Magnesium Metal From the Russian Federation: Preliminary Results of Antidumping Duty Administrative Review and Intent To Rescind in Part, 15435-15438 [E9-7690]
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Federal Register / Vol. 74, No. 64 / Monday, April 6, 2009 / Notices
DEPARTMENT OF COMMERCE
International Trade Administration
[A–201–802]
Gray Portland Cement and Clinker
From Mexico: Final Results of
Changed-Circumstances Review,
Revocation of Antidumping Duty
Order, and Termination of Five-Year
(Sunset) Review of Antidumping Duty
Order
AGENCY: Import Administration,
International Trade Administration,
Department of Commerce.
SUMMARY: On February 17, 2009, the
Department of Commerce (the
Department) published a notice of
initiation of changed-circumstances
review, preliminary results of review,
intent to revoke the antidumping duty
order, and intent to terminate the fiveyear (sunset) review of the antidumping
duty order on gray portland cement and
clinker from Mexico.
We received comments from various
interested parties supporting our
preliminary results of review,
revocation of the order, and termination
of the sunset review. After consideration
of those comments we are revoking the
order and terminating the sunset review
of the order.
DATES: Effective Date: April 1, 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) 482–3477 and (202)
482–1690, respectively.
SUPPLEMENTARY INFORMATION:
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Background
On March 6, 2006, the Office of the
United States Trade Representative,
Secretaria de Economia of the United
Mexican States, and the Department
entered into an Agreement on Trade in
Cement. See Gray Portland Cement and
Clinker From Mexico: Agreement
Between the Office of the United States
Trade Representative, The United States
Department of Commerce and
Secretaria de Economia of Mexico on
Trade in Cement, 71 FR 13082 (March
14, 2006) (Agreement). Pursuant to the
Agreement, the domestic industry,
represented by the Southern Tier
Cement Committee and its members,
Capitol Aggregates, Ltd., and Holcim
(U.S.) Inc., submitted letters stating that
they have ‘‘no interest’’ in maintaining
the order after the expiration of the
Agreement.
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On February 17, 2009, the Department
of Commerce published the notice of
initiation of changed-circumstances
review, preliminary results of review,
intent to revoke the antidumping duty
order, and intent to terminate the fiveyear (sunset) review of antidumping
duty order. See Gray Portland Cement
and Clinker From Mexico: Initiation of
Changed-Circumstances Review,
Preliminary Results of Review, Intent to
Revoke Antidumping Duty Order, and
Intent to Terminate Five-year (Sunset)
Review of Antidumping Duty Order, 74
FR 7393 (February 17, 2009) (Intent to
Revoke).
We received comments from various
interested parties supporting our
preliminary results of review,
revocation of the order, and termination
of the sunset review.
Final Results of Review
We determine that all of the terms of
the Agreement (see Intent to Revoke)
have been satisfied.
Revocation of Order
Because we determine that the terms
of the Agreement and, therefore, the
terms of the ‘‘no interest’’ letters from
producers accounting for substantially
all of the production of the domestic
like product have been met, we hereby
revoke the antidumping duty order on
gray portland cement and clinker from
Mexico in its entirety, effective April 1,
2009.
Termination of Sunset Review
Because we determine that all the
terms of the Agreement have been
fulfilled and in accordance with letters
filed by interested parties that are
attached in Appendix 12 of the
Agreement requesting the termination of
the sunset review on March 31, 2009,
we hereby terminate the suspended
sunset review.
Suspension of Liquidation
We will instruct U.S. Customs and
Border Protection (CBP) to discontinue
the suspension of liquidation and to
cease the collection of cash deposits on
entries of subject merchandise entered,
or withdrawn from warehouse, for
consumption on or after April 1, 2009.
In addition, we will instruct CBP to
liquidate all entries made on or after
April 1, 2009, without regard to
antidumping duties.
This notice is published in
accordance with sections 751(d)(1) and
777(i) of the Tariff Act of 1930, as
amended, and 19 CFR 351.221(b)(5).
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15435
Dated: March 31, 2009.
Ronald K. Lorentzen,
Acting Assistant Secretary for Import
Administration.
[FR Doc. E9–7692 Filed 4–3–09; 8:45 am]
BILLING CODE 3510–DS–P
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
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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,
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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 magnesiumbased 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
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
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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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 businessproprietary information (BPI) from the
administrative record. We granted
AVISMA’s request and have removed all
of its BPI from the administrative
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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
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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
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15437
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.
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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.
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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
19:48 Apr 03, 2009
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
DEPARTMENT OF COMMERCE
International Trade Administration
Cash-Deposit Requirements
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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 companyspecific 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 cashdeposit rate will continue to be the allothers 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.
Jkt 217001
[A–351–840]
Certain Orange Juice From Brazil:
Preliminary Results of Antidumping
Duty Administrative Review
AGENCY: Import Administration,
International Trade Administration,
Department of Commerce.
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SUMMARY: In response to a request by the
petitioners and two producers/exporters
of the subject merchandise, the
Department of Commerce (the
Department) is conducting an
administrative review of the
antidumping duty order on certain
orange juice (OJ) from Brazil with
respect to two producers/exporters of
the subject merchandise to the United
States. This is the second period of
review (POR), covering March 1, 2007,
through February 29, 2008.
We have preliminarily determined
that sales to the United States have not
been made below normal value (NV). If
these preliminary results are adopted in
the final results of this review, we will
instruct U.S. Customs and Border
Protection (CBP) to assess antidumping
duties on all appropriate entries.
DATES: Effective Date: April 6, 2009.
FOR FURTHER INFORMATION CONTACT:
Elizabeth Eastwood or Miriam Eqab,
AD/CVD Operations, Office 2, Import
Administration, International Trade
Administration, U.S. Department of
Commerce, 14th Street and Constitution
Avenue, NW., Washington, DC 20230;
telephone: (202) 482–3874 or (202) 482–
3693, respectively.
SUPPLEMENTARY INFORMATION:
Background
In March 2006, the Department
published in the Federal Register an
antidumping duty order on certain
orange juice from Brazil. See
Antidumping Duty Order: Certain
Orange Juice from Brazil, 71 FR 12183
(Mar. 9, 2006) (OJ Order). Subsequently,
on March 3, 2008, the Department
published in the Federal Register a
notice of opportunity to request an
administrative review of the
antidumping duty order of certain
orange juice from Brazil for the period
March 1, 2007, through February 29,
2008. See Antidumping or
Countervailing Duty Order, Finding, or
Suspended Investigation; Opportunity
to Request Administrative Review, 73
FR 11389 (Mar. 3, 2008).
In accordance with 19 CFR
351.213(b)(2), in March 2008, the
Department received requests to
conduct an administrative review of the
antidumping duty order on OJ from
Brazil from two producers/exporters of
the subject merchandise, Fischer S.A.
Comercio, Industria, and Agricultura
(Fischer) and Sucocitrico Cutrale, S.A.
(Cutrale). In accordance with 19 CFR
351.213(b)(1), also in March 2008, the
petitioners (Florida Citrus Mutual, A.
Duda & Sons, Citrus World Inc., and
Southern Gardens Citrus Processing
Corporation), requested that the
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[Federal Register Volume 74, Number 64 (Monday, April 6, 2009)]
[Notices]
[Pages 15435-15438]
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[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.
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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
