Pure Magnesium From Ukraine: Notice of Court Decision and Suspension of Liquidation

DEPARTMENT OF COMMERCE

International Trade Administration

[A-823-806]

Pure Magnesium From Ukraine: Notice of Court Decision and

Suspension of Liquidation

AGENCY: Import Administration, International Trade Administration,

Department of Commerce.

ACTION: Notice.

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SUMMARY: On October 20, 1998, in Gerald Metals, Inc. v. United States,

Court No. 95-06-00782, Slip Op. 98-148 (CIT), a lawsuit challenging the

final affirmative determination of the U.S. International Trade

Commission (the ``Commission'') that less-than-fair-value (``LTFV'')

imports of pure magnesium from Ukraine were causing material injury to

the domestic industry, the U.S. Court of International Trade (``CIT'')

affirmed the Commission's remand determination, which found no material

injury as well as no threat to material injury, and entered a judgment

order dismissing the case. The issue of material retardation of the

establishment of a U.S. industry was never raised before the

Commission. Consistent with the decision of the U.S. Court of Appeals

for the Federal Circuit (``Federal Circuit'') in Timken Co. v. United

States, 893 F.2d 337 (Fed. Cir. 1990) (``Timken''), the U.S. Department

of Commerce (the ``Department'') will continue to order the suspension

of liquidation of the subject merchandise until there is a

``conclusive'' decision in this case. If the case is not appealed, or

[[Page 67855]]

if it is affirmed on appeal, the Department will revoke the antidumping

order covering the subject merchandise.

EFFECTIVE DATE: December 9, 1998.

FOR FURTHER INFORMATION CONTACT: Brian Smith or Everett Kelly, Import

Administration, International Trade Administration, U.S. Department of

Commerce, 14th Street and Constitution Avenue, N.W., Washington, D.C.

20230; telephone: (202) 482-1766 or (202) 482-4194, respectively.

SUPPLEMENTARY INFORMATION:

Background

The Department published notice of its final affirmative LTFV

determination covering the subject merchandise, i.e., imports of pure

magnesium from Ukraine, on March 30, 1995, Final Affirmative

Determination of Sales at Less Than Fair Value; Pure Magnesium from

Ukraine, 60 FR 16432, and the Commission subsequently made its final

affirmative determination that a U.S. industry was being materially

injured by reason of imports of the subject merchandise. See Magnesium

from China, Russia, and Ukraine, 60 FR 26456 (May 17, 1995). The

Department published an antidumping order covering the subject

merchandise on May 12, 1995. See Antidumping Duty Orders; Pure

Magnesium from the People's Republic of China, the Russian Federation

and Ukraine, 60 FR 25691.

Following publication of the antidumping duty order, Gerald Metals,

Inc. (``Gerald Metals'') an interested party in this case, filed a

lawsuit with the CIT challenging the Commission's final affirmative

determination of material injury. In its first decision, the CIT

affirmed the Commission's final affirmative determination of material

injury. However, the Federal Circuit subsequently directed the CIT to

vacate its decision to affirm the Commission's final affirmative

determination of material injury and to remand the case to the

Commission. See Gerald Metals, Inc. v. United States, 132 F.3d 716

(Fed. Cir. 1997). On remand, the Commission determined that the U.S.

industry was not being materially injured, and was not threatened with

material injury, by reason of imports of the subject merchandise. The

CIT affirmed the Commission's remand determination on October 20, 1998.

See Gerald Metals, Inc. v. United States, Court No. 95-06-00782, Slip

Op. 98-148 (CIT).

Suspension of Liquidation

In its decision in Timken, the Federal Circuit held that the

Department must publish notice of a decision of the CIT or the Federal

Circuit which is not ``in harmony'' with the Department's or the

Commission's determination. Publication of this notice fulfills that

obligation. The Federal Circuit 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 suspend liquidation pending the expiration of the

period to appeal the CIT's October 20, 1998 decision or, if that

decision is appealed, pending a final decision by the Federal Circuit.

However, because entries of pure magnesium and alloy magnesium from

Ukraine already are being suspended pursuant to the antidumping duty

orders in effect, the Department need not order the Customs Service to

suspend liquidation. Furthermore, consistent with Timken, the

Department will revoke the antidumping duty order covering the subject

merchandise in the event that the CIT's ruling is not appealed or the

Federal Circuit issues a final decision affirming the CIT's ruling.

Dated: December 1, 1998.

Robert S. LaRussa,

Assistant Secretary for Import Administration.

[FR Doc. 98-32722 Filed 12-8-98; 8:45 am]

BILLING CODE 3510-DS-P