Antidumping Duty Investigation; Silicon Metal from Brazil: Amended Final Determination in Accordance with Court Decision.

AGENCY:

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

ACTION:

Notice of Amended Final Determination of Antidumping Duty Investigation in Accordance with Court Decision.

SUMMARY:

On February 14, 2001, the United States Court of International Trade (“CIT”) sustained the final remand determination made by the Department of Commerce (“the Department”) pursuant to the Court's remand of the final determination of sales at less than fair value of silicon metal from Brazil. See Camargo Correa Metals, S.A., v. United States, Ct. No. 91-09-00641, Slip Op. 01-15 (Ct. Int'l Trade February 14, 2001). As there is now a final and conclusive court decision in this case, we are amending our final determination of sales at less than fair value.

EFFECTIVE DATE:

September 30, 2002.

FOR FURTHER INFORMATION CONTACT:

Marlene Hewitt, Antidumping/Countervailing Duty Enforcement, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, N.W.,Washington DC 20230; telephone (202) 482-1385.

SUPPLEMENTARY INFORMATION:

Background

On June 12, 1991, the Department of Commerce (“the Department”) published its final Determination of Sales at Less Than Fair Value: Silicon Metal from Brazil. In its final determination, the Department also found that critical circumstances existed with respect to exports from Brazil by Companhia Brasileria Carbureto de Calcio (“CBCC”). See Final Determination of Sales at Less Than Fair Value: Silicon Metal from Brazil, 59 FR 26977 (June 12, 1991) (“Final Determination”).

On July 24, 1991, the International Trade Commission (“ITC”) notified the Department that such imports materially injure an United States industry. The ITC also notified the Department that critical circumstances do not exist with respect to any imports from Brazil.

On July 31, 1991, the Department issued its antidumping duty order on Silicon Metal from Brazil for two specific Brazilian manufacturers/exporters, CBCC, and Camargo Correa Metais, S.A. (“CCM”), and for all other Brazilian manufacturers/exporters (“all others”). See Antidumping Duty Order: Silicon Metal from Brazil, 56 FR 36135 (July 31, 1991).

CCM challenged certain aspects of the Department's Final Determination at the CIT.

On August 13, 1993, the CIT remanded the Department's Final Determination on the following issues: (1) to re-examine the circumstances of sale adjustment for letter of credit sales and explain why such sales constitute a bona fide difference in the circumstances of domestic sales; (2) to explain in greater detail the allocation of annual GS&A expenses to the merchandise produced during the period of investigation, and recalculate said allocation if it systematically overstates GS&A expenses; and (3) to announce a method and rationale for complying with 19 U.S.C. §1677a (d)(1)(C) and to calculate an amount equal to the sum of the amounts incurred and realized for the exporter in this review, that avoids double counting but accounts for the economic realty of the Brazilian value-added tax “imposto sobre a circulacao de mercadorias e servicos” (“ICMS”) paid on inputs to export production, and recovered from taxes otherwise due the Brazilian government which was not a cost of producing silicon metal for export in Brazil. See Camargo Correa Metals, S.A., v. United States, Ct. No. 91-09-00641, Slip Op. 93-163 (Ct. Int'l Trade August 13, 1993).

On December 13, 1993, the Department filed its redetermination pursuant to court remand. The Department recalculated the constructed value, excluding the ICMS paid by CBCC and CCM, pursuant to the CIT's instructions. See Silicon Metal from Brazil: Final Results of Redetermination Pursuant to Court Remand (December 12, 1993).

On April 29, 1994, the CIT affirmed the Department's redetermination on remand, ruling that since all other issues have been decided, the case was dismissed. See Camargo Correa Metals, S.A., v. United States, Ct. No. 91-09-00641 (91-09-00645), Slip Op. 94-68 (Ct. Int'l Trade April 29, 1994).

American producers of silicon metal, American Alloys, Inc., Globe Metallurgical, Inc., and American Silicon Technologies (collectively “domestic producers” or “appellants”), appealed the CIT's judgment to the United States Court of Appeals for the Federal Circuit (“CAFC”). The CAFC vacated the judgment of the CIT and remanded with directions to draft a judgment that complied with the relevant statute requiring findings of fact and conclusions of law or an opinion stating the facts in support of the judgment. See Camargo Correa Metals, S.A., v. United States, 52 F.3d 1040 (Fed. Cir. 1995).

The Department sought a rehearing before the CIT to have its original methodology reinstated. The Department argued, contrary to the CIT's first ruling, that the ICMS is not remitted or refunded upon export, and is therefore a cost. The CIT held that it “has found ICMS credit to be indistinguishable from a remittance or refund.” See Camargo Correa Metals, S.A., v.United States, Ct. No. 91-09-00641, Slip Op. 97-159 (Ct. Int'l Trade November 25, 1997). Pursuant to the CAFC's directions, the CIT issued its opinion and remanded the case to the Department a second time with instructions to 1) consider the Brazilian ICMS credit to be a rebate or remittance for purposes of 19 U.S.C. §1677a(d)(1)(C) (1988); 2) propose a method to eliminate or account for the double counting problem between the same statutes; and 3) recalculate the dumping margin for CBCC. In the same opinion, the CIT affirmed the Department's Redetermination in all other respects. See Camargo Correa Metals, S.A., v. United States, Ct. No. 91-09-00641, Slip Op. 97-159 (Ct. Int'l Trade November 25, 1997).

On March 25, 1998, the Department submitted its remand results. The Department excluded CBCC's ICMS liability from its constructed value calculations, consistent with the Department's findings in its 1993 Final Remand Results. See Silicon Metal from Brazil: Results of Redetermination Pursuant to Court Remand (March 25, 1998).

On November 5, 1998, the CIT affirmed the Department's final result of redetermination on remand. See Camargo Correa Metals, S.A., v. United States, Ct. No. 91-09-00641, Slip Op. 98-152 (Ct. Int'l Trade November 5, 1998).

The United States and domestic producers, appealed the CIT's judgment to the CAFC. The CAFC reversed the CIT's judgment and remanded the case to the CIT to include the ICMS in the constructed value calculation. See Camargo Correa Metals, S.A., v. United States, 200 F.3d 771 (Fed. Cir. 1999).

On November 21, 2000, the Department issued its final results of redetermination pursuant to court remand. See Silicon Metal from Brazil: Final Results of Redetermination Pursuant to Court Remand (November 21, 2000).

On February 14, 2001, the CIT sustained the Department's redetermination on remand. See Camargo Correa Metals, S.A., v. United States, Ct. No. 91-09-00641, Slip Op. 01-15 (Ct. Int'l Trade February 14, 2001).

Litigation in this case is final and conclusive. We are therefore amending our final determination of sales at less than fair value.

The weighted-average margins remain the same as in the antidumping duty order and are as follows:

CCM's and CBCC's current cash deposit rates are based upon an administrative review conducted subsequent to the investigation segment of the proceeding. Therefore, this amended final determination does not affect the cash deposit rates for CCM and CBCC currently in effect, which will continue to be based on the margins found to exist in the most recently completed review.

This notice is published in accordance with §§ 735(d) and 777(i) of the Tariff Act (19 U.S.C. §§ 1675(a)(1) and 1677f(i)).