64 FR 46182 August 24, 1999 


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