[Federal Register Volume 76, Number 48 (Friday, March 11, 2011)]
[Notices]
[Pages 13355-13356]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-5691]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-821-819]


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: (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 (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.
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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 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

[[Page 13356]]

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.
[FR Doc. 2011-5691 Filed 3-10-11; 8:45 am]
BILLING CODE 3510-DS-P