[Federal Register Volume 76, Number 80 (Tuesday, April 26, 2011)]
[Proposed Rules]
[Pages 23225-23227]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-10045]
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DEPARTMENT OF COMMERCE
International Trade Administration
19 CFR Part 351
[Docket No. 110420253-1253-01]
RIN 0625-AA88
Modification of Regulations Regarding the Practice of Accepting
Bonds During the Provisional Measures Period in Antidumping and
Countervailing Duty Investigations
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 modify
its regulation that states that provisional measures during an
antidumping or countervailing duty investigation usually take the form
of a bonding requirement. The modification, if adopted, would establish
that the provisional measures during an antidumping or countervailing
duty investigation will normally take the form of a cash deposit.
DATES: To be assured of consideration, comments must be received no
later than May 26, 2011.
ADDRESSES: All comments must be submitted through the Federal
eRulemaking Portal at http://www.regulations.gov, Docket No. ITA-2011-
0005, unless the commenter does not have access to the Internet.
Commenters who do not have access to the Internet may submit the
original and two copies of each set of comments by mail or hand
delivery/courier. All comments should be addressed to Ronald K.
Lorentzen, Deputy Assistant Secretary for Import Administration, Room
1870, Department of Commerce, 14th Street and Constitution Ave., NW.,
Washington, DC 20230. The comments should also be identified by
Regulation Identifier Number (RIN) 0625-AA88.
The Department will consider all comments received before the close
of the comment period. The Department will not accept comments
accompanied by a request that part or all of the material be treated
confidentially because of its business proprietary nature or for any
other reason. All comments responding to this notice will be a matter
of public record and will be available for inspection at Import
Administration's Central Records Unit (Room 7046 of the Herbert C.
Hoover Building) and online at http://www.Regulations.gov and on the
Department's Web site at http://www.trade.gov/ia/.
Any questions concerning file formatting, document conversion,
access on the Internet, or other electronic filing issues should be
addressed to Andrew Lee Beller, Import Administration Webmaster, at
(202) 482-0866, e-mail address: [email protected].
FOR FURTHER INFORMATION CONTACT: Thomas Futtner at (202) 482-3814, Mark
Ross at (202) 482-4794, or Joanna Theiss at (202) 482-5052.
SUPPLEMENTARY INFORMATION:
Background
The Department proposes to modify its regulation to establish that
the provisional measures during an antidumping or countervailing duty
investigation will normally take the form of a cash deposit. The
provisional measures period is the period between the publication of
the Department's preliminary affirmative determination and the earlier
of (1) the expiration of the applicable time period set forth in
sections 703(d) and 733(d) the Tariff Act of 1930, as amended (the
Act), or (2) the publication of the International Trade Commission's
final affirmative injury determination.\1\ During the provisional
measures period in antidumping and countervailing duty investigations,
the Department is instructed by the Act to order ``the posting of a
cash deposit, bond, or other security, as the administering authority
deems appropriate.'' See Sections 703(d)(1)(B) and 733(d)(1)(B) of the
Act.
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\1\ Also, pursuant to sections 703(e)(2) and 733(e)(2) of the
Act, if the Department makes an affirmative determination of
critical circumstances, then provisional measures shall apply on or
after the later of (A) the date which is 90 days before the date on
which the suspension of liquidation was first ordered, or (B) the
date on which notice of the determination to initiate the
investigation is published in the Federal Register.
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Our regulations describe the preliminary determination in
antidumping and countervailing duty investigations as the first point
at which the Department may provide a remedy if we preliminarily find
that dumping or countervailable subsidies has occurred. The regulations
at 19 CFR 351.205(a) state that, ``[t]he remedy (sometimes
[[Page 23226]]
referred to as `provisional measures') usually takes the form of a
bonding requirement to ensure payment if antidumping or countervailing
duties ultimately are imposed.'' Section 351.205(d) states that, ``[i]f
the preliminary determination is affirmative, the Secretary will take
the actions described in section 703(d) or section 733(d) (whichever is
applicable).''
A key reason for requiring that the provisional measures during an
antidumping or countervailing duty investigation take the form of a
cash deposit is to better ensure that importers bear full
responsibility for any future antidumping and countervailing duties
they may owe. While most of the duties on entries secured by a bond
during the provisional measures period are ultimately collected, these
collections can be very slow and involve burdensome administrative
problems for U.S. Customs and Border Protection (CBP).
We also believe that this change to our regulation will bring the
United States in line with the practices of other World Trade
Organization (WTO) Members. We are aware of no other WTO Member that is
currently permitting importers the option of posting bonds during the
provisional measures period of antidumping and countervailing duty
investigations.
Explanation of Proposed Modification to 19 CFR 351.205
The second sentence of 19 CFR 351.205(a) states that, ``[t]he
remedy (sometimes referred to as `provisional measures') usually takes
the form of a bonding requirement to ensure payment if antidumping or
countervailing duties ultimately are imposed.'' The Department proposes
deleting most of this sentence because U.S. importers would normally no
longer be permitted to post bonds during the provisional measures
period. The Department proposes keeping the ``(sometimes referred to as
`provisional measures')'' phrase and moving it to the first sentence of
19 CFR 351.205(a). We view this phrase as a useful link between this
part of our regulations and the terminology under Article 7 of the WTO
Antidumping Agreement. Further, to clarify that provisional measures
will take the form of cash deposits the Department proposes adding a
sentence to 19 CFR 351.205(d) that states, ``[w]ith respect to section
703(d)(1)(B) and 733(d)(1)(B) of the Act, the Secretary will normally
order the posting of cash deposits to ensure payment if antidumping or
countervailing duties ultimately are imposed.'' This change, in our
view, places the requirement for cash deposits in the appropriate part
of 19 CFR 351 (i.e., in the part that explains the effects of an
affirmative preliminary determination). These modifications would
reflect the Department's change in practice of normally requiring cash
deposits rather than bonds during the provisional measures period. This
modification is also in line with 19 CFR 351.205(d), which provides
that ``if the preliminary determination is affirmative, the Secretary
will take the actions described in section 703(d) or section 733(d) of
the Act (whichever is applicable)'' because these sections of the Act
provide that the Department shall order the posting of cash deposits or
bonds, as the Department deems appropriate.
Classification
Executive Order 12866
This rule has been determined to be not significant for purposes
Executive Order 12866.
Regulatory Flexibility Act
The Chief Counsel for Regulation has certified to the Chief Counsel
for Advocacy of the Small Business Administration (``SBA'') under the
provisions of the Regulatory Flexibility Act, 5 U.S.C. 605(b), that the
proposed rule would not have a significant economic impact on a
substantial number of small business entities. A summary of the need
for, objectives of, and legal basis for this rule is provided in the
preamble, and is not repeated here.
The entities upon which this rulemaking could have an impact
include foreign exporters and producers, some of whom are affiliated
with U.S. companies, and U.S. importers. Some of these entities may be
considered small entities under the SBA small business size standard.
The Department is not able to estimate the number of small entities
this proposed rule will affect; however, the Department anticipates
that it will not be a substantial number based on our experience with
the administration of antidumping and countervailing duty proceedings.
The Department also estimates that this proposed rule's economic
impact on small entities will not be significant. In 2008 and 2009,
antidumping and countervailing duty remedies were applied to less than
2% of imports into the United States. Further, because provisional
antidumping and countervailing duties only apply during the
investigation phase of a case, this proposed rule is not applicable to
a significant portion of our antidumping and countervailing duty
remedies. Finally, the Act provides that provisional measures may only
be in force for a four-month period, which can be extended to no longer
than six months in antidumping cases.
Moreover, given the nature of our retrospective duty assessment
system, eliminating effectively the bonding option and requiring cash
deposits during the provisional measure period should not have a
significant economic impact on small business entities. Under the U.S.
retrospective system, for the provisional measure period an estimated
antidumping or countervailing duty rate is established (based on the
dumping margin or subsidy rate found in the preliminary determination
of the original investigation), and this rate is applied to subject
merchandise as it is imported. This duty rate is for deposit purposes
only. Final duties are not assessed at the time the subject merchandise
is imported into the United States. Rather, beginning one year after
the imposition of any antidumping or countervailing duty order,
interested parties (e.g., domestic producers, importers, or foreign
exporters) may request an administrative review to determine the actual
amount of duties to be collected based on the level of dumping or
subsidization that occurred during the review period. Further, small
business entities will continue to have the option to post cash
deposits during the provisional measures period, either from the
entity's assets or borrowed from third parties.
For all of these reasons, the proposed rule would not have a
significant economic impact on a substantial number of small business
entities. Since this proposed modification to 19 CFR 351.222, if
adopted, will not have a significant economic impact on a substantial
number of small entities, an Initial Regulatory Flexibility Analysis is
not required and, therefore, has not been prepared.
Paperwork Reduction Act
This rule does not contain a collection of information for purposes
of the Paperwork Reduction Act of 1980, as amended (44 U.S.C. 3501 et
seq.).
List of Subjects in 19 CFR Part 351
Administrative practice and procedure, Antidumping, Business and
industry, Cheese, Confidential business information, Countervailing
duties, Freedom of information, Investigations, Reporting and
recordkeeping requirements.
[[Page 23227]]
Dated: April 20, 2011.
Ronald K. Lorentzen,
Deputy Assistant Secretary for Import Administration.
For the reasons stated, 19 CFR part 351 is proposed to be amended
as follows:
PART 351--ANTIDUMPING AND COUNTERVAILING DUTIES
1. The authority citation for 19 CFR 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.
2. In Sec. 351.205, revise paragraphs (a) and (d) to read as
follows:
(a) Introduction. A preliminary determination in an antidumping or
countervailing duty investigation constitutes the first point at which
the Secretary may provide a remedy (sometimes referred to as
``provisional measures'') if the Secretary preliminarily finds that
dumping or countervailable subsidization has occurred. Whether the
Secretary's preliminary determination is affirmative or negative, the
investigation continues. This section contains rules regarding
deadlines for preliminary determinations, postponement of preliminary
determinations, notices of preliminary determinations, and the effects
of affirmative preliminary determinations.
* * * * *
(d) Effect of affirmative preliminary determination. If the
preliminary determination is affirmative, the Secretary will take the
actions described in section 703(d) or section 733(d) of the Act
(whichever is applicable). With respect to section 703(d)(1)(B) and
733(d)(1)(B) of the Act, the Secretary will normally order the posting
of cash deposits to ensure payment if antidumping or countervailing
duties ultimately are imposed. In making information available to the
Commission under section 703(d)(3) or section 733(d)(3) of the Act, the
Secretary will make available to the Commission and to employees of the
Commission directly involved in the proceeding the information upon
which the Secretary based the preliminary determination and which the
Commission may consider relevant to its injury determination.
[FR Doc. 2011-10045 Filed 4-25-11; 8:45 am]
BILLING CODE 3510-DS-P