70 FR 62061, October 28, 2005
DEPARTMENT OF COMMERCE
International Trade Administration
19 CFR Part 351
[Docket No. 050803215-5260-02]
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: Final rule.
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SUMMARY: The Department of Commerce (``the Department'') is amending
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 regulations 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: The effective date of this final rule is October 31, 2005. The
final rule will be applied in sunset reviews initiated on or after the
effective date.
[[Page 62062]]
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 FR 13516. On December 17, 2004, the Dispute Settlement Body
(``DSB'') of the World Trade Organization adopted the reports of the
Appellate Body 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 and the dispute settlement 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 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), on August
15, 2005, the Department published 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 Department received four
sets of written public comments on the proposed amendments. The
Department has carefully considered each of the comments it received,
and has adopted a drafting suggestion from one commenter related to the
issue of the basis for parties' participating in a hearing in an
expedited sunset review. This final rule is published pursuant to
section 123(g)(1)(F) of the URAA. The final rule amends 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 clarifies the basis for parties'
participation in a public hearing in an expedited sunset review.
Explanation of Amendments
In finalizing the amendments to the Department's regulations
addressing the procedures for participation in, and conduct of, sunset
reviews, the Department carefully considered each of the comments it
received. The following is an explanation of the amendments, as well as
a summary of the comments received and the Department's responses to
those comments.
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 and 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 and panel findings with respect to the
operation of the waiver provisions, the Department has modified its
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. Specifically, the Department has made
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--the Department has amended the contents of a ``statement of
waiver'' which are set forth in paragraph (d)(2)(ii). Paragraph
(d)(2)(ii) now requires 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 have eliminated paragraph (d)(2)(iii)--which provided 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 modified 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 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 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.
Two commenters argue that amendment or withdrawal of the statutory
provision (section 751(c)(4)(B) of the Act) found to be WTO-
inconsistent was required in order to implement the AB/panel findings.
We disagree. By modifying its regulatory waiver provisions, the
Department has eliminated the possibility that its order-wide
likelihood determinations would be based on assumptions about
[[Page 62063]]
likelihood of continuation or recurrence of dumping or a
countervailable subsidy due to interested parties' waiver of
participation in sunset reviews. Section 751(c)(4)(B) of the Act only
mandates an affirmative company-specific likelihood finding as a
consequence of a party electing to waive its participation in the
sunset review. Thus, the modified regulatory waiver requirements result
in elimination of any assumptions about likelihood because a party
waiving participation would have already indicated to the Department
that it was likely to dump or benefit from a countervailable subsidy if
the order were revoked.
Two commenters also noted that the regulations would not longer
specify how the Department will address the situation where a producer/
exporter does not participate in a sunset review. The commenters are
correct in part. While it is the statute that provides for
determinations on the basis of facts available where, inter alia, a
party does not provide requested information (section 776 of the Act),
there are specific provisions in the Department's regulations
concerning use of facts available in a sunset review (19 CFR
351.308(f)). As a general matter, the Department will make its order-
wide likelihood determination on the basis of the facts and information
available on the record of the sunset review which may include, where
appropriate, use of facts available as provided for in the statute and
regulations.
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, the Department is modifying 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 have eliminated paragraph
(d)(2)(iii) in its entirety.
One commenter argued that providing for filing of case briefs in
expedited reviews could eliminate the distinction between expedited and
full sunset reviews. The commenter proposed, instead, that the
regulations provide respondents with an opportunity to supplement their
substantive responses to correct identified deficiencies. We have not
adopted this suggestion. The central distinction between an expedited
and full sunset review remains. In a full sunset review, the
regulations provide that the Department will issue a preliminary
determination and allow comments on that determination; there is no
provision for issuance of a preliminary determination in an expedited
sunset review. Clarifying the basis for parties' participation in a
public hearing in an expedited sunset review does not change this
distinction. The commenter also suggested that if the Department
permits the filing of case briefs in an expedited review, it should
make a corresponding amendment to paragraph (e)(1)(ii)(C)(2) of 19 CFR
351.218. We agree and have eliminated certain language in paragraph
(e)(1)(ii)(C)(2) that could be construed as inconsistent with
permitting parties to file case briefs in expedited sunset reviews.
Classification
E.O. 12866
This final rule has been determined to be not significant under
E.O. 12866.
Administrative Procedures Act
The Department finds good cause to waive the 30-day delay in
effectiveness pursuant to 5 U.S.C. 553(d)(3) in order to complete
requirements mandated by the World Trade Organization (``WTO'')
Appellate Body by December 17, 2005. On December 17, 2004, the WTO
Appellate Body (``AB'') issued its findings regarding the sunset review
of the antidumping duty order on Oil Country Tubular Goods (``OCTG'')
from Argentina. The WTO-appointed arbitrator determined, with reference
to the Appellate Body report, that the United States must bring its
laws into compliance with the Antidumping Agreement and complete
another sunset review of the antidumping duty order on OCTG from
Argentina not later than December 17, 2005. The Department was informed
of this deadline date on June 7, 2005. On August 15, 2005 (70 FR
47738), the Department published a proposed rule to solicit comments on
proposed revisions to its regulations related to sunset reviews. In
addition, the Department initiated consultations for 60 days with the
relevant congressional committees in accordance with section 123 of the
Uruguay Round Agreements Act. After the publication of this final rule,
the Department still must initiate the sunset review, provide
interested parties with 30 days to submit their responses to the
Department's sunset questionnaire, analyze the responses, and make a
final likelihood determination in the sunset review before December 17,
2005. Thus, in order to meet the WTO-mandated implementation date and
to ensure that interested parties have an opportunity to participate
fully in the sunset review, the Department finds good cause to waive
the 30-day delay in effectiveness of the final rule and makes these
regulations effective on October 31, 2005, upon conclusion of the 60-
day congressional consultation period required by the Uruguay Round
Agreements Act.
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 final rule involves collection-of-information
requirements subject to the Paperwork Reduction Act, 44 U.S.C. Chapter
35. The requirements have been approved by OMB under control numbers
0625-0105 and 0625-0148.
E.O. 12612
This final 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 this final rule will not have a significant impact
on a substantial number of small entities. The factual basis for the
certification was published in the proposed rule and is not repeated
here. No comments were received regarding the economic impact of this
action. As a result, 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,
[[Page 62064]]
Reporting and recordkeeping requirements.
Dated: October 20, 2005.
Joseph A. Spetrini,
Acting Assistant Secretary for Import Administration.
0
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
0
1. Section 351.218 is amended by revising paragraphs (d)(2)(ii)
introductory text, (d)(2)(iv)(C), (e)(1)(ii)(B) introductory text,
(e)(1)(ii)(B)(3), and (e)(1)(ii)(C)(2), and removing and reserving
paragraph (d)(2)(iii), as follows:
Sec. 351.218 Sunset reviews under section 751(c) of the Act.
* * * * *
(d) * * *
(2) * * *
(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:
* * * * *
(iv) * * *
(C) Base the final results of review on the facts available in
accordance with 351.308(f).
* * * * *
(e) Conduct of sunset review--(1) * * *
(ii) * * *
(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 351.308(f).
(C) * * *
(2) Normally will conduct an expedited sunset review and, not later
than 120 days after the date of publication in the Federal Register of
the notice of initiation, issue final results of review based on the
facts available in accordance with Sec. 351.308(f) (see section
751(c)(3)(B) of the Act and Sec. 351.221(c)(5)(ii)).
* * * * *
Subpart C--Information and Argument
0
2. Section 351.309 is amended by revising paragraph (c)(1)(iii) 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. 05-21468 Filed 10-28-05; 8:45 am]
BILLING CODE 3510-DS-P
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