[Federal Register: August 15, 2005 (Volume 70, Number 156)]
[Proposed Rules]
[Page 47738-47740]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15au05-15]
[[Page 47738]]
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DEPARTMENT OF COMMERCE
International Trade Administration
19 CFR Part 351
[Docket No. 050803215-5215-01]
RIN 0625-AA69
Procedures for Conducting Five-year (``Sunset'') Reviews of
Antidumping and Countervailing Duty Orders
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
ACTION: Proposed rule; request for comments.
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SUMMARY: The Department of Commerce (``the Department'') proposes to
amend its regulations related to sunset reviews to conform the existing
regulation to the United States' obligations under Articles 6.1, 6.2,
and 11.3 of the Agreement on the Implementation of Article VI of the
General Agreement on Tariffs and Trade 1994 (``Antidumping
Agreement''). The proposed regulations, if adopted, would amend the
``waiver'' provisions which govern treatment of interested parties who
do not provide a substantive response to the Department's notice of
initiation of a sunset review and clarify the basis for parties'
participation in a public hearing in an expedited sunset review.
DATES: To be assured of consideration, written comments must be
received not later than September 14, 2005.
ADDRESSES: A signed original and two copies of each set of comments,
including reasons for any recommendation, should be submitted to Joseph
A. Spetrini, Acting Assistant Secretary for Import Administration,
Central Records Unit, room 1870, U.S. Department of Commerce,
Pennsylvania Avenue and 14th Street, NW, Washington, DC, 20230;
attention: Proposed Amendments to Sunset Procedural Regulations.
FOR FURTHER INFORMATION CONTACT: Stacy J. Ettinger or Patrick V.
Gallagher, Office of the Chief Counsel for Import Administration, room
3622, U.S. Department of Commerce, Pennsylvania Avenue and 14th Street
NW, Washington, DC, 20230; telephone: (202)482-4618 or (202)482-5053,
respectively.
SUPPLEMENTARY INFORMATION:
Background
On March 20, 1998, the Department published regulations addressing
the procedures for participation in, and conduct of, sunset reviews.
See 63 Fed. Reg. 13516. On December 17, 2004, the Dispute Settlement
Body (DSB) of the World Trade Organization (WTO) adopted the reports of
the Appellate Body (``AB'') and the dispute settlement panel in United
States--Sunset Reviews of Anti-dumping Measures on Oil Country Tubular
Goods from Argentina, WT/DS268/AB/R (November 29, 2004) and WT/DS268/R
(July 16, 2004), respectively. The AB/panel found that the waiver
provisions of section 751(c)(4)(B) of the Tariff Act of 1930 and
section 351.218(d)(2)(iii) of Commerce's sunset regulations are
inconsistent with Articles 6.1, 6.2, and 11.3 of the Antidumping
Agreement.
Section 123 of the Uruguay Round Agreements Act (``URAA'') governs
the process for changes to the Department's regulations where a dispute
settlement panel and/or the Appellate Body finds a regulatory provision
to be inconsistent with any of the WTO agreements. Consistent with
section 123(g)(1)(C), the Department is publishing proposed amendments
to its regulations related to sunset reviews to conform the existing
regulations to the United States' obligations under Articles 6.1, 6.2,
and 11.3 of the Antidumping Agreement. The proposed regulations, if
adopted, would amend the ``waiver'' provisions which govern treatment
of interested parties who do not provide a complete substantive
response to the Department's Notice of Initiation of a sunset review
and clarify the basis for parties' participation in a public hearing in
an expedited sunset review.
Explanation of Proposed Amendments
Section 351.218
Section 751(c)(4)(B) of the Tariff Act provides that where an
interested party ``waives'' its participation in a sunset review, the
Department ``shall conclude that revocation of the order ... would be
likely to lead to continuation or recurrence of dumping or a
countervailable subsidy (as the case may be) with respect to that
interested party.'' Paragraph (d)(2) of 19 CFR 351.218 deals with the
procedure for waiving participation in a sunset review before the
Department. Specifically, paragraph (d)(2)(i) provides for filing a
``statement of waiver'' for parties electing not to participate in the
Department's sunset review (so-called ``affirmative waiver''), and
paragraph (d)(2)(iii) provides that failure to file a complete
substantive response to a notice of initiation also will be treated as
a waiver of participation (so-called ``deemed waiver''). The panel and
Appellate Body found that the operation of the statutory and regulatory
waiver provisions was inconsistent with the obligation under Article
11.3 to arrive at a ``reasoned conclusion'' because the Department's
order-wide likelihood determination would be based, at least in part,
on statutorily-mandated ``assumptions'' about a company's likelihood of
dumping. The AB/panel also found that the operation of paragraph
(d)(2)(iii) was inconsistent with ``due process rights'' of Articles
6.1 and 6.2, because the Department could assume likelihood with
respect to a particular company even though that party had filed a
substantive response to the notice of initiation, albeit an
``incomplete'' response.
To implement the AB/panel findings with respect to the operation of
the waiver provisions, we propose to modify the Department's
regulations to eliminate the possibility that the Department's order-
wide likelihood determinations would be based on assumptions about
likelihood of continuation or recurrence of dumping or a
countervailable subsidy due to interested parties' waiver of
participation in sunset reviews. Thus, we propose the following three
modifications to paragraph (d)(2) of 19 CFR 351.218. First, with
respect to so-called ``affirmative waivers'' set forth in paragraph
(d)(2)(i) which provides that a party may elect not to participate in
the Department's sunset review by filing a ``statement of waiver''
within 30 days of initiation of the sunset review we propose to amend
the contents of a ``statement of waiver'' which are set forth in
paragraph (d)(2)(ii). Specifically, we proposed to amend paragraph
(d)(2)(ii) to require that a party filing a Statement of Waiver include
a statement that it is likely to dump or benefit from a countervailable
subsidy (as the case may be) or, in the case of a foreign government in
a CVD sunset review, provide a countervailable subsidy, if the order is
revoked or the investigation is terminated. Second, we propose to
eliminate paragraph (d)(2)(iii) which provides that an interested party
is ``deemed'' to have waived participation in the sunset review by
failing to file a complete substantive response to a notice of
initiation. Thus, the Department will no longer make company-specific
likelihood findings for companies that fail to file a statement of
waiver and fail to file a substantive response to the notice of
initiation. Finally, we propose to modify paragraphs (d)(2)(iv)(C) and
(e)(1)(ii)(B)(3) which address waiver of participation by a foreign
government in a CVD sunset review to eliminate cross-references to
paragraph (d)(2)(iii) and to
[[Page 47739]]
eliminate certain language that might suggest the possibility that the
Department's order-wide likelihood determination in a CVD sunset review
would be based on assumptions about likelihood of continuation or
recurrence of a countervailable subsidy. In sum, these three
modifications to the waiver provisions of the Department's sunset
regulations will ensure that there is no longer the possibility that
the Department's order-wide likelihood determinations might be based on
assumptions about likelihood of continuation or recurrence of dumping
or a countervailable subsidy. The Department will make its order-wide
likelihood determinations on the basis of the facts and information
available on the record of the sunset review.
Section 351.309
The Appellate Body upheld the panel's finding that the operation of
paragraph (d)(2)(iii) of 19 CFR 351.218 was inconsistent with Article
6.2 in that it allegedly denies an interested party that is deemed to
have waived its right to participate in a sunset review by submitting
an incomplete substantive response the right to participate in a
hearing. Paragraph (d)(2)(iii) does not explicitly address the issue of
hearings; nor do the regulations preclude hearings in expedited sunset
reviews resulting from the application of the waiver provisions.
Nevertheless, in the interest of alleviating any perceived confusion
with respect to participation in a hearing in an expedited sunset
review, we propose to modify paragraph (c)(1)(iii) of 19 CFR 351.309 to
clarify that the Secretary will specify a due date for case briefs in
an expedited sunset review. Case briefs provide the basis for parties'
affirmative presentations at a hearing. In addition, as discussed
above, for other reasons we propose to eliminate paragraph (d)(2)(iii)
in its entirety.
Effective Date
Pursuant to section 123(g)(2) of the URAA, the final amended
regulation may not become effective until the end of the 60-day period
beginning on the date on which the Department and the Office of the
U.S. Trade Representative (``USTR'') undertake consultations with the
appropriate congressional committees concerning the proposed contents
of the final rule. Since the date of consultations has not yet been
determined, we are unable to project the possible effective date at
this time. If the proposed regulation is adopted, we will publish the
effective date in the notice of final rule based upon the date on which
USTR and the Department consult with Congress.
Classification
E.O. 12866
This proposed rule has been determined to be not significant under
E.O. 12866.
Paperwork Reduction Act
Notwithstanding any other provision of law, no person is required
to respond to nor shall a person be subject to a penalty for a failure
to comply with a collection of information subject to the requirements
of the Paperwork Reduction Act unless that collection of information
displays a currently valid Office of Management and Budget (OMB)
control number. This proposed rule involves collection-of-information
requirements subject to the Paperwork Reduction Act, 44 USC Chapter 35.
The requirements have been approved by OMB under control numbers 0625-
0148.
E.O. 12612
This proposed rule does not contain federalism implications
warranting the preparation of a Federalism Assessment.
Regulatory Flexibility Act
The Chief Counsel for Regulation of the Department of Commerce has
certified to the Chief Counsel for Advocacy of the Small Business
Administration that these proposed rules, if adopted, would not have a
significant impact on a substantial number of small entities. We cannot
identify the number of small entities that may be affected by this rule
because we do not keep track of that information. The Department's
existing regulations contain procedures for the conduct of five-year
(``sunset'') reviews in which the Secretary considers whether to
revocation of an order is likely to lead to continuation or recurrence
of dumping or a countervailable subsidy. The proposed amendments revise
the process for interested parties electing not to participate in a
sunset review and clarify the basis for parties' participation in a
hearing in an expedited sunset review. These actions, in and of
themselves, will not have a significant economic impact because they do
not impose any new reporting requirements. Therefore, the Chief Counsel
concluded that the proposed rules would not have a significant impact
on a substantial number of small business entities, and a regulatory
flexibility analysis was not prepared.
List of Subjects in 19 CFR Part 351
Administrative practice and procedure, Antidumping duties, Business
and industry, Cheese, Confidential business information, Countervailing
duties, Investigations, Reporting and record keeping requirements.
Dated: August 5, 2005.
Joseph A. Spetrini,
Acting Assistant Secretary for Import Administration.
For the reasons stated, 19 CFR Part 351 is amended as follows:
PART 351--ANTIDUMPING AND COUNTERVAILING DUTIES
Subpart B--Antidumping and Countervailing Duty Procedures
1. Section 351.218 is amended by revising paragraphs (d)(2)(ii),
(d)(2)(iv) introductory text, (d)(2)(iv)(C), (e)(1)(ii)(B) introductory
text, and (e)(1)(ii)(B)(3), and removing and reserving paragraph
(d)(2)(iii), as follows:
Sec. 351.218 Sunset reviews under section 751(c) of the Act.
* * * * *
(d) Participation in sunset review (1) * * *
(2) Waiver of response by a respondent interested party to a notice
of initiation (i) * * *
(ii) Contents of statement of waiver. Every statement of waiver
must include a statement indicating that the respondent interested
party waives participation in the sunset review before the Department;
a statement that the respondent interested party is likely to dump or
benefit from a countervailable subsidy (as the case may be) if the
order is revoked or the investigation is terminated; in the case of a
foreign government in a CVD sunset review, a statement that the
government is likely to provide a countervailable subsidy if the order
is revoked or the investigation is terminated; and the following
information: * * *
* * * * *
(iii) [reserved]
* * * * *
(iv) Waiver of participation by a foreign government in a CVD
sunset review. Where a foreign government waives participation in a CVD
sunset review under paragraph (d)(2)(i) of this section, the Secretary
will:
* * * * *
(C) Base the final results of review on the facts available in
accordance with Sec. 351.308(f).
* * * * *
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(e) Conduct of sunset review- (1) * * *
(ii) Adequacy of response from respondent interested parties-(A) *
* *
(B) Failure of a foreign government to file a substantive response
to a notice of initiation in a CVD sunset review. If a foreign
government fails to file a complete substantive response to a notice of
initiation in a CVD sunset review under paragraph (d)(3)(v) of this
section or waives participation in a CVD sunset review under paragraph
(d)(2)(i) of this section, the Secretary will:
* * * * *
(3) Base the final results of review on the facts available in
accordance with Sec. 351.308(f).
* * * * *
Subpart C--Information and Argument
2. Section 351.309(c)(1)(iii) is revised to read as follows:
Sec. 351.309 Written argument.
* * * * *
(c) Case brief. (1) * * *
(iii) For the final results of an expedited sunset review,
expedited antidumping review, Article 8 violation review, Article 4/
Article 7 review, or section 753 review, a date specified by the
Secretary.
* * * * *
[FR Doc. 05-16133 Filed 8-12-05; 8:45 am]
BILLING CODE 3510-DS-S