Silicon Metal From the Russian Federation; Notice of Amended Final Determination Pursuant to Court Decision

AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

EFFECTIVE DATE:

(February 16, 2006

SUMMARY:

On November 28, 2005, the United States Court of International Trade (“CIT”) issued an order affirming the Department of Commerce's (“the Department”) Second Remand Results. See Final Results of Redetermination Pursuant to Court Remand, Globe Metallurgical, Inc. v. United States, Consol. Ct. No. 03-00202 (October 21, 2005) (available at http://ia.ita.doc.gov) (“Second Remand Results”); see also Globe Metallurgical, Inc. v. United States, Slip Op. 05-150, 2005 Ct. Intl. Trade LEXIS 160 (CIT November 28, 2005) (affirming the Second Remand Results in their entirety) (“Globe Metallurgical III”). In the First Remand Results, the Department recalculated the antidumping margins for Bratsk Aluminum Smelter and Rual Trade Limited (collectively, “Bratsk”) and ZAO Kremny and SUAL-Kremny-Ural Ltd. (“SKU”) (collectively, “Kremny”) to value the respondents' usage of recycled silicon metal sized zero to five millimeters. See Final Results of Redetermination Pursuant to Court Remand, Globe Metallurgical, Inc. v. United States, Consol. Ct. No. 03-00202 (January 5, 2005) (available at http://ia.ita.doc.gov) (“First Remand Results”). In the Second Remand Results, the Department recalculated the adverse facts available (“AFA”) portion of Kremny's antidumping duty margin using the revised antidumping duty margin for Bratsk calculated in the First Remand Results. Because all litigation in this matter has now concluded, the Department is issuing its amended final determination in accordance with the CIT's decision.

FOR FURTHER INFORMATION CONTACT:

Carrie Blozy, AD/CVD Operations, Office 9, Import Administration, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-5403.

SUPPLEMENTARY INFORMATION:

Background

On February 11, 2003, the Department published its Amended Final Determination, covering the period of investigation (“POI”) from July 1, 2001, through December 31, 2001. See Notice of Final Determination of Sales at Less Than Fair Value: Silicon Metal From the Russian Federation, 68 FR 6885 (February 11, 2003) (“Final Determination”), as amended by Notice of Amended Final Determination of Sales at Less Than Fair Value: Silicon Metal From the Russian Federation, 68 FR 12037 (March 13, 2003) (“Amended Final Determination”). Petitioners and Bratsk contested various aspects of the Amended Final Determination.

The Court remanded to the Department two aspects of its Amended Final Determination for reconsideration: (1) with respect to the Department's decision not to use Russian values to value the factors of production and other expenses, the Court ordered the Department to either use Russian post-non-market economy (“NME”) values or explain why the market economy Russian values are not the best available information; and (2) with respect to the Department's treatment of silicon metal fines, the Court granted the Department's request to explain its exclusion of recycled silicon metal fines from the factor of production cost analysis. See Globe Metallurgical, Inc. v. United States, 350 F. Supp. 2d 1148 (CIT September 24, 2004) (“Globe Metallurgical I”). Subsequent to the Court's remand, Bratsk voluntarily dismissed its challenge of the Department's rejection of Russian post-NME values. Therefore, this issue became moot. In the Department's First Remand Results, the Department recalculated Bratsk's and Kremny's margins to value the usage of recycled silicon metal sized zero to five millimeters.

On July 27, 2005, the CIT issued its opinion on the Department's First Remand Results. See Globe Metallurgical, Inc. v. United States, Slip Op. 05-90, 2005 Ct. Intl. Trade LEXIS 98 (CIT July 27, 2005) (“Globe Metallurgical II”). The CIT affirmed the Department's determination to include recycled silicon metal fines sized zero to five millimeters in each producer's factors of production cost analysis and affirmed the calculation of Bratsk's antidumping duty margin. However, the Court further remanded the case back to the Department and ordered the Department to either recalculate the AFA portion of Kremny's antidumping duty margin using the revised antidumping duty margin for Bratsk calculated in the Final Remand Results or explain the use of the Bratsk margin from the Amended Final Determination.

The Department recalculated Kremny's antidumping duty margin using the antidumping duty margin for Bratsk calculated in the First Remand Results. On October 21, 2005, the Department signed its Second Remand Results. On November 28, 2005, the CIT affirmed the Department's Second Remand Results in its entirety. See Globe Metallurgical III. On December 14, 2005, consistent with the decision of the United States Court of Appeals for the Federal Circuit in Timken Co. v. United States, 893 F. 2d 337 (Fed. Cir. 1990), the Department notified the public that the CIT's decision was “not in harmony” with the Final Determination. See Notice of Decision of the Court of International Trade; Silicon Metal from the Russian Federation, 70 FR 73989 (December 14, 2005) (“Timken Notice”). No party has appealed the CIT's decision. Because there is now a final and conclusive decision in the court proceeding, we are issuing an amended final determination to reflect the results of the second remand determination. The recalculated margins are as follows:

Cash Deposit Requirements

The Department will direct the United States Customs and Border Protection to require the cash deposit rates listed above for the subject merchandise, effective as of December 14, 2005, the publication date of the Timken Notice. Because the Russia-wide rate was not challenged in this case, it has not changed and remains at 79.42 percent. These cash deposit requirements, when imposed, shall remain in effect until publication of the final results of an administrative review of this order.

This notice is issued and published in accordance with sections 735(d) and 777(i) of the Tariff Act of 1930, as amended.