E5-4716. Certain Cut-To-Length Plate From Italy: Notice of Amended Final Determination Pursuant to Final Court Decision and Partial Revocation of Order

AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

SUMMARY:

On March 26, 2004, the United States Court of International Trade (CIT) sustained the Department of Commerce's (the Department) third remand determination of the Final Affirmative Countervailing Duty Determination: Certain Cut-to-Length Carbon Steel Plate from Italy, 64 FR 73244 (December 29, 1999) (Italian Plate). See ILVA Lamiere e Tubi S.p.A. v. United States, Court No. 00-03-00127, Slip. Op. 04-29 (CIT, March 26, 2004) (ILVA v. United States). The Department appealed this decision to the United States Court of Appeals for the Federal Circuit (Federal Circuit). On February 10, 2005, the Federal Circuit affirmed the CIT's decision in a non-precedential judgment. See Ilva Lamiere E Tubi S.r.L. and Ilva S.p.A. v. United States, Court No. 04-1415 (February 10, 2005). Because all litigation in this matter has concluded, the Department is issuing the amended final determination in Italian Plate in accordance with the CIT's decision.

EFFECTIVE DATE:

April 16, 2004

FOR FURTHER INFORMATION CONTACT:

Eric B. Greynolds, AD/CVD Operations, Office 3, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Ave., NW., Washington, DC 20230; telephone: [phone].

SUPPLEMENTARY INFORMATION:

Background

On December 29, 1999, the Department published its affirmative countervailing duty determination in Italian Plate. The Department published related countervailing duty orders 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). ILVA S.p.A. and ILVA Lamieri e Tubi S.r.l. (collectively, ILVA) challenged this determination before the CIT arguing, in relevant part, that the Department misapplied its change-in-ownership methodology. On August 30, 2000, the CIT granted the Department's request for a voluntary remand, and remanded the Italian Plate proceeding to the Department with instructions to: “Issue a determination consistent with United States law, interpreted pursuant to all relevant authority, including the decision of the Court of Appeals for the Federal Circuit in Delverde, S.r.l. v. United States, 202 F.3d 1360 (Fed. Cir. 2000).” ILVA v. United States, Court No. 00-03-00127 (CIT August 30, 2000). The Department issued its remand results on December 28, 2000. See Final Results of Redetermination Pursuant to Court Remand: ILVA Lamiere e Tubi S.p.A. v. United States Remand Order, Court No. 00-03-00127 (CIT, August 30, 2000) (December 28, 2000) (Remand Determination I).

On March 29, 2002, the CIT remanded the Italian Plate proceeding to the Department, and ordered the Department to reexamine the facts of the proceeding pursuant to its instructions. See ILVA v. United States, Court No. 00-03-00127, Slip. Op. 02-32 (CIT, March 29, 2002). Though the Department noted its objections, it complied with the court's instructions and issued its second redetermination on July 2, 2002. See Final Results of Second Redetermination Pursuant to Remand Order, ILVA Lamiere e Tubi S.r.L. and ILVA S.p.A. v. United States, Court No. 00-03-00127, Remand Order (CIT, March 29, 2002) (July 2, 2002) (Remand Determination II).

On July 29, 2003, the CIT affirmed the Department's second redetermination in part, and remanded it in part. See ILVA v. United States, Slip. Op. 03-97 (CIT, July 29, 2003). The CIT affirmed the Department's application of the court-ordered methodology, but remanded the proceeding, ordering the Department to resolve one issue, still outstanding, pursuant to the CIT's prescribed methodology. Though the Department noted its objections, it complied with the court's instructions and issued its third redetermination on August 28, 2003. See Results of Redetermination Pursuant to Court Remand: ILVA Lamiere e Tubi S.r.L. and ILVA S.p.A., Court No. 00-03-00127, Remand Order (CIT, July 29, 2003) (August 28, 2003) (Remand Determination III). As a result of the methodologies established in Remand Determinations I through III, the Department calculated a cash deposit rate of 2.45 percent for ILVA. Id.

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 (November 17, 2003) (Section 129 Implementation). The Department implemented, among other determinations, its Section 129 determination with respect to the CVD Order. The result was a revised cash deposit rate of 3.44 percent ad valorem for ILVA/ILT, which is consistent with the revised rate in Redetermination II pursuant to the CIT's ordered methodology. The effective date of the revised cash deposit rate pursuant to the Section 129 Implementation was November 7, 2003. The Department instructed U.S. Customs and Border Protection (CBP) to collect cash deposits of estimated countervailing duties in the percentage of 3.44 percent ad valorem of the f.o.b. invoice price on all shipments of subject merchandise from ILVA/ILT entered or withdrawn from warehouse, for consumption on or after November 7, 2003.

On March 26, 2004, the CIT sustained the Department's third redetermination in all respects, and thus affirmed the Department's calculated cash deposit rate of 2.45 percent. On April 16, 2004, the Department, consistent with the decision of the Federal Circuit in Timken Co. v. United States, 893 F.2d 337 (Fed. Cir. 1990), notified the public that the ILVA v. United States decision, along with the CIT's earlier opinions and orders in this case, were “not in harmony” with the Department's original results. See Certain Cut-to-Length Plate from Italy: Notice of Decision of the Court of International Trade, 69 FR 20600 (April 16, 2004) (Timken Notice). The Timken Notice continued the suspension of liquidation, and further informed that if the CIT's decision was not appealed, or if appealed, and upheld, the Department would publish amended final countervailing duty results. Id.

The Department subsequently appealed the case to the Federal Circuit on May 24, 2004. On February 10, 2005, the Federal Circuit issued a non-precedential decision affirming the CIT's decision in ILVA v. United States sustaining the results of Redetermination III. Because there is now a final and conclusive decision in the court proceeding, we are amending the final determination and establishing the revised countervailing duty rate of 2.45 percent, effective as of April 16, 2004, the publication date of the Timken Notice.

Amended Final Determination

Because there is now a final and conclusive decision in the court proceeding, we are amending the final determination to reflect the results of Remand Determination III, i.e., that the countervailable subsidy rate for ILVA/ILT is 2.45 percent ad valorem, effective as of April 16, 2004, the publication date of the Timken Notice. Accordingly, we will instruct CBP to collect cash deposits of estimated countervailing duties in the percentage of 2.45 percent of the f.o.b. invoice price on all shipments of subject merchandise from ILVA/ILT entered or withdrawn from warehouse, for consumption, on or after April 16, 2004.

Further, we will instruct CBP to assess countervailing duties at 3.44 percent ad valorem on all shipments of the subject merchandise from ILVA/ILT, entered, or withdrawn from warehouse, for consumption, on or after January 1, 2004, through April 15, 2004. We will instruct CBP to assess countervailing duties at 2.45 percent ad valorem on all shipments of the subject merchandise from ILVA/ILT, entered, or withdrawn from warehouse, for consumption, on or after April 16, 2004 through December 31, 2004.¹

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

Dated: August 22, 2005.

Ronald K. Lorentzen,

Acting Assistant Secretary for Import Administration.

Footnotes

1.  All entries prior to January 1, 2004, have been liquidated.