E4-3528. Pure Magnesium From Canada; Notice of NAFTA Binational Panel's Final Decision, Amended Final Results of Full Sunset Review and Revocation of Antidumping Duty Order

AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

SUMMARY:

On November 19, 2004, the NAFTA Secretariat published in the Federal Register a notice of completion of panel review of the final remand redetermination made by the U.S. Department of Commerce concerning the full sunset review of the antidumping duty order on pure magnesium from Canada. See North American Free-Trade Agreement, Article 1904 NAFTA Panel Reviews; Completion of Panel Review, 69 FR 67703 (November 19, 2004). As there is now a final and conclusive decision in this case, we are amending the final results of the full sunset review and revoking the antidumping duty order on pure magnesium from Canada.

EFFECTIVE DATE:

August 1, 2000.

FOR FURTHER INFORMATION CONTACT:

Martha V. Douthit, Office of Policy, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Ave., NW., Washington, DC 20230; telephone: [phone].

SUPPLEMENTARY INFORMATION:

Scope of the Order

The product covered by this order is pure magnesium. Pure unwrought magnesium contains at least 99.8 percent magnesium by weight and is sold in various slab and ingot forms and sizes. Granular and secondary magnesium are excluded from the scope of this order. Pure magnesium is currently classified under subheading 8104.11.0000 of the Harmonized Tariff Schedule (“HTS”). The HTS item number is provided for convenience and for customs purposes. The written description remains dispositive.

Background

On August 2, 1999, the Department of Commerce (“the Department”) initiated a sunset review of the antidumping duty order on pure magnesium from Canada pursuant to section 751(c) of the Tariff Act of 1930, as amended (“the Act”). See Five-Year (“Sunset”) Reviews, 64 FR 41915 (August 2, 1999). On the basis of a notice of intent to participate filed on behalf of domestic interested parties and adequate substantive comments filed on behalf of domestic and respondent interested parties, the Department conducted a full sunset review. As a result of this review, on July 5, 2000, the Department, pursuant to sections 751(c) and 752 of the Act, determined that revocation of the antidumping duty order on pure magnesium from Canada is likely to lead to continuation or recurrence of dumping. See Pure Magnesium From Canada; Final Results of Full Sunset Review, 65 FR 41436 (July 5, 2000). Subsequent to the Department's Final Results, respondents filed a complaint before the NAFTA Panel challenging these results. On October 23, 2002, Norsk Hydro Canada, Inc. (“NHCI”) requested that the Department continue the suspension of liquidation for subject entries made on or after the effective date of the sunset review, pursuant to 516A(g)(5)(C) of the Act. The Department granted this request on January 28, 2003, and suspended liquidation effective August 1, 2000. See Letter from John Brinkmann to Gregory S. McCue (January 28, 2003).

On March 27, 2002, the NAFTA Panel issued an Order and Opinion. See Pure Magnesium from Canada, Secretariat File No. USA-CDA-00-1904-06, (“First Remand Order”). In the First Remand Order, the Panel instructed the Department to reconsider (1) the claim that “good cause” existed to consider “other price, cost market, or economic factors” in determining the likelihood that dumping would continue or recur; and (2) its decision to report the investigation rate as the margin of dumping likely to prevail if the order were revoked. Id. at 34. The Department responded to the First Remand Order on May 28, 2002, when the Department released final results of determination pursuant to NAFTA Panel remand of the sunset review of the antidumping duty order on pure magnesium from Canada (“First Remand”).

On October 15, 2002, the NAFTA Panel issued its second remand redetermination in the Canadian magnesium antidumping order sunset case, remanding to the Department its redetermination in the First Remand. See Decision of the Panel Concerning the Remand Determination by the Department of Commerce, Pure Magnesium From Canada, File USA-CDA-00-1904-07 (Oct. 15, 2002), at 3, (“Second Remand Order”). In the Second Remand Order, the Panel ordered the Department: (1) To consider other factors, such as the exchange rate, market share, below cost sales, and zero margins, in its determination of likelihood of dumping; (2) to reconsider the normal preference for reporting the investigation rate; and (3) to determine whether it was an appropriate case in which to supplement the record. Second Remand Order at 11-12. The Panel concluded that the parties had waived the right to raise the issue, for which they wanted to supplement the record, because the issue had not been raised before; nevertheless, the Panel instructed the Department to obtain the views of the parties and make a determination on reopening the record for this additional information.

Id. at 10-12. On January 28, 2003, the Department filed its second redetermination on remand with the NAFTA Secretariat (“Second Remand”). The Department decided that the other factors set forth by the parties were insufficient to warrant a negative likelihood determination, and it also determined it properly reported the investigation rate. Second Remand at 7-14, 15-16. The Department obtained the views of the parties and decided, based on 19 CFR 351.218(d)(4), not to reopen the record. Id. at 6.

On April 28, 2003, the NAFTA Panel remanded an affirmative determination by the Department with instructions to revoke the antidumping order on pure magnesium from Canada. Pure Magnesium from Canada, Decision of the Panel Concerning the Results of the Second Redetermination by the Department of Commerce, USA-CDA-00-1904-06 (April 28, 2003) (“Third Panel Order”). In its third decision, the Panel, disregarding its previous conclusion that the issue had been waived, rejected the Department's application of the deadline in 19 CFR 351.218(d)(4), even though the Panel did not find that the Department acted inconsistently with the rule. Third Panel Order, at 5. The Panel reviewed the Department's likelihood determination at length, evaluating the Department's factual conclusions in light of six findings of fact extrapolated by the Panel. Third Panel Order at 12-20. Based on its own factual findings and the non-record evidence that one company, NHCI, had switched its production focus from pure to alloy magnesium, the Panel concluded dumping would not recur if the order were revoked.

Id. at 20-21.

The Panel subsequently amended its order to require the Department to take action not inconsistent with its decision within 15 days. Order of the Panel (June 24, 2003). The Department issued notice that the panel decisions were not in harmony with the Department's original determination and continued suspension of liquidation of the subject merchandise, pending any ECC proceedings. Pure Magnesium from Canada: NAFTA Panel Decision, 68 FR 42004 (July 16, 2003). The Panel entered a Notice of Final Panel Action on August 25, 2003.

On September 24, 2003, pursuant to Article 1904.13 and Annex 1904.13 of the NAFTA, and Rules 37 through 39 of the Rules of Procedure for Article 1904 Extraordinary Challenge Committees (“ECC”), the Government of the United States timely requested formation of an ECC to review issues raised by the Panel's decisions. On October 5, 2004, the ECC found that the Panel manifestly exceeded its powers by failing to apply the correct standard of review and that such action materially affected the Panel's decision; however, it also found that the Panel's action did not threaten the integrity of the binational panel review process, and affirmed the Panel's decision. Pure Magnesium from Canada, Decision and Order of the Extraordinary Challenge Committee, No. ECC-2003-1904-01USA (October 5, 2004) at 11.

On November 19, 2004, the NAFTA Secretariat published in the Federal Register its Notice of Completion of Panel Review of the final remand determination made by the U.S. International Trade Administration. See North American Free-Trade Agreement, Article 1904 NAFTA Panel Reviews; Completion of Panel Review, 69 FR 67703 (November 19, 2004). Therefore, because there is a final Panel decision in this case, the Department is amending the final sunset review and revoking the antidumping duty order on pure magnesium from Canada.

Effective Date of Revocation

The Department is revoking the antidumping duty order on pure magnesium from Canada effective August 1, 2000, the effective date of the original full sunset review, pursuant to 516A(g)(5)(C).

Pursuant to sections 751(d)(3) and 751(d)(2) of the Act, and 19 CFR 351.222(i)(2)(ii), the Department will instruct Customs and Border Protection to terminate the suspension of liquidation of the merchandise subject to this order entered, or withdrawn from warehouse, on or after August 1, 2000 and liquidate without regard to antidumping duties.

This notice also serves as the only reminder to parties subject to administrative protective order (“APO”) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305 of the Department's regulations. Timely notification of return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation.

This five-year (“sunset”) review and notice are in accordance with sections 751(c), 752, and 777(i)(1) of the Act.

Dated: December 1, 2004.

Joseph A. Spetrini,

Acting Assistant Secretary for Import Administration.