prior transaction-
specific margin ``reflects a common sense inference that the highest 
prior margin is the most probative evidence of current margins, 
because, if it were not so, the importer, knowing of the rule, would 
have produced current information showing the margin to be less.'' See 
Rhone Poulenc, Inc. v. United States, 899 F.2d 1185, 1190 (Fed. Cir. 
1990).
    Section 776(c) of the Act provides that, to the extent practicable, 
the Department shall corroborate secondary information used for facts 
available by reviewing independent sources reasonably at its disposal. 
Information from a prior segment of the proceeding constitutes 
secondary information. See SAA at 870 and Antifriction Bearings and 
Parts Thereof From France, et al.: Final Results of Antidumping Duty 
Administrative Reviews, Rescission of Administrative Reviews in Part, 
and Determination To Revoke Order in Part, 69 FR 55574, 55577 
(September 15, 2004). The word ``corroborate'' means that the 
Department will satisfy itself that the secondary information to be 
used has probative value. Id.; see also Tapered Roller Bearings and 
Parts Thereof, Finished and Unfinished, From Japan, and Tapered Roller 
Bearings, Four Inches or Less in Outside Diameter, and Components 
Thereof, From Japan; Preliminary Results of Antidumping Duty 
Administrative Reviews and Partial Termination of Administrative 
Reviews, 61 FR 57391, 57392 (November 6, 1996). To corroborate 
secondary information, the Department will examine, to the extent 
practicable, the reliability and relevance of the information used.
    In selecting the AFA rate for AVISMA, we assigned the rate of 43.58 
percent, which is based on information AVISMA submitted in a previous 
segment of the proceeding. Thus, we find that the AFA rate of 43.58 
percent is reliable. Because the AFA rate of 43.58 percent is based on 
AVISMA's questionnaire responses and accompanying data from the 
immediately preceding administrative review, we find that the rate is 
relevant for use in this administrative review and, therefore, it has 
probative value for use as AFA. As such, the Department finds this rate 
to be corroborated to the extent practicable consistent with section 
776(c) of Act.
    Therefore, as facts available with an adverse inference, we have 
selected the rate of 43.58 percent for AVISMA, the highest calculated 
transaction-specific margin we calculated for AVISMA in the immediately 
preceding administrative review. We consider the 43.58 percent rate to 
be sufficiently high so as to encourage participation in future 
segments of this proceeding.

Preliminary Results of Review

    As a result of our review, we preliminarily determine that the 
dumping margin for AVISMA is 43.58 percent for the period April 1, 
2007, through March 31, 2008.

[[Page 15438]]

Disclosure and Public Comment

    We will disclose pertinent memoranda concerning these preliminary 
results to parties in this review within five days of the date of 
publication of this notice in accordance with 19 CFR 351.224(b). Any 
interested party may request a hearing within 30 days of the 
publication of this notice in the Federal Register. See 19 CFR 351.310. 
If a hearing is requested, the Department will notify interested 
parties of the hearing schedule.
    Interested parties are invited to comment on the preliminary 
results of this review. The Department will consider case briefs filed 
by interested parties within 30 days after the date of publication of 
this notice in the Federal Register. See 19 CFR 351.309(c). Interested 
parties may file rebuttal briefs, limited to issues raised in the case 
briefs. See 19 CFR 351.309(d). The Department will consider rebuttal 
briefs filed not later than five days after the time limit for filing 
case briefs. Parties who submit arguments are requested to submit with 
each argument a statement of the issue, a brief summary of the 
argument, and a table of authorities cited. Further, we request that 
parties submitting written comments provide the Department with a 
diskette containing an electronic copy of the public version of such 
comments.
    We intend to issue the final results of this administrative review, 
including the results of our analysis of issues raised in the written 
comments, within 120 days of publication of these preliminary results 
in the Federal Register.

Assessment Rates

    The Department shall determine, and CBP shall assess, antidumping 
duties on all appropriate entries. Because we are relying on total AFA 
to establish AVISMA's dumping margin, we will instruct CBP to apply a 
dumping margin of 43.58 percent to all entries of subject merchandise 
during the POR that was produced and/or exported by AVISMA.
    The Department intends to issue instructions to CBP 15 days after 
the publication of the final results of review.

Cash-Deposit Requirements

    If these preliminary results are adopted in the final results of 
review, the following deposit requirements will be effective upon 
completion of the final results of this administrative review for all 
shipments of the subject merchandise entered, or withdrawn from 
warehouse, for consumption on or after the publication of the final 
results of this administrative review, as provided in section 751(a)(1) 
of the Act: (1) The cash-deposit rate for AVISMA will be the rate 
established in the final results of this review; (2) for previously 
reviewed or investigated companies not covered in this review, the 
cash-deposit rate will continue to be the company-specific rate 
published for the most recent period; (3) if the exporter is not a firm 
covered in this review, a prior review, or the less-than-fair-value 
(LTFV) investigation but the manufacturer is, the cash-deposit rate 
will be the rate established for the most recent period for the 
manufacturer of the subject merchandise; (4) if neither the exporter 
nor the manufacturer is a firm covered in this or any previous segment 
of the proceeding, the cash-deposit rate will continue to be the all-
others rate established in the LTFV investigation which is 21.01 
percent. See Antidumping Duty Order. These cash-deposit requirements, 
when imposed, shall remain in effect until further notice.

Notification to Importers

    This notice serves as a preliminary reminder to importers of their 
responsibility under 19 CFR 351.402(f)(2) to file a certificate 
regarding the reimbursement of antidumping duties prior to liquidation 
of the relevant entries during this review period. Failure to comply 
with this requirement could result in the Secretary's presumption that 
reimbursement of antidumping duties occurred and the subsequent 
assessment of double antidumping duties.
    The preliminary results of administrative review and this notice 
are issued and published in accordance with sections 751(a)(1) and 
777(i)(1) of the Act.

    Dated: March 31, 2009.
Ronald K. Lorentzen,
Acting Assistant Secretary for Import Administration.
[FR Doc. E9-7690 Filed 4-3-09; 8:45 am]
BILLING CODE 3510-DS-P