[Federal Register Volume 69, Number 234 (Tuesday, December 7, 2004)]
[Notices]
[Pages 70649-70651]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E4-3528]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-122-814]


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: (202) 482-5050.

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

[[Page 70650]]

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

[[Page 70651]]

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.
 [FR Doc. E4-3528 Filed 12-6-04; 8:45 am]
BILLING CODE 3510-DS-P