[Federal Register Volume 69, Number 169 (Wednesday, September 1, 2004)]
[Notices]
[Pages 53415-53417]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-20029]


-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

International Trade Administration

[C-427-815]


Stainless Steel Sheet and Strip in Coils From France: Notice of 
Amended Final Determination Pursuant to Final Court Decision and 
Revocation of Order

AGENCY: Import Administration, International Trade Administration, 
Department of Commerce.

ACTION: Notice of Amended Final Determination Pursuant to Final Court 
Decision and 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: Stainless Steel Sheet 
and Strip in Coils from France, 64 FR 30774 (June 8, 1999) (``French 
Stainless''). See Allegheny Ludlum Corp. v. United States, 182 F. Supp. 
2d 1357 (2002) (``Allegheny 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 Allegheny II. See allegheny Ludlum Corp. v. 
United States, 367 F.3d 1339 (Fed. Cir. 2004) (``Appellate Decision''). 
Because all litigation in this matter has concluded, the Department is 
issuing this amended final determination in French Stainless in 
accordance with the CIT's decision and revoking the countervailing duty 
order.

EFFECTIVE DATE: September 1, 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:

[[Page 53416]]

Background

    On June 8, 1999, the Department published the final affirmative 
countervailing duty determination in French Stainless. The Department 
published the related countervailing duty order on August 6, 1999. See 
Amended Final Determination: Stainless Steel Sheet and Strip in Coils 
From the Republic of Korea; and Notice of Countervailing Duty Orders: 
Stainless Steel Sheet and Strip in Coils From France, Italy, and the 
Republic of Korea, 64 FR 42923 (August 6, 1999) (``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 the respondent in the investigation. 
Usinor and one of the petitioners, Allegheny Ludlum Corporation 
(``Allegheny'' or ``the petitioner''), challenged this determination 
before the CIT. See Usinor v. United States, Court No. 99-09-00573 and 
Allegheny Ludlum v. United States, Court No. 99-09-00566. The cases 
were subsequently consolidated as Allegheny Ludlum v. United States, 
Court No. 99-09-00566 (also referred to as ``French Stainless''). On 
December 22, 1999, the CIT issued an injunction enjoining the 
Department from liquidating Usinor's, Ugine S.A.'s and Uginox's entries 
of subject merchandise that were entered, or withdrawn from warehouse, 
for consumption (1) on or after November 17, 1998, and before March 17, 
1999; and (2) on or after August 6, 1999.
    On February 2, 2000, while French Stainless 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 French Stainless. 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 French Stainless for reconsideration 
of the change-in-ownership issues. On August 15, 2000, with the 
parties' consent, the CIT remanded French Stainless to the Department 
to issue a determination consistent with U.S. law and Delverde III. See 
Allegheny Ludlum Corp. v. United States, Court No. 99-09-00566, Remand 
Order (August 15, 2000).
    On December 13, 2000, having taken Delverde III into consideration, 
the Department issued the Final Results of Redetermination Pursuant to 
Court Remand, Allegheny Ludlum Corp., et al., v. United States, Consol. 
Court No. 99-09-00566, Remand Order (CIT August 15, 2000) (December 13, 
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 
determined that pre-privatization subsidy benefits remained 
attributable to Usinor following privatization. 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 
French Stainless to the Department. See Allegheny Ludlum Corp. v. 
United States, 182 F. Supp. 2d 1357 (2002) (``Allegheny 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, Allegheny Ludlum Corp. et al., v. United States, Court 
No. 99-09-00566, 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.
    On September 24, 2002, upon consideration of Remand Determination 
II, the CIT issued Allegheny Ludlum Corp. v. United States, 246 F. 
Supp. 2d 1304 (2202) (``Allegheny 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 Allegheny 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 conducted two administrative reviews of the 
CVD Order. See Stainless Steel Sheet and Strip in Coils from France: 
Final Results of Countervailing Duty Administrative Review, 67 FR 62098 
(Oct. 3, 2002) and Stainless Steel Sheet and Strip in Coils from 
France: Final Results of Countervailing Duty Administrative Review, 68 
FR 53963 (Sept. 15, 2003). As a consequence of the injunction issued by 
the CIT on December 22, 1999, the Department did not order the 
liquidation of any entries covered by the administrative reviews. Those 
entries shall be liquidation as set forth below.

Amended Final Determination and 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 
Usinor during the period of investigation is 0.00 percent ad valorem. 
Because Usinor was the only known producer/exporter of the subject 
merchandise, we are also revoking the CVD Order for all entries after 
November 17, 1998 (the date on which the Department published the 
preliminary countervailing duty determination in French Stainless) 
through November 7, 2003 (the date on which the Department implemented 
its Section 129 determination on French Stainless).
    Accordingly, pursuant to section 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 
liquidation without regard to

[[Page 53417]]

countervailing duties, all entries entered, or withdrawn from 
warehouse, for consumption on or after November 17, 1998, and before 
March 17, 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 August 6, 1999 (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: August 26, 2004.
James J. Jochum,
Assistant Secretary for Import Administration.
[FR Doc. 04-20029 Filed 8-31-04; 8:45 am]
BILLING CODE 3510-DS-M