Silicon Metal from Brazil: Notice of Court Decision and Suspension of Liquidation

DEPARTMENT OF COMMERCE

International Trade Administration

[A-351-806]

Silicon Metal from Brazil: Notice of Court Decision and Suspension of Liquidation

AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

SUMMARY:

On August 26, 2005, in

Elkem Metals Company and Globe Metallurgical Inc. v. United States

, Slip Op. 05-109 (

Elkem Metals III

), the Court of International Trade (CIT) affirmed the Final Results of Redetermination Pursuant to Remand (

Remand Results II

) released by the Department of Commerce (the Department), on March 16, 2005. Consistent with the decision of the U.S. Court of Appeals for the Federal Circuit (CAFC) in

Timken Co. v. United States

, 893 F.2d 337 (Fed. Cir. 1990) (

Timken

), the Department will continue to order the suspension of liquidation of the subject merchandise, where appropriate, until there is a “conclusive” decision in this case. If the case is not appealed, or if it is affirmed on appeal, the Department will instruct U.S. Customs and Border Protection (CBP) to liquidate all relevant entries from Rima Industrial, S.A. (Rima), as appropriate.

EFFECTIVE DATE:

September 20, 2005.

FOR FURTHER INFORMATION CONTACT:

Maisha Cryor, AD/CVD Enforcement, Office 4, Import Administration, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue, NW, Washington, DC 20230, telephone 202-482-5831, fax 202-482-5105.

SUPPLEMENTARY INFORMATION:

Background

On February 12, 2002, the Department published in the

Federal Register

a notice of final results of the antidumping duty administrative review on silicon metal from Brazil.

See Silicon Metal From Brazil: Final Results of Antidumping Duty Administrative Review

, 67 FR 6488 (February 12, 2002) (

Final Results

). Following publication of the Final Results, Elkem Metals Company and Globe Metallurgical Inc. (collectively petitioners), filed a lawsuit with the CIT challenging the Department's findings in the Final Results, regarding the calculation of Rima's constructed value (CV). In

Elkem Metals Company and Globe Metallurgical Inc. v. United States

, No. 02-00232, (CIT February 25, 2004) (

Elkem Metals I

), the CIT remanded this matter to the Department for it to recalculate Rima's CV to include certain value-added taxes (VAT). In its Final Results of Redetermination Pursuant to Court Remand (

Remand Results I

), filed on June 8, 2004, in response to

Elkem Metals I

, the Department determined that such VAT were not incurred by Rima and therefore did not constitute a material cost for purposes of calculating CV. Consequently, in

Remand Results I

, the Department found that no adjustment was necessary to Rima's CV. In

Elkem Metals Company and Globe Metallurgical Inc. v. United States

, 350 F. Supp 2d 1270 (CIT 2004) (

Elkem Metals II

), the CIT once again instructed the Department to include VAT paid by Rima in the re-calculation of CV and to make any necessary adjustments to the dumping margin.

The Draft Results of Redetermination Pursuant to Court Remand (

Draft Remand Results II

) were released to parties on January 24, 2005. The Department received comments from interested parties on the

Draft Remand Results II

on January 24, 2005, and rebuttal comments on February 4, 2005. On March 16, 2005, the Department responded to the CIT's Order of Remand by filing the

Remand Results II

. In

Remand Results II

, pursuant to the CIT's order, the Department included VAT paid by Rima in the re-calculation of CV.

As a result of the remand determination, the antidumping duty rate for Rima was increased from 0.35 percent to 0.48 percent. The CIT did not receive comments from either petitioners or Rima.

On August 26, 2005, the CIT affirmed the Department's findings in

Remand Results II

. Specifically, the CIT upheld the Department's inclusion of VAT in Rima's CV. See

Elkem Metals III.

.

The only revision made to the

Final Results

was the inclusion of VAT in the calculation of Rima's CV, as noted above. This revision resulted in a change in Rima's margin. However, Rima continues to have a

de minimis

margin, as it had in the

Final Results

.

Suspension of Liquidation

The CAFC, in

Timken

, held that the Department must publish notice of a decision of the CIT or the CAFC which is not “in harmony” with the Department's final determination or results. Publication of this notice fulfills that obligation. The CAFC also held that the Department must suspend liquidation of the subject merchandise until there is a “conclusive” decision in the case. Therefore, pursuant to

Timken

, the Department must continue to suspend liquidation pending the expiration of the period to appeal the CIT's August 26, 2005, decision, or, if that decision is appealed, pending a final decision by the CAFC. The Department will instruct CBP to revise cash deposit rates, as appropriate, and to liquidate relevant entries covering the subject merchandise effective September 20, 2005, in the event that the CIT's ruling is not appealed, or if appealed and upheld by the CAFC.

Dated: September 14, 2005.

Joseph A. Spetrini,

Acting Assistant Secretary for Import Administration.

[FR Doc. 05-18713 Filed 9-19-05; 8:45 am]

BILLING CODE 3510-DS-S