69 FR 57266, September 24, 2004
DEPARTMENT OF COMMERCE
International Trade Administration
[C-427-817]
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.
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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
[[Page 57267]]
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.
Dated: September 20, 2004.
James J. Jochum,
Assistant Secretary for Import Administration.
[FR Doc. E4-2374 Filed 9-23-04; 8:45 am]