Slip op. 04-62
UNITED STATES COURT OF INTERNATIONAL TRADE
Norsk Hydro Canada Inc.,
Plaintiff,
v.
UNITED STATES,
BEFORE : POGUE , JUDGE
Defendant
Court No. 03-00828
and
US Magnesium LLC,
Defendant-Intervenor.
ORDER
WHEREAS, in this matter, on January 27, 2004, this Court
issued a preliminary injunction against liquidation of entries of
pure magnesium and alloy magnesium from Canada “during the
pendency of this litigation,” and
WHEREAS Plaintiff has by Motion requested that this Court
clarify its preliminary injunction to specify that said
injunction remains in effect “during any appeals and/or remands,”
and
WHEREAS 19 U.S.C. § 1516a(c)(2) provides that this Court may
enjoin said liquidation “upon a request by an interested party
for such relief and a proper showing that the requested relief
should be granted under the circumstances...”, and
WHEREAS the parties agree that injunctive relief should be
granted under the circumstances, and
WHEREAS Defendant’s sole objection to the requested relief
is to the duration of said relief, as continuing through any
appeals and/or remands, and
WHEREAS 19 U.S.C. § 1516a(e)(2) provides that “entries, the
liquidation of which was enjoined under subsection (c)(2) of this
Court No. 03-00828 Page 2
section, shall be liquidated in accordance with the final Court
decision in the action” if the action is sustained, and
WHEREAS, Plaintiff has requested that this Court take note
of subsequent authority issued after the January 27, 2004
preliminary injunction in this matter, specifically Yancheng
Baolong Biochemical Prods. Co. v. U.S., slip op. 04-42 (CIT April
28, 2004), and SKF USA Inc. v. U.S., slip op. 04-14 (CIT Feb. 18,
2004), and
WHEREAS the relief requested by the Plaintiff will serve the
interest of judicial economy and efficiency by maintaining the
status quo pending the conclusion of this litigation without
requiring further action by the Court, and
WHEREAS Defendant has neither alleged nor shown any
prejudice resulting from the requested relief, NOW THEREFORE,
Upon consideration of the Notice of Subsequent Authority and
Motion to Clarify the Preliminary Injunction filed by Norsk Hydro
Canada Inc. (“NHCI”), it is hereby:
ORDERED that NHCI”s motion to clarify the preliminary
injunction is GRANTED; and it is further
ORDERED that Defendant, the United States, together with the
delegates, officers, agents, servants, and employees of the
United States Department of Commerce and the United States Bureau
of Customs and Border Protection, shall be, and hereby are,
ENJOINED, during the pendency of this litigation (including any
appeals and/or remands) and until entry of final judgment by this
Court in this litigation, from liquidating or causing or
permitting liquidation of any unliquidated entries of pure
magnesium and alloy magnesium from Canada that:
(1) were exported by NHCI;
(2) are covered by Pure Magnesium and Alloy Magnesium from
Canada: Final Results of Countervailing Duty
Administrative Review, 68 Fed. Reg. 53,962 (Dep’t
Commerce September 15, 2003) (“Final Results”);
(3) were entered, or withdrawn from warehouse, for
consumption, during the period January 1, 2001 through
December 31, 2001; and
(4) remain unliquidated as of 5 o’clock p.m. on the fifth
business day after the day upon which copies of the
Court No. 03-00828 Page 3
Order are personally served by Plaintiff upon the
following individuals and received by them or by their
delegates:
Ann Sebastian
Import Administration, International
Trade Administration
U.S. Department of Commerce
14th Street and Pennsylvania Ave., NW
Washington, DC 20230;
Hon. Robert C. Bonner, Commissioner of
Customs
Attn: Alfonso Robles, Esq. Chief Counsel
U.S. Bureau of Customs and Border
Protection
1301 Constitution Ave., NW, Rm. 3305
Washington, DC 20004; and
Stephen C. Tosini, Esq.
Commercial Litigation Branch, Civil
Division
United States Department of Justice
1100 L Street, NW, Suite 11064
Washington, DC 20530
and it is further
ORDERED that the entries subject to this injunction shall be
liquidated in accordance with the final court decision in this
action, as provided in 19 U.S.C. § 1516a(e).
/s/ Donald C. Pogue, Judge
Donald C. Pogue, Judge
Dated: June 8, 2004
New York, New York