E6-18193. Procedures for Importation of Supplies for Use in Emergency Relief Work

AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

ACTION:

Final rule.

SUMMARY:

The Department of Commerce (“the Department”) hereby establishes procedures for importation of supplies for use in emergency relief work free of antidumping and countervailing duties, as authorized under section 318(a) of the Tariff Act of 1930, as amended (“the Act”) (19 U.S.C. 1318(a)). Such supplies would be for use in emergency relief work related to an emergency declared by the President.

DATES:

This rule is effective November 29, 2006.

FOR FURTHER INFORMATION CONTACT:

Stacy J. Ettinger, Office of the Chief Counsel for Import Administration, room 3622, U.S. Department of Commerce, 1401 Constitution Avenue, NW., Washington, DC, 20230; telephone: [phone].

SUPPLEMENTARY INFORMATION:

Background

Section 318(a) of the Act (19 U.S.C. 1318(a)) gives the Secretary of the Treasury authority, on a temporary basis, to respond immediately where the President declares the existence of an emergency. Specifically, the Secretary may “permit ... the importation free of duty of ... supplies for use in emergency relief work.” This authority, insofar as it encompasses antidumping and countervailing duties, was delegated to the Secretary of Commerce in 1979, pursuant to Reorg. Plan No. 3 of 1979.¹ Consistent with the Reorg. Plan, we have promulgated this rule in consultation with the Department of Treasury and the Department of Homeland Security. The rule establishes procedures for importation of supplies for use in emergency relief work free of antidumping and countervailing duties, as authorized under section 318(a) of the Act.

Discussion of Comments

On June 22, 2006, the Department published a proposed rule and request for public comment concerning procedures for importation of supplies for use in emergency relief work free of antidumping and countervailing duties, as authorized under section 318(a) of the Act (71 FR 35846, June 22, 2006). In finalizing these procedures, the Department carefully considered each of the comments it received. The following is an explanation of the provisions of the rule, as well as a summary of the comments received and the Department's responses to those comments.

Section 358.101

Section 358.101 sets forth the scope of Part 358, procedures for importation of supplies for use in emergency relief work free of antidumping and countervailing duties, as authorized under section 318(a) of the Act.

Several commenters expressed support for the establishment of procedures for importation of supplies for use in emergency relief work free of antidumping and countervailing duties. The commenters argued that the temporary suspension of antidumping and countervailing duties during an emergency could provide needed relief after natural disasters and would have a positive impact on emergency relief and reconstruction efforts by reducing costs and ensuring availability of building and other emergency relief supplies. Other commenters argued that there is no need for such a rule or that there have been no circumstances where antidumping or countervailing duties have been shown to affect or delay the importation of emergency supplies. One commenter argued that the rule would exacerbate the previously demonstrated injury to the domestic industry by permitting an additional influx of unfairly traded goods.

The Department is committed to strong enforcement of U.S. trade laws and will do everything within the parameters prescribed by Congress to ensure that domestic industries obtain effective relief from dumped and subsidized imports. Congress also, however, has authorized the Secretary to permit the importation of supplies for use in relief work free of antidumping and countervailing duties during a declared emergency. This rule establishes the procedures for importation of such supplies as authorized by Congress and is intended to facilitate access to needed resources in the event of a natural disaster or other emergency. Any waiver of antidumping and countervailing duties would be both temporary and limited to supplies for use in emergency relief work related to the emergency declared by the President. The Department does not believe that such temporary limited waivers will exacerbate injury to the domestic industry. Nevertheless, we recognize that we have no experience with the new waiver mechanism and that it is possible that the application of the waiver mechanism could have unintended consequences with regard to the protection afforded to U.S. industries found to be injured by dumped and/or subsidized imports. Therefore, we have added section 358.104, which provides that the Secretary will review and issue a report on the first five years of the operation of the waiver mechanism. The report will consider the impact of the application of the waiver mechanism on U.S. parties injured by dumped and/or subsidized imports.

Several commenters argued that the Department has no legal authority to promulgate a rule allowing for temporary waiver of antidumping and countervailing duties because Title VII of the Act does not provide such authority and/or the waiver authority under section 318(a) of the Act does not explicitly reference or encompass antidumping or countervailing duties. We do not agree with the commenters' assertions. The Department's authority to promulgate this rule arises under section 318(a) of the Act. Specifically, section 318(a) gives the Secretary of the Treasury authority, on a temporary basis, to respond immediately where the President declares the existence of an emergency. Under these circumstances, the Secretary may permit the importation free of duty of supplies for use in emergency relief work. Insofar as it encompasses antidumping and countervailing duties, this authority was explicitly delegated to the Secretary of Commerce in 1979, pursuant to section 5(a)(1)(E) of Reorg. Plan No. 3 of 1979. Regardless of whether Title VII of the Act permits temporary waiver of antidumping and countervailing duties, such waiver authority is specifically and explicitly contemplated under section 318(a) of the Act.

One commenter argued that, based on certain language in Reorg. Plan No. 3, any rule regarding the application of section 318 of the Act must be “jointly promulgated” between the Department and the Department of Homeland Security (“DHS”). The Department disagrees with the commenter's interpretation of Reorg. Plan No. 3. Nothing in section 318(a) or in Reorg. Plan No. 3 requires that this rule be “jointly promulgated” with DHS or any other agency. Rather, section 5(a)(1)(E) of the Reorg. Plan provides that all functions of the Secretary of Treasury under section 318(a) of the Act² with respect to antidumping and countervailing duties, were transferred to the Secretary of Commerce “to be exercised in consultation with the Secretary of the Treasury.” In the course of promulgating this rule, the Department has, in fact, consulted with Treasury, as well as with the Bureau of Customs and Border Protection (“CBP”) and DHS. These interagency consultations satisfy the requirements of Reorg. Plan No. 3.

One commenter suggested that there was no need for the rule because there are other emergency powers already available to the President and the federal government. The commenter is correct that there are other emergency powers available to the President and other federal agencies. For example, in addition to the authorities delegated to the Secretary of Commerce pursuant to Reorg. Plan No. 3, section 318 of the Act contains provisions that provide relief from duties other than countervailing and antidumping duties and also from other measures affecting importations. Section 322 of the Act also provides for other emergency relief authority with regard to importations. We note that this rule (Part 358) is in no way intended to limit the emergency relief available through other provisions of the Act, or limit the authority of the Secretary of the Treasury, or those to whom that authority has been delegated, to grant emergency relief of duties or take any other measure necessary to respond to a emergency or other threat pursuant to sections 318, 322, or any other provisions of the Act. However, the fact that there are other available emergency powers does not vitiate the need for this rule. The Department has determined to promulgate this rule in order to prescribe the process by which the Department will exercise its authority under section 318(a) of the Act.

One commenter argued that the rule does not go far enough and that U.S. law should be amended to establish a “no or short supply” exception to the application of antidumping and countervailing duties in the form of either a public-interest test or a lesser-duty rule. Another commenter expressed concern that the rule could lead to an unnecessary short-supply provision and create a loophole benefitting its Brazilian orange juice competitors. One commenter proposed that the Department clarify that the rule does not apply to Mexican cement.

This rule serves the limited function of establishing procedures for importation of supplies for use in emergency relief work free of antidumping and countervailing duties, in the context of and related to an emergency declared by the President. The rule does not limit the definition of supplies for use in emergency relief work to products for which there is insufficient U.S. production. In other words, the rule is not a so-called “short-supply” provision. The rule also does not exempt specific products (such as orange juice or cement) from consideration as supplies for use in emergency relief work for the reason that what supplies might be needed for use in emergency relief work will depend on the circumstances of a specific declared emergency and the particular needs of persons affected by that emergency.

Section 358.102

Section 358.102 sets forth the definition of terms that are used in Part 358. With respect to the definition of “supplies for use in emergency relief work,” some commenters proposed that emergency relief work be broadly defined and that the rule clarify that eligible supplies include, for example, supplies for repairs or reconstruction work made necessary by the emergency. Other commenters argued that the definition of “supplies for use in emergency relief work” is broader than the definition authorized by Congress. These commenters argued that section 318(a) of the Act limits supplies for use in emergency relief work to humanitarian goods provided on a short-term basis, specifically food, clothing, and medical and surgical supplies. The commenters proposed that the rule be redrafted to reflect this limited definition.

The Department's proposed definition of “supplies for use in emergency relief work” was intended to reflect the statutory authority to permit the duty-free importation of supplies for use in emergency relief work. However, some commenters found the proposed definition too limited, while others found the proposed definition too broad. Given the mixed reaction to the proposed definition, the Department has modified the definition of “supplies for use in emergency relief work.” The definition will now track the language of section 318(a) of the Act. The Department does not agree with commenters' assertions that the statute “limits” supplies for use in emergency relief work to humanitarian goods provided on a short-term basis such as food, clothing, medical and surgical supplies. The statute also permits duty waiver for “other supplies for use in emergency relief work.” As a general proposition, identification of needed supplies will be dependent on the circumstances of an actual declared emergency. While clothing and medical supplies might be needed for emergency relief work in certain circumstances, there may be other circumstances where supplies related to repair or reconstruction work are equally or more needed.

Section 358.103

Section 358.103 sets forth the procedures for importation of supplies for use in emergency relief work free of antidumping and countervailing duties.

Where the President, acting under section 318 of the Act, authorizes the Secretary to permit the importation of supplies for use in emergency relief work, the Secretary will consider a request for importation free of antidumping and countervailing duties under the conditions set forth in paragraph (a). Paragraph (a)(1) requires that a request be in writing, identifies persons that may submit a request, indicates the number of copies required for filing, and states that a request must be filed with the Department's Central Records Unit. Paragraph (a)(2) identifies the information required to be provided in a request.

Two commenters proposed that the rule set time limits for submission of waiver requests, e.g., within 60 days after the date of declaration of the emergency and for the entry of merchandise, e.g., within 60 days after the date the waiver request is granted. The Department has not adopted a time limit for submission of waiver requests as suggested by the commenters. After declaring an emergency, and acting under section 318 of the Act, the President can authorize the Secretary to permit importation of supplies for use in emergency relief work free of antidumping and countervailing duties. Opportunity to request, and the Secretary's determination to permit such importations are appropriate throughout the continuance of the declared emergency. A 60-day time limit on requests for importation of emergency relief supplies would frustrate the utility of the waiver mechanism by not allowing for differing circumstances or the duration of an actual emergency.

The Department does, however, see merit in setting a deadline for entry of relief supplies once the Secretary has made a determination to permit such entry. A limited entry period is consistent with the entry-specific nature of a determination by the Secretary to waive duties, as well as the temporary duration of a declared emergency. Therefore, with one modification, the Department has adopted the 60-day time frame proposed by the commenters. Specifically, we have modified the proposal to allow a flexible approach to specific situations in which entry of duty-waiver merchandise will not occur within the 60-day time frame. This might occur, for example, where three shipments of duty-waiver merchandise are scheduled to enter the United States over a three month period, i.e., one shipment per month. This flexible approach is reflected in our use of the word “normally” in new paragraph (c) of section 358.103, which provides that duty-waiver merchandise must enter the United States normally within 60 days after the date on which the Secretary notifies the person who submitted the request or the merchandise will be subject to antidumping and/or countervailing duties, as applicable.

One commenter proposed that, given the changing needs and conditions during an emergency, the Department should include some flexibility in the information requirements set forth in paragraph (a)(2). The commenter also suggested that the Department should ensure that the paperwork required not frustrate the utility of this mechanism at a time of dire need. The Department acknowledges that changing needs and conditions during an emergency might affect a requester's ability to provide all the information required for a waiver request at the time the request is submitted. However, the Department will need to have sufficient information to make a decision on a waiver request. The Department does not consider that the information requirements set forth in paragraph (a)(2) are particularly onerous, but welcomes any comments on reporting burdens associated with the information required for a waiver request.

Other commenters proposed additional information requirements such as specification of the intended emergency use, identification of the U.S. customer, identification of the emergency relief-related project, and/or designation of the geographical limits for use of the merchandise. Two commenters argued that price, included in the list of required information, is not an appropriate element of any analysis of potential waiver because any price effects resulting from the emergency would similarly affect both fairly and unfairly traded goods. One commenter suggested that required information include a demonstration that the merchandise for which duty-free importation is requested be in short supply.

As discussed above, this rule is not a short supply provision, and duty waiver on emergency relief supplies is not dependent on whether there is insufficient U.S. production. For this reason, the Department has not adopted the suggestion that information required under paragraph (a)(2) include a demonstration that there is insufficient U.S. production of the merchandise for which duty-free importation is requested. The Department has adopted, however, the essence of certain other suggestions regarding required information. In particular, the Department believes that identification of the person for whose account the merchandise will be brought into the United States, as well as designation of the geographical location at which the merchandise will be used, are useful pieces of information. We have modified paragraph (a)(2) to reflect these additions. Paragraph (a)(2) already provides for identification of the use to be made of the merchandise and, for this reason, we have not adopted the suggestion to include identification of the emergency relief-related project. Moreover, the term “emergency relief-related project” proposed by the commenter implies a formal, government-sponsored or -countenanced emergency relief project, which is not a limitation prescribed in this rule or in the statute. We also have not adopted the suggestion that price be excluded from the list of required information. The commenters assume that analysis of price effects is a factor in waiver requests. No such assumption is warranted. Price information may be relevant in subsequent administrative or new shipper reviews, for example, for purposes of both checking the completeness of respondents' reporting and providing an indication as to whether the merchandise was donated or sold.

Paragraph (b) provides that, if the Secretary determines to permit importation of particular merchandise free of antidumping and countervailing duties, the Secretary will notify the person who submitted the request and instruct CBP to allow entry of the merchandise without regard to antidumping and countervailing duties.

One commenter proposed that the Secretary allow importation of merchandise free of antidumping and countervailing duties only where necessary to meet an important need in emergency relief efforts, to address short-term immediate humanitarian needs, where short-term need cannot adequately be met through fairly traded merchandise, and in circumstances not likely to have any significant impact on the effectiveness of existing antidumping and countervailing duty orders or result in injury to a domestic industry. Another commenter proposed that importation of merchandise free of antidumping and countervailing duties should only be allowed where fairly traded merchandise cannot meet the short-term need. Other commenters proposed that the rule only allow for waiver of antidumping and countervailing duties on merchandise considered necessary for relief by the Federal Emergency Management Agency (“FEMA”). One commenter also suggested that the Department require that supplies for use in emergency relief work be donated, not sold.

We have not adopted these suggestions. This rule establishes the procedures for importation of supplies for use in relief work free of antidumping and countervailing duties during a declared emergency as authorized by Congress and is intended to facilitate access to needed resources in the event of a natural disaster or other emergency. What supplies might be needed for use in emergency relief work will depend on the circumstances of a specific declared emergency and the particular needs of persons affected by that emergency. While a FEMA list of needed emergency supplies, if created, could be instructive, the Department believes that it is appropriate for the Secretary to have maximum flexibility to review waiver requests in the context of a specific emergency and to make waiver determinations on an emergency-by-emergency basis. As discussed above, the Department does not believe that temporary limited waiver of antidumping and countervailing duties will exacerbate injury to the domestic industry. However, as set forth in new section 358.104, the Department will review the operation and impact of the waiver mechanism after five years. The Department also finds no reason to limit the definition of emergency relief supplies to only donated merchandise, as one commenter suggested, although the Secretary will consider whether the merchandise was donated or sold since that information is required to be included in a waiver request.

Certain commenters suggested that there should be specific and/or short time limits on temporary waivers of antidumping and countervailing duties to prevent inappropriate long-term use of such waivers. Other commenters suggested that a waiver specify the allowable geographic limits for use of the imported merchandise.

The Department agrees with these suggestions. To alleviate concerns about inappropriate long-term use of waivers, we have modified paragraph (b) to indicate that waiver of antidumping and countervailing duties on imports of merchandise for use in emergency relief work will be specific and limited to the merchandise explicitly identified in the waiver request. Pursuant to paragraph (a)(2), a waiver request must identify, inter alia, the quantity of the merchandise to be imported, the proposed date of entry, the destination of the merchandise, and the use to be made of the merchandise at the designated destination. In addition, as discussed above, we have added paragraph (c) to require that waiver merchandise enter the United States normally within 60 days after the date on which the Secretary grants a waiver request or such merchandise will be subject to antidumping and/or countervailing duties, as applicable.

Certain commenters proposed that the Department provide notice to, and an opportunity for, interested parties to comment on requests before the Secretary makes a determination to permit importation of particular merchandise for use in emergency relief work.

We have not adopted this proposal. The speed with which the Secretary may need to address requests for importation of emergency relief supplies will be dependent on the circumstances of an actual declared emergency. In certain situations, the Secretary may need to respond immediately and an opportunity for notice and comment could have a detrimental impact on persons in need of emergency relief supplies. The Department's regulations (19 CFR 351.104) already provide that the official record of each antidumping and countervailing duty proceeding will include material presented to the Secretary during the course of a proceeding, as well as determinations made by the Secretary, that pertain to the proceeding. As a result, requests for importation of emergency relief supplies and the Secretary's determination to permit importation, if any, will be included on the record of the relevant proceeding(s). In addition, we have added language to paragraph (b) stating that notification of a determination by the Secretary will be posted on our website.

Two commenters proposed that the Department be required to inform Congress about any application of the rule. The Department agrees that it is appropriate to inform Congress that it is establishing procedures for importation of supplies for use in emergency relief work free of antidumping and countervailing duties, as authorized by section 318(a) of the Act, and it will provide notice of this rulemaking upon publication. No changes to the rule are necessary.

Paragraph (d) indicates possible penalties where merchandise entered for use in emergency relief work is used in the United States for some other purpose. The merchandise may be subject to seizure or other penalty, including under section 592 of the Act (19 U.S.C. 1592). This paragraph had been numbered as paragraph (c) in the proposed rule.

One commenter proposed that, given the confused and unpredictable circumstances of a declared emergency, there should be a good-faith exception when merchandise is diverted away from the purpose identified in the initial request. The commenter suggested that financial penalties be limited to instances of bad-faith misuse of the duty-waiver mechanism. Other commenters proposed that there be stronger safeguards and/or oversight to ensure proper use of emergency supplies and/or to check on appropriate use after the fact. Several commenters suggested that importers should be required to file entry-specific certifications that the merchandise is for emergency relief. Some commenters proposed that the importer be subject to penalties for improper use of goods. Other commenters argued that the proposed rule does not include sufficient safeguards to prevent abuse by importers.

The Department agrees with commenters that there is a need to ensure appropriate use of the duty-waiver mechanism and imported emergency relief supplies. For this reason, as set forth in paragraph (a)(2), a request for duty waiver must include, inter alia, a detailed description of the merchandise, state the quantity to be imported, identify a proposed date of entry, and indicate the destination of the merchandise. In response to comments, we also have added the requirements that the request identify the person for whose account the merchandise will be brought into the United States and the use to be made of the merchandise at the designated destination. As discussed above, the Secretary's determination to grant a duty-waiver request will be specific to the described merchandise and stated entry date, use, and destination. The Secretary's determination also will be made available in the public record of the relevant proceeding(s) and notification of the determination will appear on the Department's website. Any party with specific concerns about improper use of particular imports of emergency relief supplies should contact the Department about those specific concerns. Based on receipt of such comments and on its own authority, the Department may consider the need for penalties or other action if specific instances of misuse arise. Paragraph (d) provides maximum flexibility in this regard because it does not limit the range of possible penalties for improper use.

The proposed rule clarified that merchandise entered for use in emergency relief work is subject to Department reporting requirements in antidumping and countervailing duty administrative reviews, but that such merchandise will be excluded from the calculation of assessment and cash deposit rates. In the final rule, these two provisions are set forth in paragraphs (e) and (f)(1), respectively. In addition, in paragraph (e) we have added a reference to new shipper reviews to clarify that duty-waiver merchandise also is subject to Department reporting requirements in new shipper reviews.

One commenter argued that subjecting merchandise entered for use in emergency relief work to Department reporting requirements in antidumping and countervailing duty reviews creates a burden of unnecessary reporting and recordkeeping in an emergency situation. The Department disagrees with the commenter's assertion. We expect that the data with respect to merchandise entered for use in emergency relief work already would be recorded in a producer's books as a matter of normal recordkeeping. With respect to duty-waiver merchandise, respondents would need to report only the data necessary to allow the Department to identify and account for the emergency relief transactions. In addition, the time period of the emergency and the period during which the relevant review (i.e., the review related to the period during which the duty-waiver merchandise was sold or donated in the United States) is conducted are not likely to be contemporaneous. Finally, the foreign producer responding to the Department's questionnaire in an administrative or new shipper review, and that producer's bookkeeping activities, are unlikely to have been directly affected by an emergency within the United States.

Certain commenters suggested that the rule clarify that duty-waiver merchandise does not count towards “commercial quantities” requirements in certain types of antidumping and countervailing duty proceedings. The commenter also suggested that the rule clarify the effect on suspension agreements and the effect on yearly quotas. We agree that we should clarify the treatment of merchandise entered for use in emergency relief work in certain other types of antidumping and countervailing duty proceedings and circumstances. Therefore, we have added paragraph (f) to section 351.103 to provide such clarification.

Paragraph (f)(1) clarifies that merchandise entered for use in emergency relief work will be excluded from the calculation of assessment and cash deposit rates in an administrative or new shipper review. Previously, this clarification was reflected in paragraph (d) of the proposed rule, although paragraph (f)(1) is modified to add a reference to new shipper reviews and a cross reference to the applicable statutory provision governing administrative and new shipper reviews. The remaining substance of paragraph (d) of the proposed rule is now reflected in paragraph (e) of the final rule, which provides that merchandise entered for use in emergency relief work is subject to Department reporting requirements in antidumping and countervailing duty administrative and new shipper reviews.

Paragraph (f)(2) is new and clarifies that merchandise entered for use in emergency relief work will not count for purposes of any of the “commercial quantities” requirements set forth in 19 CFR 351.222. Paragraph (f)(3) also is new and clarifies that such merchandise also will not count for purposes of the quantity allowed by, or revised price requirements established pursuant to, a suspension agreement under section 704 or section 734 of the Act.

Classification

E.O. 12866

This rule has been determined to be not significant under E.O. 12866.

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 rule involves collection-of-information requirements subject to the Paperwork Reduction Act, 44 U.S.C. Chapter 35. The information collection requirements in 19 CFR Part 358 are approved by OMB and assigned OMB control number 0625-0256. The public reporting burden for this collection of information is estimated at 10 total burden hours. This time is an estimate of the time required to complete a waiver request, review instructions, search existing data sources, gather and maintain the data needed, and complete and review the collection of information.

E.O. 12612

This rule does not contain federalism implications warranting the preparation of a Federalism Assessment.

Regulatory Flexibility Act

The Chief Counsel for Regulation at the Department certified to the Chief Counsel for Advocacy, Small Business Administration that this rule would not have a significant economic impact on a substantial number of small entities. The factual basis of this certification was published in the proposed rule and is not repeated here. No comments were received on the economic impact of this rule. As a result, no Final Regulatory Flexibility Analysis was prepared.

List of Subjects in 19 CFR Part 358

• Administrative practice and procedure
• Antidumping duties
• Business and industry
• Countervailing duties
• Emergency powers
• Reporting and recordkeeping requirements

Dated: October 20, 2006.

David M. Spooner,

Assistant Secretary for Import Administration.

For the reasons discussed in the preamble, the Department of Commerce adds 19 CFR Part 358 as follows:

PART 358—SUPPLIES FOR USE IN EMERGENCY RELIEF WORK

358.101

Scope.

358.102

Definitions.

358.103

Importation of supplies.

358.104

Report.

Authority: 19 U.S.C. 1318(a).

§ 358.101

Scope.

This part sets forth the procedures for importation of supplies for use in emergency relief work free of antidumping and countervailing duties, as authorized under section 318(a) of the Act.

§ 358.102

Definitions.

For purposes of this part:

Act means the Tariff Act of 1930, as amended.

CBP means the Bureau of Customs and Border Protection of the United States Department of Homeland Security.

Department means the United States Department of Commerce.

Order means an order issued by the Secretary under section 303, section 706, or section 736 of the Act.

Secretary means the Secretary of Commerce or a designee.

Supplies for use in emergency relief work means food, clothing, and medical, surgical, and other supplies for use in emergency relief work.

§ 358.103

Importation of supplies.

(a) Where the President, acting under section 318 of the Act, authorizes the Secretary to permit the importation of supplies for use in emergency relief work free of antidumping and countervailing duties, the Secretary shall consider requests for such importation under the following conditions:

(1) Before importation, a written request shall be submitted to the Secretary by the person in charge of sending the subject merchandise from the foreign country or by the person for whose account it will be brought into the United States. Three copies of the request should be submitted to the Secretary of Commerce, Attention: Import Administration, Central Records Unit, Room 1870, U.S. Department of Commerce, 1401 Constitution Avenue, NW., Washington, DC 20230.

(2) The request shall state the Department antidumping and/or countervailing duty order case number, the producer of the merchandise, a detailed description of the merchandise, the current HTS number, the price in the United States, the quantity, the proposed date of entry, the proposed port of entry, the mode of transport, the person for whose account the merchandise will be brought into the United States, the destination, the use to be made of the merchandise at the designated destination, and any other information the person would like the Secretary to consider.

(b) If the Secretary determines to permit duty-free importation of particular merchandise for use in emergency relief work, the Secretary will notify the person who submitted the request, instruct CBP to allow entry of the merchandise identified in the request submitted under paragraph (a) without regard to antidumping and countervailing duties, and post notification of the determination on the Department's website.

(c) Any subject merchandise entered under paragraph (b) of this section must enter the United States normally within 60 days after the date on which the Secretary notifies the person who submitted the request or the merchandise will be subject to antidumping and/or countervailing duties, as applicable.

(d) Any subject merchandise entered under paragraph (b) of this section which is used in the United States other than for a purpose contemplated for it by section 318(a) of the Act may be subject to seizure or other penalty, including under section 592 of the Act.

(e) Any subject merchandise entered under paragraph (b) of this section is subject to the Department's reporting requirements in its conduct of an antidumping and/or countervailing duty administrative or new shipper review, as applicable.

(f) Any subject merchandise entered under paragraph (b) of this section will be excluded from:

(1) The calculation of assessment and cash deposit rates in an administrative or new shipper review under section 751(a) of the Act;

(2) “Commercial quantities” under 19 CFR 351.222; and

(3) The quantity allowed by, or revised price requirements established pursuant to, a suspension agreement under section 704 or section 734 of the Act, as applicable.

§ 358.104

Report.

The Secretary will review and issue a report on the first five years of the operation of Part 358. The report will consider the impact of determinations to permit importation of particular merchandise for use in emergency relief work under this Part, on U.S. parties injured by dumped and/or subsidized imports.

Footnotes

1.  All functions of the Secretary of Treasury under this provision, with respect to the antidumping and countervailing duty functions, were transferred to Commerce pursuant to Reorg. Plan No. 3 of 1979, to be exercised in consultation with the Secretary of the Treasury. Reorg. Plan No. 3 is set out as notes under 19 U.S.C.A. 2171. Authority under section 318 of the Act was transferred to Commerce under section 5(a)(1)(E) of the Reorg. Plan.

2.  In 2002, Pub.L. 107-210, section 342(1), designated the former text of section 318 of the Act as subsection (a) of section 318 of the Act. Section 342(2) of Pub.L. 107-210 added new subsection (b) to section 318 of the Act.