2011-6019. Proposed Modification to Regulation Concerning the Revocation of Antidumping and Countervailing Duty Orders

AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

ACTION:

Proposed Modification to Regulation; Request for Comments.

SUMMARY:

The Department of Commerce (“the Department”) proposes to modify our regulations which govern the revocation of antidumping and countervailing duty orders, in whole or in part, and the termination of suspended antidumping and countervailing duty investigations. The modification, if adopted, would eliminate the provision for revocation of an antidumping or countervailing duty order with respect to individual exporters or producers based on those individual exporters or producers having received antidumping margins of zero for three consecutive years, or countervailing duty rates of zero for five consecutive years.

DATES:

To be assured of consideration, comments must be received no later than April 20, 2011.

Submission of Comments: As specified above, to be assured of consideration, comments must be received no later than April 20, 2011. All comments must be submitted through the Federal eRulemaking Portal at http://www.regulations.gov, Docket No. ITA-2011-0001, unless the commenter does not have access to the Internet. Commenters that 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-AA86.

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 [phone], e-mail address: [e-mail].

FOR FURTHER INFORMATION CONTACT:

James Maeder at [phone], Mark Ross at [phone], or Jonathan Zielinski at [phone].

SUPPLEMENTARY INFORMATION:

Background

The Department proposes to modify its regulations that provide for revocation of antidumping and countervailing duty orders pursuant to the Tariff Act of 1930, as amended (the Act). Currently, 19 CFR 351.222 provides requirements and procedures for the Department to determine in the context of an administrative review, based on an absence of dumping or countervailable subsidization, whether to (1) revoke an order in whole, or (2) partially revoke an order with respect to an individual exporter or producer. The Department proposes to eliminate the latter category of revocations as it pertains to revocations from an antidumping or countervailing duty order based on individual exporters or producers having received antidumping margins of zero for three consecutive years, or countervailing duty rates of zero for five consecutive years. The Department will retain, with some conforming modifications, the former category of revocations. The Department is not proposing any change with respect to revocations as described under paragraphs (g) through (l) of 19 CFR 351.222. To implement this modification, the Department would withdraw 19 CFR 351.222(b)(2) and (3) (dumping) and 351.222(c)(3) and (4) (countervailable subsidy), and make conforming modifications as necessary to the remaining paragraphs of 19 CFR 351.222.

Company-specific revocations are not required by the Act. Accordingly, the Department has considered several factors in issuing this proposal. First, pursuant to the existing regulation, the Department is required to expend additional resources, including additional mandatory verifications, in conducting administrative reviews where a request for company-specific revocation is being considered. Second, while the Department annually conducts administrative reviews of hundreds of foreign companies subject to antidumping or countervailing duty orders, only a small fraction of the reviewed companies are ultimately found to be eligible for a company-specific revocation under the regulations at issue here. Third, to the extent that eligible companies maintain antidumping duty or countervailing duty rates of zero percent, the proposal would not change the amount of duties applied to entries subject to antidumping or countervailing duty orders. Finally, the Department has considered the fact that many of the companies for which reviews have been requested may not have the opportunity to amass the three antidumping rates of zero percent (demonstrating an absence of dumping for three consecutive years) or five countervailing duty rates of zero percent (demonstrating an absence of countervailable subsidies for five consecutive years) necessary to be eligible for a company-specific revocation. Pursuant to the Act, the Department frequently limits the examination of companies for which reviews have been requested, as it is not practicable to examine all companies. Companies not selected for review will normally receive an antidumping or countervailing duty rate based upon the average of the rates calculated for the individually reviewed companies. Rather than administering the company-specific revocation regulations in a manner that does not afford equitable opportunity to all companies to seek revocation, and in light of the additional factors noted, the Department proposes to eliminate the company-specific revocation regulations.

In addition, the Department proposes to clarify 19 CFR 351.222(f)(2) to make it clear that a request for revocation that does not conform with the requirements of paragraph (e) does not require the Secretary to undertake the actions provided for in paragraphs (f)(2)(i) through (f)(2)(vi). Finally, the Department proposes to correct a grammatical error in the third sentence of 19 CFR 351.222(a) (change “have” to “has”) and delete 19 CFR 351.222(m) (a transition rule related to the Uruguay Round Agreements Act that is no longer applicable).

Classification

Executive Order 12866

The rule has been determined to be not significant for purposes of 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. Although the Department is not able to estimate the number of small entities this proposed rule will affect, the Department anticipates that it will not be a substantial number. For example, while the Department annually conducts administrative reviews of hundreds of foreign companies subject to antidumping or countervailing duty orders, only a small fraction of the reviewed companies could be considered eligible for a company-specific revocation under the regulations at issue here (i.e., 19 CFR 351.222(b)(2) and (3) (dumping) and 351.222(c)(3) and (4) (countervailable subsidy)). In the past five years, despite conducting administrative reviews of well over five hundred companies, only 15 companies (of various sizes) have obtained a company-specific revocation under the relevant portions of 19 CFR 351.222. Also, in relation to the proposed rule's economic impact on small entities, the Department does not anticipate it will be significant because the proposed rule will have no effect on any antidumping or countervailing duty liability determined for any party. This is because the proposed rule does not involve any aspect of the calculation of an antidumping or countervailing duty margin. Rather, as explained above, the proposed rule eliminates the possibility for foreign exporters or producers to obtain company-specific revocations based upon an absence of dumping for three consecutive years or countervailable subsidization for five consecutive years. Consequently, the amount of duties applied to entries subject to antidumping or countervailing duty orders will not change as a result of the proposed rule.

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

Dated: March 8, 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 § 351.222, revise paragraphs (a), (b), (c), and (f), remove paragraph (m), and redesignate paragraph (n) as paragraph (m) to read as follows:

§ 351.222

Revocation of orders; termination of suspended investigations.

(a) Introduction. “Revocation” is a term of art that refers to the end of an antidumping or countervailing proceeding in which an order has been issued. “Termination” is the companion term for the end of a proceeding in which the investigation was suspended due to the acceptance of a suspension agreement. Generally, a revocation or termination may occur only after the Department or the Commission has conducted one or more reviews under section 751 of the Act. This section contains rules regarding requirements for a revocation or termination; and procedures that the Department will follow in determining whether to revoke an order or terminate a suspended investigation.

(b) Revocation or termination based on absence of dumping. (1) In determining whether to revoke an antidumping duty order or terminate a suspended antidumping investigation, the Secretary will consider:

(i) Whether all exporters and producers covered at the time of revocation by the order or the suspension agreement have sold the subject merchandise at not less than normal value for a period of at least three consecutive years; and

(ii) Whether the continued application of the antidumping duty order is otherwise necessary to offset dumping.

(2) If the Secretary determines, based upon the criteria in paragraphs (b)(1)(i) and (ii) of this section, that the antidumping duty order or suspension of the antidumping duty investigation is no longer warranted, the Secretary will revoke the order or terminate the investigation.

(c) Revocation or termination based on absence of countervailable subsidy. (1)(i) In determining whether to revoke a countervailing duty order or terminate a suspended countervailing duty investigation, the Secretary will consider:

(A) Whether the government of the affected country has eliminated all countervailable subsidies on the subject merchandise by abolishing for the subject merchandise, for a period of at least three consecutive years, all programs that the Secretary has found countervailable;

(B) Whether exporters and producers of the subject merchandise are continuing to receive any net countervailable subsidy from an abolished program referred to in paragraph (c)(1)(i)(A) of this section; and

(C) Whether the continued application of the countervailing duty order or suspension of countervailing duty investigation is otherwise necessary to offset subsidization.

(ii) If the Secretary determines, based upon the criteria in paragraphs (c)(1)(i)(A) through (C) of this section, that the countervailing duty order or suspension of the countervailing duty investigation is no longer warranted, the Secretary will revoke the order or terminate the suspended investigation.

(2)(i) In determining whether to revoke a countervailing duty order or terminate a suspended countervailing duty investigation, the Secretary will consider:

(A) Whether all exporters and producers covered at the time of revocation by the order or the suspension agreement have not applied for or received any net countervailable subsidy on the subject merchandise for a period of at least five consecutive years; and

(B) Whether the continued application of the countervailing duty order or suspension of the countervailing duty investigation is otherwise necessary to offset subsidization.

(ii) If the Secretary determines, based upon the criteria in paragraphs (c)(2)(i)(A) and (B) of this section, that the countervailing duty order or the suspension of the countervailing duty investigation is no longer warranted, the Secretary will revoke the order or terminate the suspended investigation.

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(e) Request for revocation or termination—(1) Antidumping proceeding. During the third and subsequent annual anniversary months of the publication of an antidumping order or suspension of an antidumping investigation, any exporter or producer may request in writing that the Secretary revoke an order or terminate a suspended investigation under paragraph (b) of this section if the person submits with the request:

(i) Certifications for all exporters and producers covered by the order or suspension agreement that they sold the subject merchandise at not less than normal value during the period of review described in Sec. 351.213(e)(1), and that in the future the person will not sell the merchandise at less than normal value; and

(ii) Certifications for all exporters and producers covered by the order or suspension agreement that, during each of the consecutive years referred to in paragraph (b) of this section, they sold the subject merchandise to the United States in commercial quantities.

(2) Countervailing duty proceeding. (i) During the third and subsequent annual anniversary months of the publication of a countervailing duty order or suspension of a countervailing duty investigation, the government of the affected country may request in writing that the Secretary revoke an order or terminate a suspended investigation under paragraph (c)(1) of this section if the government submits with the request its certification that it has satisfied, during the period of review described in § 351.213(e)(2), the requirements of paragraph (c)(1)(i) of this section regarding the abolition of countervailable subsidy programs, and that it will not reinstate for the subject merchandise those programs or substitute other countervailable subsidy programs;

(ii) During the fifth and subsequent annual anniversary months of the publication of a countervailing duty order or suspended countervailing duty investigation, the government of the affected country may request in writing that the Secretary revoke an order or terminate a suspended investigation under paragraph (c)(2) of this section if the government submits with the request:

(A) Certifications for all exporters and producers covered by the order or suspension agreement that they have not applied for or received any net countervailable subsidy on the subject merchandise for a period of at least five consecutive years (see paragraph (c)(2)(i) of this section);

(B) Those exporters' and producers' certifications that they will not apply for or receive any net countervailable subsidy on the subject merchandise from any program the Secretary has found countervailable in any proceeding involving the affected country or from other countervailable programs (see paragraph (c)(2)(ii) of this section); and

(C) A certification from each exporter or producer that, during each of the consecutive years referred to in paragraph (c)(2) of this section, that person sold the subject merchandise to the United States in commercial quantities.

(f) Procedures. (1) Upon receipt of a timely request for revocation or termination under paragraph (e) of this section, the Secretary will consider the request as including a request for an administrative review and will initiate and conduct a review under § 351.213.

(2) When the Secretary is considering a request for revocation or termination under paragraph (e) of this section, in addition to the requirements of § 351.221 regarding the conduct of an administrative review, the Secretary will:

(i) Publish with the notice of initiation under § 351.221(b)(1), notice of “Request for Revocation of Order” or “Request for Termination of Suspended Investigation” (whichever is applicable);

(ii) Conduct a verification under § 351.307;

(iii) Include in the preliminary results of review under § 351.221(b)(4) the Secretary's decision whether there is a reasonable basis to believe that the requirements for revocation or termination are met;

(iv) If the Secretary decides that there is a reasonable basis to believe that the requirements for revocation or termination are met, publish with the notice of preliminary results of review under § 351.221(b)(4) notice of “Intent to Revoke Order” or “Intent to Terminate Suspended Investigation” (whichever is applicable);

(v) Include in the final results of review under § 351.221(b)(5) the Secretary's final decision whether the requirements for revocation or termination are met; and

(vi) If the Secretary determines that the requirements for revocation or termination are met, publish with the notice of final results of review under § 351.221(b)(5) notice of “Revocation of Order” or “Termination of Suspended Investigation” (whichever is applicable).

(3) If the Secretary revokes an order, the Secretary will order the suspension of liquidation terminated for the merchandise covered by the revocation on the first day after the period under review, and will instruct the Customs Service to release any cash deposit or bond.

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