[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