Certain Cut-to-Length Carbon-Quality Steel Plate From France: Notice of Amended Final Determination Pursuant to Final Court Decision and Partial Revocation of Order

AGENCY:

Import Administration, International Trade Administration, Department of Commerce.------

ACTION:

Notice of amended final determination pursuant to final court decision and partial revocation of order.

SUMMARY:

On September 24, 2002, the United States Court of International Trade (“CIT”) sustained the Department of Commerce's (“the Department”) second remand determination of the Final Affirmative Countervailing Duty Determination: Certain Cut-to-Length Carbon-Quality Steel Plate From France, 64 FR 73277 (December 29, 1999) (“CTL Plate”). See GTS Industries S.A. v. United States, 246 F. Supp. 2d 1311 (2002) (“GTS II”). The Department appealed this decision to the United States Court of Appeals for the Federal Circuit (“Federal Circuit”). On May 13, 2004, the Federal Circuit affirmed the CIT's decision in GTS II. See GTS Industries S.A. v. United States, 97 Fed. Appx. 333 (CAFC, May 13, 2004) (“Appellate Decision”). Because all litigation in this matter has concluded, the Department is issuing this amended final determination in CTL Plate in accordance with the CIT's decision and revoking the countervailing duty order in part.

DATES:

Effective September 24, 2004.

FOR FURTHER INFORMATION CONTACT:

Jesse Cortes at (202) 482-3986, AD/CVD Operations 1, Office I, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230.

SUPPLEMENTARY INFORMATION:

Background

On December 29, 1999, the Department published the final affirmative countervailing duty determination in CTL Plate. The Department published the related countervailing duty order on February 10, 2000. See Notice of Amended Final Determinations: Certain Cut-to-Length Carbon-Quality Steel Plate From India and the Republic of Korea; and Notice of Countervailing Duty Orders: Certain Cut-to-Length Carbon-Quality Steel Plate From France, India, Indonesia, Italy, and the Republic of Korea, 65 FR 6587 (February 10, 2000) (“CVD Order”). In its final determination, the Department found that a portion of the countervailable subsidy benefits bestowed on French steel producer Usinor Sacilor prior to a stock sale privatization passed through to Usinor, the privatized company and a respondent in the investigation. Furthermore, the Department found that, in turn, a pro rata share of the countervailable subsidy benefits also passed through to GTS Industries S.A. (“GTS”) in proportion to Usinor's ownership share in GTS. GTS challenged this determination before the CIT. See GTS v. United States, Court No. 00-03-00118 (also referred to as “CTL Plate”). On April 5, 2001, the CIT issued an injunction enjoining the Department from liquidating GTS's entries of subject merchandise that were entered, or withdrawn from warehouse, for consumption on or after July 26, 1999.

On February 2, 2000, while CTL Plate was pending before the CIT, the Federal Circuit issued a ruling in Delverde SRL v. United States, 202 F.3d 1360 (Fed. Cir. 2000), reh'g granted in part, (June 20, 2000) (“Delverde III”), which had a direct impact on the change-in-ownership methodology at issue in CTL Plate. Specifically, the Federal Circuit ruled that the Tariff Act of 1930, as amended by the Uruguay Round Agreements Act effective January 1, 1995 (“the Act”), did not allow the Department to presume, pursuant to a per se ruling, that subsidies granted to the former owner of a company's assets automatically “passed through” to the new owner following a sale; rather, the statute required the Department to examine the particular facts and circumstances of the sale, and determine whether the new owner directly or indirectly received both a financial contribution and a benefit. Id. at 1364. In light of Delverde III, the Department asked the CIT to remand CTL Plate for reconsideration of the change-in-ownership issues. On August 9, 2000, with the parties' consent, the CIT remanded CTL Plate to the Department to issue a determination consistent with U.S. law and Delverde III. See GTS Industries S.A. v. United States, Court No. 00-03-00118, Remand Order August 9, 2000, modified by Order August 24, 2000.

On December 22, 2000, having taken Delverde III into consideration, the Department issued the Final Results of Redetermination Pursuant to Court Remand, GTS Industries S.A. v. United States, Court No. 00-03-00118, Remand Order (CIT August 24, 2000) (December 22, 2000) (“Remand Determination I”). In that redetermination, having found (based on an analysis of certain factors) that Usinor was the same legal person before and after privatization, the Department continued to assign to GTS its pro rata share of pre-privatization Usinor subsidies. See Remand Determination I at 20.

On January 4, 2002, rejecting the Department's same-person analysis as contrary to the requirements of Delverde III, the CIT again remanded CTL Plate to the Department. See GTS Industries S.A. v. United States, 182 F. Supp. 2d 1369 (2002) (“GTS I”).

Despite disagreement with the CIT's interpretation of Delverde III, the Department proceeded with a further redetermination as remanded and, on June 3, 2002, issued the Results of Redetermination Pursuant to Court Remand, GTS Industries S.A. v. United States, Court No. 00-03-00118, Remand Order (CIT January 4, 2002) (June 3, 2002) (“Remand Determination II”). In that redetermination, applying a fair-market-value analysis, the Department concluded that the purchasers/new owners of Usinor did not receive new countervailable subsidies as a result of the privatization transaction and, consequently, determined the rate of countervailable subsidy for the subject merchandise produced and sold by GTS during the period of investigation to be 0.00 percent.

On September 24, 2002, upon consideration of Remand Determination II, the CIT issued GTS II sustaining the results of Remand Determination II.

The Department subsequently appealed the case to the Federal Circuit. On May 13, 2004, the Federal Circuit issued the Appellate Decision, which affirmed the CIT's GTS II decision sustaining the results of Remand Determination II. Because there is now a final and conclusive decision in the court proceeding, effective as of the publication date of this notice, we are amending the final determination and establishing the revised countervailing duty rates set forth below.

In a contemporaneous but separate proceeding, on November 17, 2003, the Department published a Notice of Implementation Under Section 129 of the Uruguay Round Agreements Act; Countervailing Measures Concerning Certain Steel Products from the European Communities, 68 FR 64858 (Nov. 17, 2003). The Department implemented, among other determinations, its Section 129 determination with respect to the CVD Order. The result was a revocation of the CVD Order effective November 7, 2003. The Department instructed U.S. Customs and Border Protection (“CBP”) to discontinue suspension of liquidation of shipments of subject merchandise entered, or withdrawn from warehouse, for consumption on or after November 7, 2003.

Finally, the Department has conducted no administrative reviews of the CVD Order. As a consequence of the injunction issued by the CIT on April 5, 2001, the Department ordered the suspension of liquidation of all entries of subject merchandise produced or exported by GTS and entered, or withdrawn from warehouse, for consumption, on or after July 26, 1999. Those entries shall be liquidated as set forth below.

Amended Final Determination and Partial Revocation of Order

Because there is now a final and conclusive decision in the court proceeding, effective as of the publication date of this notice, we are amending the final determination to reflect the results of Remand Determination II, i.e., that the countervailable subsidy rate for GTS during the period of investigation is 0.00 percent ad valorem. Consequently, we are revoking the CVD Order with regard to GTS, for all entries after July 26, 1999 (the date on which the Department published the preliminary countervailing duty determination in CTL Plate) through November 7, 2003 (the date on which the Department implemented its Section 129 determination on CTL Plate).

Accordingly, pursuant to sections 705(c)(2)(A)-(B) of the Act and effective as of the publication of this notice, the Department will instruct CBP to terminate the suspension of liquidation of, and liquidate without regard to countervailing duties, all GTS entries entered, or withdrawn from warehouse, for consumption, on or after July 26, 1999, and before November 23, 1999 (the date the Department instructed CBP to discontinue the suspensions of liquidation), and all entries entered, or withdrawn from warehouse, for consumption on or after February 10, 2000 (the date on which the Department published the CVD Order), and before November 7, 2003.

This determination is published pursuant to sections 705(d) and 777(i) of the Act.