[Federal Register Volume 73, Number 238 (Wednesday, December 10, 2008)]
[Rules and Regulations]
[Pages 74930-74932]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-29225]
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DEPARTMENT OF COMMERCE
International Trade Administration
19 CFR Part 351
RIN 0625-AA79
Withdrawal of the Regulatory Provisions Governing Targeted
Dumping in Antidumping Duty Investigations
AGENCY: International Trade Administration, Import Administration.
ACTION: Interim final rule.
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SUMMARY: Import Administration issues this interim final rule for the
purpose of withdrawing the regulatory provisions governing the targeted
dumping analysis in antidumping duty investigations.
DATES: This interim final rule is effective for all antidumping duty
investigations initiated on or after December 10, 2008. Although the
amendment made by this Interim Final Rule is effective on December 10,
2008, Import Administration seeks public comments. To be assured of
consideration, written comments must be received not later than January
9, 2009.
ADDRESSES: Comments on this Interim Final Rule must be sent to David M.
Spooner, Assistant Secretary for Import Administration, Central Records
Unit, Room 1870, U.S. Department of Commerce, Pennsylvania Avenue.
FOR FURTHER INFORMATION CONTACT: Michael Rill, telephone 202-482-3058.
SUPPLEMENTARY INFORMATION: The Uruguay Round Agreements Act (``URAA''),
enacted into law in 1994, changed the methodology used to determine
whether a company is selling foreign merchandise into the United States
at dumped prices in antidumping investigations. Prior to the URAA, the
Department usually compared the six-month period of investigation
average normal value to individual U.S. transaction prices to determine
the margin of dumping (known as the average-to-transaction method). The
URAA, however, directed the Department normally to calculate dumping
margins by one of two methods: (1) By comparing weighted-average normal
values to the weighted average of the export prices for comparable
merchandise (known as the average-to-average method); or (2) by
comparing the normal values of individual transactions to the export
prices of individual transactions for comparable merchandise (known as
the transaction-to-transaction method). See 19 U.S.C. 1677f-1(d)(1)(A).
Congress, however, was aware that these methodologies could mask
certain types of dumping. ``In such situations, the exporter may sell
at a dumped price to particular customers or regions, while selling at
higher prices to other customers or regions.'' Uruguay Round Agreements
Act, H.R. 103-826, Oct. 3, 1994, p. 98.
To address this possibility, Congress enacted a statutory provision
that allows an exception to the above two comparison methodologies.
Specifically, when the Department finds that there is a pattern of
export prices for comparable merchandise that differ significantly
among purchasers, regions, or periods of time, and where such
differences cannot be taken into account using one of the preferred
methods referred to above, the Department could compare the weighted
average of the normal values to the export price of individual
transactions for comparable merchandise (i.e., average-to-transaction
comparisons). See 19 U.S.C. 1677f-1(d)(1)(B).
Sections 19 CFR 351.414(f) and (g) of the Department's regulations
establish certain criteria for analyzing allegations and making
targeted dumping determinations in antidumping duty investigations.
Section 19 CFR 351.301(d)(5) provides that an allegation of targeted
dumping is due no later than 30 days before the scheduled date of the
preliminary determination. The Department promulgated these provisions
(i.e., 19 CFR 351.414(f), (g), and 351.301(d)(5)) on May 19, 1997
(Antidumping Duties; Countervailing Duties; Final Rule, 62 FR 27296,
27374-76 (May 19, 1997)). At that time, the Department had never
performed a targeted dumping analysis. Therefore, the provisions were
promulgated without the benefit of any departmental experience on the
issue of targeted dumping. Until recently, there have been very few
allegations or findings of targeted dumping. This situation has caused
the Department to question whether, in the absence of any practical
experience, it established an appropriate balance of interests in the
provisions. The Department believes that withdrawal of the provisions
will provide the agency with an opportunity to analyze extensively the
concept of targeted dumping and develop a meaningful practice in this
area as it
[[Page 74931]]
gains experience in evaluating such allegations.
The Department may have established thresholds or other criteria
that have prevented the use of this comparison methodology to unmask
dumping, contrary to the Congressional intent. In that case, these
provisions would act to deny relief to domestic industries suffering
material injury from unfairly traded imports. Accordingly, immediate
revocation of the provisions will facilitate the proper and efficient
operation of the antidumping law.
The Department believes the withdrawal of this rule is not
significant. Withdrawal will allow the Department to exercise the
discretion intended by the statute and, thereby, develop a practice
that will allow interested parties to pursue all statutory avenues of
relief in this area.
The Department is not replacing these provisions with new
provisions. Instead, the Department is returning to a case-by-case
adjudication, until additional experience allows the Department to gain
a greater understanding of the issue.
Parties are invited to comment on the Department's withdrawal of
the regulatory provisions governing targeted dumping in antidumping
duty investigations. Parties should submit to the address under the
ADDRESSES heading a signed original and two copies of each set of
comments including reasons for any recommendation, along with a cover
letter identifying the commentator's name and address. To be assured of
consideration, written comments must be received not later than January
9, 2009.
Classification
Executive Order 12866
It has been determined that this interim final rule is not
significant for purposes of Executive Order 12866 of September 30, 1993
(``Regulatory Planning and Review'') (58 FR 51735 (October 4, 1993)).
Paperwork Reduction Act
This interim final rule contains no new collection of information
subject to the Paperwork Reduction Act, 44 U.S.C. Chapter 35.
Executive Order 13132
This rule does not contain policies with federalism implications as
that term is defined in section 1(a) of Executive Order 13132, dated
August 4, 1999 (64 FR 43255 (August 10, 1999)).
Administrative Procedure Act
The Assistant Secretary for Import Administration finds good cause
to waive the requirement to provide prior notice and opportunity for
public comment, pursuant to the authority set forth at 5 U.S.C. Sec.
553(b)(B), as such requirement is impracticable and contrary to the
public interest. Courts have determined that notice and comment is
impracticable when ``the agency could both follow section 553 and
execute its statutory duties.'' Lavesque v. Block, 723 F.2d 175, 184
(5th Cir. 1980). It went further to clarify that the Administrative
Procedure Act good cause waiver authorizes departures from the
requirements ``only when compliance would interfere with the agency's
ability to carry out its mission.'' Riverbend Farms, Inc. v. Madigan,
958 F.2d 1479, 1485 (9th Cir. 1992).
Here, under the Tariff Act of 1930, as amended, the Department may
employ the average-to-transaction comparison method in an investigation
if: (i) There is a pattern of export prices (or constructed export
prices) for comparable merchandise that differ significantly among
purchasers, regions, or periods of time, and (ii) the agency explains
why such differences cannot be taken into account using one of the
preferred methods. See 19 U.S.C. 1677f-1(d)(1)(B)(i) and (ii). Sections
19 CFR 351.414(f) and (g) of the Department's regulations establish
certain criteria for analyzing targeted dumping allegations in
antidumping investigations. These provisions were intended to clarify
when the Department would use the average-to-transaction comparison
method in antidumping duty investigations. As the provisions were
promulgated without the benefit of any experience on the issue of
targeted dumping, the Department may have established thresholds or
other criteria that have prevented the use of this comparison
methodology to unmask dumping. Likewise, 19 CFR 351.301(d)(5), the
provision that establishes the deadline for submitting allegations, was
promulgated without the benefit of any experience on the issue of
targeted dumping. Consequentially, the Department may have established
an impractical deadline for submitting such allegations. Given the
above, sections 19 CFR 351.414(f), (g), and 351.301(d)(5) would act to
deny relief to domestic industries suffering material injury from
unfairly traded imports. This effect is contrary to the Department's
intention in promulgating the provisions, and inconsistent with the
Department's statutory mandate to provide relief to domestic industries
materially injured by unfairly traded imports. Because the provisions
are applicable to ongoing antidumping investigations, and because the
application of the provisions can act to deny relief to domestic
industries suffering material injury from unfairly traded imports,
immediate revocation is necessary to ensure the proper and efficient
operation of the antidumping law and to provide the relief intended by
Congress.
The Assistant Secretary for Import Administration also finds good
cause to waive the 30-day delay in effectiveness, pursuant to the
authority set forth at 5 U.S.C. 553(e), for the reasons given above.
Significantly, the Department may employ the average-to-transaction
comparison method in an antidumping duty investigation if certain
conditions are met. See 19 U.S.C. 1677f-1(d)(1)(B)(i) and (ii).
Sections 19 CFR 351.414(f) and (g) of the Department's regulations may
have established thresholds or other criteria that have prevented the
use of this comparison methodology to unmask dumping, contrary to the
Congressional intent. Likewise, the Department may have established an
impractical deadline when it promulgated section 351.301(d)(5). Given
that the provisions are applicable to ongoing antidumping
investigations, and because the application of the provisions can act
to deny relief to domestic industries suffering material injury from
unfairly trade imports, immediate revocation is necessary to ensure the
proper and efficient operation of the antidumping law and to provide
the relief intended by Congress.
Regulatory Flexibility Act
Because a notice and an opportunity for public comment are not
required to be given for this rule under the Administrative Procedure
Act or by any other law, the analytical requirements of the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.) are not applicable. Therefore, a
regulatory flexibility analysis has not been prepared.
List of Subjects in 19 CFR Part 351
Administrative practice and procedure, Antidumping duties, Business
and industry, Cheese, Confidential business information,
Investigations, Reporting and recordkeeping requirements.
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For the reasons stated above, amend 19 CFR part 351 as follows:
[[Page 74932]]
PART 351--ANTIDUMPING AND COUNTERVAILING DUTIES
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1. The authority citation for part 351 continues to read as follows:
Authority: 5 U.S.C. 301; 19 U.S.C. 1202 note; 19 U.S.C. 1303
note; 19 U.S.C. 1671 et seq.; and 19 U.S.C. 3538.
Sec. 351.301. [Amended]
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2. Amend Sec. 351.301 by removing and reserving paragraph (d)(5).
Sec. 351.414 [Amended]
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3. Amend Sec. 351.414 by removing and reserving paragraphs (f) and
(g).
Dated: November 24, 2008.
David M. Spooner,
Assistant Secretary for Import Administration.
[FR Doc. E8-29225 Filed 12-9-08; 8:45 am]
BILLING CODE 3510-DS-P