[Federal Register Volume 63, Number 83 (Thursday, April 30, 1998)]
[Notices]
[Pages 23730-23733]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-11430]
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DEPARTMENT OF COMMERCE
International Trade Administration
[C-357-404]
Certain Textile Mill Products From Argentina; Final Results of
Changed Circumstances Countervailing Duty Review and Revocation of
Order
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
ACTION: Notice of final results of changed circumstances countervailing
duty review and revocation of order.
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SUMMARY: On April 2, 1996, the Department of Commerce initiated changed
circumstances reviews of the countervailing duty orders on Leather from
Argentina (55 FR 40212), Wool from Argentina (48 FR 14423), Oil Country
Tubular Goods from Argentina (49 FR 46564), and Carbon Steel Cold-
Rolled Flat Products from Argentina (49 FR 18006). The Department of
Commerce initiated these reviews in
[[Page 23731]]
order to determine whether, in light of the decision in Ceramica
Regiomontana v. United States, 64 F.3d 1579, 1582 (Fed. Cir. 1995), the
agency had the authority to assess countervailing duties on entries of
merchandise covered by these orders occurring after September 20,
1991--the date on which Argentina became a ``country under the
Agreement'' within the meaning of former section 303(a)(1) of the
Tariff Act of 1930, as amended (the Act) (19 U.S.C. 1303(a)(1) (1988;
repealed 1994)). In the final results of these reviews, the Department
of Commerce determined that, based upon the ruling in the Ceramica
case, it lacked the authority to assess countervailing duties on
unliquidated entries of merchandise covered by the four Argentine
orders occurring on or after September 20, 1991. See Final Results of
Changed Circumstances Countervailing Duty Reviews and Revocation and
Amended Revocation of Countervailing Duty Orders, (62 FR 41361).
As a result of the Ceramica decision and the changed circumstances
reviews, the Department of Commerce published an initiation and
preliminary results of changed circumstances review of the
countervailing duty order on Certain Textile Mill Products from
Argentina (63 FR 7125; February 12, 1998) in which it preliminarily
determined that it does not have the authority to assess countervailing
duties on unliquidated entries of merchandise covered by the order
occurring on or after September 20, 1991. The notice also announced the
Department's intention to revoke this order with respect to all
unliquidated entries of subject merchandise entered, or withdrawn from
warehouse, for consumption during the period May 18, 1992 through
December 31, 1994. (The order has been revoked on two previous
occasions. For a further discussion of these revocations and the
resulting period affected by this determination, see the Supplementary
Information section below).
We invited interested parties to comment on our preliminary
results, consideration of revocation, and intent to revoke the order.
We received no comments. Accordingly, our final results of changed
circumstance review remain the same as our preliminary results and the
Department is revoking this order with respect to unliquidated entries
of subject merchandise entered, or withdrawn from warehouse, for
consumption during the period May 18, 1992 through December 31, 1994.
EFFECTIVE DATE: April 30, 1998.
FOR FURTHER INFORMATION CONTACT: Anne D'Alauro or Maria MacKay, Office
of CVD/AD Enforcement VI, Import Administration, International Trade
Administration, U.S. Department of Commerce, 14th Street and
Constitution Avenue, N.W., Washington, D.C. 20230; telephone: (202)
482-2786.
SUPPLEMENTARY INFORMATION:
Applicable Statute and Regulations
Unless otherwise indicated, all citations to the statute are
references to the provisions effective January 1, 1995, the effective
date of the amendments made to the Act by the Uruguay Round Agreements
Act (URAA). In addition, unless otherwise indicated, all citations to
the Department's regulations are to the current regulations published
in the Federal Register on May 19, 1997 (62 FR 27296).
History of the Countervailing Duty Order on Textile Mill Products
From Argentina
The countervailing duty order on Certain Textile Mill Products from
Argentina was issued on March 12, 1985 pursuant to former section
303(a)(1) of the Act. Under former section 303, the Department of
Commerce (the Department) could assess (or ``levy'') countervailing
duties without an injury determination on two types of imports: (i)
dutiable merchandise from countries that were not signatories of the
1979 Subsidies Code or ``substantially equivalent'' agreements
(otherwise known as ``countries under the Agreement''), and (ii) duty-
free merchandise from countries that were not signatories of the 1947
General Agreement on Tariffs and Trade. See S. Rep. 249, 96th Cong. 1st
Sess. 103-06 (1979); H. Rep. No. 317, 96th Cong.; 1st Sess. 43, 49-50
(1979). At the time this order was issued, textile mill products from
Argentina were dutiable. Also at that time, Argentina was not a
``country under the Agreement.'' In short, U.S. law did not require an
injury determination as a prerequisite to the issuance of the order,
and none was provided.
On August 13, 1990, the Department revoked the countervailing duty
order on Certain Textile Mill Products from Argentina pursuant to
section 355.25(d)(4)(iii) of the Department's then-current regulations.
See Certain Textile Mill Products from Argentina (55 FR 32940). The
Department's decision to revoke the order was challenged before the
U.S. Court of International Trade (CIT). On March 24, 1992, the CIT
reversed the Department's decision, holding that a domestic interested
party had properly objected to the Department's intent to revoke the
countervailing duty order. See Belton Industries Inc. v. United States,
CIT Slip Op. 92-39 (March 24, 1992). In accordance with that decision,
on May 7, 1992, the CIT ordered the Department to rescind the
revocation and reinstate the countervailing duty order on certain
textile mill products from Argentina. Subsequently, two related appeals
were filed with the U.S. Court of Appeals for the Federal Circuit,
Belton Industries, Inc. v. United States, et al., CAFC Nos. 92-1419,-
1421, and -1451, and Belton Industries, Inc. v. United States, et al.,
CAFC Nos. 92-1452, and -1483. Because the United States withdrew its
appeal (No. 92-1421), and Argentina was not a party to the appeals, the
CIT decision became final and binding with respect to the order on
certain textile mill products from Argentina. Consequently, the
Department rescinded its revocation of the countervailing duty order on
certain textile mill products from Argentina and reinstated the order
on November 18, 1992, effective May 18, 1992. See Certain Textile Mill
Products from Argentina; Notice of Final Court Decision and Rescission
of Revocation of Countervailing Duty Order (57 FR 54368).
On March 1, 1994, the Department again published in the Federal
Register (59 FR 9727) its intent to revoke the countervailing duty
order on certain textile mill products from Argentina pursuant to 19
CFR 355.25(d)(4)(i)(1994) because no interested party had requested an
administrative review for at least four consecutive review periods. The
Department received a timely objection to the intended revocation from
the American Textile Manufacturers Institute (ATMI) and its member
companies as well as the Amalgamated Clothing and Textile Workers Union
(ACTWU).
The Department requested clarifying information from ATMI and ACTWU
regarding the like products their members produced. The Department
determined that ATMI and ACTWU did not qualify as interested parties
with respect to one like product category, ``Other Miscellaneous
Categories.'' Therefore, the Department revoked the order with respect
to that like product. See Certain Textile Mill Products from Argentina;
Determination to Amend Revocation, in Part, of the Countervailing Duty
Order (62 FR 41365).
As explained above, the countervailing duty order on certain
textile mill products from Argentina was issued pursuant to former
section 303. In the URAA, which amended the Act, section 303 was
repealed partly because the new Agreement on
[[Page 23732]]
Subsidies and Countervailing Measures prohibits the assessment of
countervailing duties on imports from a member of the World Trade
Organization without an affirmative injury determination. The URAA
added section 753 to the Act, which provided domestic interested
parties with an opportunity to request an injury investigation for
orders that had been issued pursuant to former section 303.
Because no domestic interested parties exercised their right under
section 753(a) of the Act to request an injury investigation on certain
textile mill products from Argentina, the U.S. International Trade
Commission made a negative injury determination with respect to this
order, pursuant to section 753(b)(4) of the Act. As a result, the
Department revoked this countervailing duty order, effective January 1,
1995, pursuant to section 753(b)(3)(B) of the Act. See Revocation of
Countervailing Duty Orders (60 FR 40,568).
The Ceramica Regiomontana v. United States (Ceramica) Decision
On September 6, 1995, the U.S. Court of Appeals for the Federal
Circuit (Federal Circuit) held, in a case involving imports of dutiable
ceramic tile from Mexico, that once Mexico became a ``country under the
Agreement'' on April 23, 1985 pursuant to the Understanding between the
United States and Mexico Regarding Subsidies and Countervailing Duties
(the Mexican MOU), the Department could not assess countervailing
duties on tile from that country under former section 303(a)(1) of the
Act. Ceramica, 64 F.3d at 1582. ``After Mexico became a `country under
the Agreement,' the only provision under which ITA could continue to
impose countervailing duties was section 1671.'' Id. One of the
prerequisites to the assessment of countervailing duties under 19
U.S.C. Sec. 1671 (1988), according to the Federal Circuit, is an
affirmative injury determination. See also Id. at Sec. 1671e. However,
at the time the countervailing duty order on ceramic tile was issued,
the requirement of an affirmative injury determination under U.S. law
was not applicable. Therefore, the Federal Circuit looked to see
whether the statute contained any transition rules when Mexico became a
country under the Agreement which might provide the order on tile with
the required injury test. Specifically, the court looked at section
104(b) of the Trade Agreements Act of 1979, Pub. L. No. 96-39 (July 20,
1979) (1979 Act).
Section 104(b) was designed to provide an injury test for certain
countervailing duty orders issued under former section 303 prior to the
effective date of the 1979 Act (which established Title VII and, in
particular, section 701 of the Act). However, in order to induce other
countries to accede to the 1979 Subsidies Code (or substantially
equivalent agreements), the window of opportunity was intentionally
limited. In order to qualify (i) the exporting nation had to be a
country under the Agreement (e.g., a signatory of the Subsidies Code)
by January 1, 1980, (ii) the order had to be in existence on January 1,
1980 (i.e., the effective date of Title VII), and (iii) the exporting
country (or in some instances its exporters) had to request the injury
test on or before January 2, 1983.
In Ceramica, the countervailing duty order on ceramic tile was
issued in 1982 and Mexico did not become a country under the Agreement
until April 23, 1985. Therefore, in the absence of an injury test and
the statutory means (under section 104 or some other provision) to
provide an injury test, the Federal Circuit held that the Department
could not assess countervailing duties on ceramic tile and would have
to revoke the order effective April 23, 1985 (i.e., the date Mexico
became a ``country under the Agreement''). Ceramica, 64 F.3d at 1583.
On September 20, 1991, the United States and Argentina signed the
Understanding Between the United States of America and the Republic of
Argentina Regarding Subsidies and Countervailing Duties (Argentine
MOU). Section III of that agreement contains provisions substantially
equivalent to the provisions in the Mexican MOU that were before the
Federal Circuit in the Ceramica case. Therefore, on April 2, 1996, the
Department initiated changed circumstances reviews of the
countervailing duty orders on Leather from Argentina (55 FR 40212),
Wool from Argentina (48 FR 14423), Oil Country Tubular Goods from
Argentina (49 FR 46564), and Carbon Steel Cold-Rolled Flat Products
from Argentina (49 FR 18006). Each of these orders had been issued
without an injury determination. The purpose of these reviews was to
determine whether the Department had the authority, in light of the
Ceramica decision, to assess countervailing duties on entries of
merchandise covered by the orders occurring on or after September 20,
1991--the date on which Argentina became a ``country under the
Agreement'' within the meaning of 19 U.S.C. Sec. 1303(a)(1) (1988;
repealed 1994). In the Final Results of Changed Circumstances
Countervailing Duty Reviews and Revocation and Amended Revocation of
Countervailing Duty Orders, (62 FR 41361) (Argentine Changed
Circumstances), published in the Federal Register on August 1, 1997,
the Department determined that, based upon the ruling in the Ceramica
case, it lacked the authority to assess countervailing duties on
entries of merchandise covered by the four Argentine orders occurring
on or after September 20, 1991.
Scope of the Review
Imports covered by this review are shipments of certain textile
mill products from Argentina. The Harmonized Tariff Schedule of the
United States (HTS) item numbers covered by the order are identified in
Attachment A of this notice.
Final Results of Changed Circumstances Countervailing Duty Review
and Revocation of the Order
In accordance with sections 751(b)(1) and 751(d) of the Act, and
sections 351.216 and 351.221(c)(3) of the Department's regulations, we
initiated this changed circumstances review on February 12, 1998.
Because we determined that expedited action was warranted, our
preliminary results were combined with the February 12, 1998 notice of
initiation. Based upon our analysis of the Ceramica decision and the
Argentine Changed Circumstances reviews, our preliminary results
determined that the order on Certain Textile Mill Products from
Argentina became entitled to an injury test as of September 20, 1991--
the date on which Argentina became a ``country under the Agreement''
within the meaning of 19 U.S.C. Sec. 1303(a)(1) (1988; repealed 1994).
Moreover, in the absence of an injury determination or the statutory
authority to provide an injury test, we further determined the
Department does not have the authority to assess countervailing duties
on unliquidated entries of certain textile mill products from Argentina
occurring on or after September 20, 1991. For these reasons, we
announced our intention to revoke this order with respect to all
unliquidated entries of subject merchandise entered, or withdrawn from
warehouse, for consumption during the period May 18, 1992 (the date on
which the order was reinstated pursuant to the Belton decision) through
December 31, 1994. The Department has previously revoked the
countervailing duty order on textile mill products from Argentina for
all entries occurring on or after January 1, 1995. See Revocation of
Countervailing Duty Orders (60 FR 40568).
Because we received no comments following our preliminary results
of
[[Page 23733]]
changed circumstances review and intent to revoke the order, our final
results remain unchanged. The revocation of this order applies to all
unliquidated entries of subject merchandise entered, or withdrawn from
warehouse, for consumption during the period May 18, 1992 through
December 31, 1994.
Therefore, we will instruct the U.S. Customs Service to liquidate
all unliquidated entries of the subject merchandise entered, or
withdrawn from warehouse, for consumption on or after May 18, 1992 and
on or before December 31, 1994, without regard to countervailing
duties. We also will instruct U.S. Customs to refund with interest any
estimated countervailing duties collected with respect to those
unliquidated entries.
This notice is published in accordance with section 751(b)(1) of
the Act (19 U.S.C. section 1675(b)(1)).
Dated: April 21, 1998.
Robert S. LaRussa,
Assistant Secretary for Import Administration.
Appendix A--C-357-404 HTS List for Certain Textile Mill Products
From Argentina
HTS Number
5111.1170; 5111.1960;1 5111.2090; 5111.3090; 5111.9090;
5112.1120; 5112.1990; 5112.2030; 5112.3030; 5112.9090; 5205.1110;
5205.1210; 5205.1310; 5205.1410; 5205.2400;2 5205.3100;
5205.3200; 5205.3300; 5207.1000; 5207.9000; 5407.9105; 5407.9205;
5407.9305; 5407.9405; 5515.1305; 5515.1310; 5801.3600; 6302.600010;
6302.600020; 6302.910005; 6302.910050; 6305.2000; 6305.9000
\1\ Coverage limited to fabric, value not over $19.84/kg.
\2\ Coverage limited to yarn, not exceeding 68 nm.
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[FR Doc. 98-11430 Filed 4-29-98; 8:45 am]
BILLING CODE 3510-DS-P
