Slip-Op 05-58
United States Court of International Trade
NORSK HYDRO CANADA INC.,
Plaintiff,
v.
Before: Pogue, Judge
UNITED STATES,
Court No. 03-00828
Defendant,
and
U.S. MAGNESIUM, LLC,
Defendant-Intervenor.
ORDER
On October 24, 2004, this Court denied Defendant’s motion to
dismiss Plaintiff’s action. Norsk Hydro Canada, Inc. v. United
States, 350 F. Supp. 2d 1172 (2004). In that opinion, the Court
held that it had subject matter jurisdiction over this matter. The
Court further held that “[the Department of] Commerce has the
authority under [19 U.S.C.] § 1671(a) to ensure that the amount of
the countervailing duty imposed is equal to the amount of the net
countervailable subsidy.” Norsk Hydro, 350 F. Supp. 2d at 1186.
Moreover, 19 U.S. C. §1675a(a)(1)(A) requires that, in an
administrative review, the Department of Commerce is to “review and
determine the amount of any net countervailable subsidy.”
Following the Court’s opinion, Plaintiff filed a Motion for
Judgment on the Agency Record pursuant to USCIT R. 56.2.
Plaintiff’s motion, and the responses thereto, are now before the
Court. However, neither the motion nor the responses thereto have
raised any new legal claims other than those resolved by the
Court’s prior opinion.
The Department of Commerce, in the proceedings below,
determined that it could not offset future duties by the amount
Plaintiff overpaid in the past. Therefore, Commerce did not make
an evidentiary finding regarding the merits of Plaintiff’s case to
“determine the amount of any net countervailable subsidy.”
Consequently, this Court has no evidence on the record to review.
Ct. No. 03-00828 Page 2
Accordingly, the Court having resolved the meaning of the relevant
statutory provisions in Norsk Hydro Canada, Inc. v. United States,
350 F. Supp. 2d 1172 (2004), it is hereby
ORDERED that the Department of Commerce’s final results in the
administrative review of Pure Magnesium and Alloy Magnesium from
Canada, 68 Fed. Reg. 53962(Dep’t Commerce Sept. 15, 2003) (final
results of countervailing duty administrative review)are remanded
to the Department of Commerce;
IT IS FURTHER ORDERED that, upon remand, and consistent with
this Court’s opinion and order, the Department of Commerce shall
“review and determine the amount of any net countervailable
subsidy,” and specifically shall “ensure that the amount of the
countervailing duty imposed is equal to the amount of the net
countervailable subsidy;”
IT IS FURTHER ORDERED that the Department of Commerce shall
determine the amount of any duty remaining to be assessed;
The Department of Commerce shall have until June 17, 2005 to
submit its remand determination. The parties shall have until July
1, 2005 to submit comments on the remand determination. Rebuttal
comments shall be submitted by July 15, 2005.
/s/
Donald C. Pogue, Judge
Dated: May 17, 2005
New York, New York