Pure Magnesium From Ukraine: Notice of Revocation of the Antidumping Duty Order

DEPARTMENT OF COMMERCE

International Trade Administration

[A-823-806]

Pure Magnesium From Ukraine: Notice of Revocation of the

Antidumping Duty Order

AGENCY: Import Administration, International Trade Administration,

Department of Commerce.

ACTION: Notice of revocation of antidumping duty order.

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SUMMARY: The Department of Commerce is notifying the public of its

revocation of the antidumping duty order on pure magnesium from Ukraine

following court litigation concluding that the U.S. industry was not

being materially injured, or being threatened with material injury, by

reason of imports of the subject merchandise.

EFFECTIVE DATE: August 24, 1999.

FOR FURTHER INFORMATION CONTACT: Brian Smith or Brian Ledgerwood,

Import Administration, International Trade Administration, U.S.

Department of Commerce, 14th Street and Constitution Avenue, NW,

Washington, DC 20230; telephone: (202) 482-1766 or (202) 482-3836,

respectively.

The Applicable Statute

Unless otherwise indicated, all citations to the statute are

references to the provisions effective January 1, 1995, the effective

date of the amendments made to the Tariff Act of 1930 (``the Act'') by

the Uruguay Round Agreements Act (``URAA''). In addition, unless

otherwise indicated, all references are made to the Department of

Commerce's (``the Department's'') regulations at 19 CFR Part 351

(1998).

SUPPLEMENTARY INFORMATION:

Scope of the Order

The product covered by this order is pure primary magnesium

regardless of chemistry, form or size, unless expressly excluded from

the scope of these orders. Primary magnesium is a metal or alloy

containing by weight primarily the element magnesium and produced by

decomposing raw materials into magnesium metal. Pure primary magnesium

is used primarily as a chemical in the aluminum alloying,

desulfurization, and chemical reduction industries. In addition, pure

primary magnesium is used as an input in producing magnesium alloy.

Pure primary magnesium encompasses:

(1) Products that contain at least 99.95% primary magnesium, by

weight (generally referred to as ``ultra-pure'' magnesium);

(2) Products containing less than 99.95% but not less than 99.8%

primary magnesium, by weight (generally referred to as ``pure''

magnesium); and

(3) Products (generally referred to as ``off-specification pure''

magnesium) that contain 50% or greater, but less than 99.8% primary

magnesium, by weight, and that do not conform to ASTM specifications

for alloy magnesium.

``Off-specification pure'' magnesium is pure primary magnesium

containing magnesium scrap, secondary magnesium, oxidized magnesium or

impurities (whether or not intentionally added) that cause the primary

magnesium content to fall below 99.8% by weight. It generally does not

contain, individually or in combination, 1.5% or more, by weight, of

the following alloying elements: aluminum, manganese, zinc, silicon,

thorium, zirconium and rare earths.

Excluded from the scope of this order are alloy primary magnesium,

primary magnesium anodes, granular primary magnesium (including

turnings and powder), and secondary magnesium.

Granular magnesium, turnings, and powder are classifiable under

Harmonized Tariff Schedule of the United States (HTSUS) subheading

8104.30.00. Magnesium granules and turnings (also referred to as chips)

are produced by grinding and/or crushing primary magnesium and thus

have the same chemistry as primary magnesium. Although not susceptible

to precise measurement because of their irregular shapes, turnings or

chips are typically produced in coarse shapes and have a maximum length

of less than 1 inch. Although sometimes produced in larger sizes,

granules are more regularly shaped than turnings or chips, and have a

typical size of 2 mm in diameter or smaller.

Powders are also produced from grinding and/or crushing primary

magnesium and have the same chemistry as primary magnesium, but are

even smaller than granules or turnings. Powders are defined by the

Section Notes to Section XV, the section of the HTSUS in which

subheading 8104.30.00 appears, as products of which 90 percent or more

by weight will pass through a sieve having a mesh aperture of 1 mm.

(See HTSUS, Section

[[Page 46183]]

XV, Base Metals and Articles of Base Metals, Note 6(b).) Accordingly,

the exclusion of magnesium turnings, granules and powder from the scope

includes products having a maximum physical dimension (i.e., length or

diameter) of 1 inch or less.

The product subject to this order is classifiable under subheadings

8104.11.00, 8104.19.00 and 8104.20.00 of the HTSUS. Although the HTSUS

subheadings are provided for convenience and customs purposes, our

written description of the scope is dispositive.

Background

On March 30, 1995, the Department published notice of its final

affirmative less-than-fair-value determination covering imports of pure

magnesium from Ukraine (see Final Determination of Sales at Less Than

Fair Value: Pure Magnesium from Ukraine, 60 FR 16432). On May 8, 1995,

the International Trade Commission (``ITC'') made its final affirmative

determination that a U.S. industry was being materially injured by

reason of imports of pure magnesium from Ukraine as well as China and

Russia (see Magnesium from China, Russia, and Ukraine, 60 FR 26456, May

17, 1995). On May 12, 1995, the Department published an antidumping

order covering imports of pure magnesium from China, Russia and Ukraine

(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'') filed a lawsuit with the U.S. Court of

International Trade (``CIT'') challenging the ITC's final affirmative

determination of material injury with regard to the Ukrainian imports.

In its first decision, the CIT affirmed the ITC's final affirmative

determination of material injury with regard to the Ukrainian imports.

However, the U.S. Court of Appeals for the Federal Circuit (``Federal

Court'') subsequently directed the CIT to vacate its decision affirming

the ITC's final affirmative determination of material injury with

regard to the Ukrainian imports and to remand the case to the ITC. See

Gerald Metals, Inc. v. United States, 132 F.3d 716 (Fed. Cir. 1997). On

remand, the ITC determined that the U.S. industry was not being

materially injured by reason of the Ukrainian imports and that there

was no threat of material injury. The issue of material retardation of

the establishment of a U.S. industry was not raised before the ITC. The

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

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

98-148 (CIT).

In the Notice of Court Decision and Suspension of Liquidation (63

FR 67854, December 9, 1998) issued following the CIT's decision

affirming the ITC's remand determination, the Department indicated that

it would continue to order the suspension of liquidation of imports of

pure magnesium from Ukraine until there is a ``conclusive'' decision in

this case and that, if the case was not appealed, or if it was affirmed

on appeal, the Department would revoke the antidumping order covering

imports of pure magnesium from Ukraine.

Magnesium Corporation of America, International Union of Operating

Engineers, Local 564, and United Steelworkers of America, Local 8319

(``appellant'') later appealed the CIT's decision regarding the

Ukrainian imports to the Federal Circuit. On April 16, 1999, however,

the Federal Circuit dismissed this appeal because the appellant failed

to file its brief within the specified deadline. See Gerald Metals,

Inc. v. United States, Court No. 99-1166, Order issued April 16, 1999

(Fed. Cir.).

As a result, the CIT's decision affirming the ITC's remand

determination is now the ``conclusive'' decision in this case.

Revocation of Antidumping Duty Order

Because the ITC found no material injury or threat of material

injury in its remand determination, and the CIT's decision affirming

the ITC's remand determination is now the conclusive decision in this

case, the Department is revoking the antidumping duty order on pure

magnesium from Ukraine. This revocation applies to all entries of pure

magnesium from the Ukraine entered, or withdrawn from warehouse, for

consumption on or after October 30, 1998, which was ten days after the

final CIT decision not in harmony with the original agency

determination. The Department will instruct the Customs Service to

proceed with liquidation of all entries of this merchandise entered, or

withdrawn from warehouse, for consumption on or after October 30, 1998,

without regard to antidumping duties, and to refund any estimated

antidumping duties collected with respect to those entries. This notice

is in accordance with 19 CFR 351.222.

Dated: August 17, 1999.

Bernard Carreau,

Acting Assistant Secretary for Import Administration.

[FR Doc. 99-21953 Filed 8-23-99; 8:45 am]

BILLING CODE 3510-DS-P