[Federal Register Volume 77, Number 98 (Monday, May 21, 2012)]
[Rules and Regulations]
[Pages 29875-29884]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-12257]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
International Trade Administration
19 CFR Part 351
[Docket No. 110315198-1622-02]
RIN 0625-AA86
Modification to Regulation Concerning the Revocation of
Antidumping and Countervailing Duty Orders
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Department of Commerce (the Department) is amending its
regulations concerning the revocation of antidumping and countervailing
duty orders in whole or in part, and the termination of suspended
antidumping and countervailing duty investigations. This rule
eliminates the provision for revocation of an antidumping or
countervailing duty order with respect to individual exporters or
producers
[[Page 29876]]
based on those individual exporters or producers having received
antidumping rates of zero for three consecutive years, or
countervailing duty rates of zero for five consecutive years.
DATES: This Final Rule is effective June 20, 2012. This rule will apply
to all reviews that are initiated on or after June 20, 2012.
FOR FURTHER INFORMATION CONTACT: James Maeder at (202) 482-3330, Mark
Ross at (202) 482-4794, or Jonathan Zielinski at (202) 482-4384.
SUPPLEMENTARY INFORMATION:
Background
On March 21, 2011, the Department published a proposed rule
entitled ``Proposed Modification to Regulation Concerning the
Revocation of Antidumping and Countervailing Duty Orders'' that would
modify its regulations concerning the revocation of antidumping and
countervailing duty orders. (76 FR 15233). The Proposed Rule detailed
proposed changes to the Department's regulations that provide for
revocation of antidumping and countervailing duty orders. Certain
parties commented on the Proposed Rule, and the Department has
addressed those comments in the section below entitled ``Response to
Comments on the Proposed Rule''.
After analyzing and carefully considering all of the comments that
the Department received in response to the Proposed Rule, the
Department is adopting the proposed changes and is amending its
regulations to 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 rates of zero for three consecutive years, or
countervailing duty rates of zero for five consecutive years. The
Proposed Rule, comments received, and this Final Rule can be accessed
using the Federal eRulemaking Portal at http://www.regulations.gov
under Docket Number ITA-2011-0001.
Explanation of Changes to 19 CFR 351.222
To implement this rule, the Department is removing 19 CFR
351.222(b)(2) and (3) (dumping) and 351.222(c)(3) and (4)
(countervailable subsidy), and is making conforming changes as
necessary to the remaining paragraphs of 19 CFR 351.222. In addition,
the Department is amending 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). The Department
also is correcting a grammatical error in the third sentence of 19 CFR
351.222(a) (changing ``have'' to ``has'') and deleting 19 CFR
351.222(m) (a provision related to the Uruguay Round Agreements Act
that is no longer applicable). Finally, the Department is correcting a
typographical error in Sec. 351.222(e)(1)(i) that was identified in
comments on the Proposed Rule (changed ``the person'' to ``they''). The
Department is retaining, with some conforming changes, the sections of
19 CFR 351.222 that regard revocations of orders in whole. The
Department is not making any changes with respect to revocations as
described under paragraphs (g) through (l) of 19 CFR 351.222.
Response to Comments on the Proposed Rule
The Department received numerous comments on the Proposed Rule. As
indicated in the ``Background'' section, these comments can be accessed
using the Federal eRulemaking Portal at http://www.regulations.gov
under Docket Number ITA-2011-0001. The Department analyzed and
carefully considered all of the comments received. Below is a summary
of the comments, grouped by issue category and followed by the
Department's response.
Comment 1--U.S. Law, the WTO Agreements, and Company-Specific
Revocations
Some commenters assert that the use of the word ``may'' in Section
751(d)(l) of the Tariff Act of 1930, as amended (the ``Act''), makes it
clear that Congress fully delegated to the Department the authority to
prescribe the specific conditions under which revocation of an order,
whether in whole or in part, is appropriate. Some commenters also
assert that, given the availability of revocation and termination in
whole or in part in changed circumstances reviews and in whole in five-
year sunset reviews, respondents seeking relief from antidumping or
countervailing duties have more than ample opportunity to achieve that
goal without the company-specific avenue contained in 19 CFR
351.222(b)(2) and (b)(3) and 351.222(c)(3) and (c)(4). Further, in
addition to not being required by U.S. law, some parties assert that
the company-specific revocation provisions are not required by any of
the relevant WTO agreements. These parties assert that the WTO dispute
settlement panel in United States--Anti-Dumping Measures on Oil Country
Tubular Goods, paragraph 7.166, WT/DS282/R (adopted June 20, 2005)
found that 19 CFR 351.222(b)(2) of the Department's regulations was not
required by the United States' WTO obligations because there was an
opportunity for foreign companies to request revocation under the
changed circumstances review provisions (i.e., 19 CFR 351.222(g)).
Some commenters suggest that further cost savings can be attained
by withdrawing the regulations providing for country-wide revocations
at 19 CFR 351.222(b)(l) (dumping) and 351.222(c)(1) and (2)
(subsidies). They assert that, because as part of a sunset review the
Department already considers whether there has been continued dumping
or subsidies after issuance of an order, there is no compelling need to
maintain the company-specific and country-wide revocation procedures
set forth at 19 CFR 351.222(b) and (c).
One commenter asserts that when a company demonstrates that it has
not dumped its products over a certain period of time, the statue no
longer justifies binding that company to costly administrative reviews.
Another party asserts that the statute calls for revocation ``in whole
or in part'' based on administrative review results, and that this is
evidence of the drafters' intent to allow for other means of revocation
besides termination of the order itself. One party asserted that the
proposed rule, if implemented, would essentially eliminate the only
viable opportunity for revocation for individual exporters/producers.
Several commenters note that company-specific revocations have been a
practice for many years and assert that parties have relied upon that
practice in the expectation of being granted a revocation in part.
One commenter asserts that the additional risk inherent in the U.S.
retrospective system is partly offset by the possibility of revocation,
and requests that the Department take this into account in assessing
whether to eliminate company-specific revocations of antidumping and
countervailing duty orders. One party proposes that the Department's
current revocation provisions remain in effect for developing countries
as a form of special and differential treatment per Article 15 of the
Antidumping Agreement and Article 27 of the Agreement on Subsidies and
Countervailing measures. Another commenter contends that pursuant to
Articles 11 of the Antidumping Agreement, WTO members can only continue
an antidumping duty order ``to
[[Page 29877]]
the extent necessary'' to ``counteract dumping'' and must consider the
request of ``any interested party'' to ``examine whether the continued
imposition of the duty is necessary to offset dumping.'' Citing Amended
Regulation Concerning the Revocation of Antidumping and Countervailing
Duty Orders; Final Rule, 64 FR 51226 (September 22, 1999), the party
asserts that in that Federal Register notice the Department concluded
that Article 11.2 of the Antidumping Agreement requires the Department
to revoke an antidumping order for any exporter who demonstrates the
absence of dumping for three years, provided there is no evidence of
record to the contrary. One party asserts that the Department
vigorously defended company-specific revocations pursuant to Article 11
of the Antidumping Agreement in WTO litigation (citing report of WTO
Panel, United States--Antidumping duty on Dynamic Random Access Memory
Semiconductors from Korea, WT/DS99/R (adopted March 19, 1999) (DRAMS).
Response to Comments: Company-specific revocations are not required
by U.S. law, and thus, the elimination of such revocations is
consistent with U.S. law. Section 751(d)(1) of the Act states, in
relevant part, that the Department ``may revoke, in whole or in part *
* * .'' an antidumping or countervailing duty order. As several parties
note, the use of the word ``may'' indicates that revocations under this
section of the Act, whether in whole or in part, are not required.
Because the authority for company-specific revocations derives from
section 751(d)(1) of the Act, those types of revocations are not
mandatory.
We agree that section 751(d)(1) of the Act permits revocations
other than revocation of an order in whole, i.e., the provision permits
the Department to revoke an order in part. The Act does not, however,
define what it means to revoke an order in part. See Sahaviriya Steel
Ind. Pub Co. Ltd. v. United States, No. 2010, slip op. at 9-10 (Fed.
Cir. June 17, 2011). The Department has the discretion to interpret
this provision, and is not required to interpret it to include company-
specific revocations. The Proposed Rule does not affect other types of
revocations in part. For example, orders may continue to be revoked in
part if a party demonstrates a lack of interest in maintaining the
order on a certain type of subject merchandise by substantially all of
the domestic industry. See, e.g., Certain Pasta from Italy; Final
Results of Countervailing Duty Changed Circumstances Review and
Revocation, In Part, 76 FR 27634 (May 12, 2011).
Regarding the comment from several parties that company-specific
revocations have been a practice for many years and that parties have
relied upon that practice in the expectation of being granted a
revocation in part, the age of a practice does not affect the legality
of its elimination. Rather, the Department has the authority to change
its practice at any time provided that it gives a reasoned explanation
for its change. See Allegheny Ludlum Corp. v. United States, 346 F.3d
1368, 1373 (Fed. Cir. 2003) (Allegheny Ludlum). In the Proposed Rule
and the below sections entitled ``Comment 2--Whether the Department
Provided a Reasoned Analysis for the Proposed Rule'' and ``Comment 4--
Reasons for Discontinuing Company-Specific Revocations'', the
Department further explains its rationale for eliminating company-
specific revocations. Moreover, the Department has provided parties
ample notice of the change and opportunity to comment, and took those
comments into consideration for this Final Rule. In any event, the
statute and the regulation make clear that revocation is discretionary.
Regarding the comments from several parties that the Proposed Rule
would be contrary to the United States' obligations under the
Antidumping Agreement, we disagree. We note that the Act ``is intended
to bring U.S. law fully into compliance with U.S. obligations under
[the WTO Agreements].'' See SAA accompanying the URAA, HR Doc 316, Vol.
1, 103d Cong (1994) at 669. And, as explained above, U.S. law does not
require company-specific revocations. Moreover, there is nothing in
Article 11 of the Antidumping Agreement that requires company-specific
revocations. We also note that the Department is not eliminating its
practice, as codified in its regulations, of revoking an order in whole
based on the absence of dumping.
Regarding the argument that the Department defended company-
specific revocations pursuant to Article 11 of the Antidumping
Agreement in the DRAMS dispute, that dispute concerned the evidence
that could be relied upon in determining whether revocation was proper.
The Department's regulation at the time required it to determine that
sales of subject merchandise at below normal value in the future were
not likely. The Panel considered whether this ``not likely'' standard
was consistent with the requirements of Article 11.2 of the Antidumping
Agreement, and determined that it was not. This dispute was not about
whether company-specific revocations were required by the Antidumping
Agreement, and the Panel's findings did not involve that issue.
Finally, with regard to the suggestion that the company-specific
revocation regulations remain in effect for developing countries as a
form of special and differential treatment per Article 15 of the
Antidumping Agreement and Article 27 of the Agreement on Subsidies and
Countervailing measures, neither Article requires company-specific
revocations, and we have not adopted this suggestion.
Comment 2--Whether the Department Provided a Reasoned Analysis for the
Proposed Rule
Several commenters assert that U.S. administrative law requires
that the Department provide a ``reasoned analysis'' for this proposed
change to the regulations, and that the Proposed Rule lacked a
``reasoned analysis'' because the Department did not explain why the
Proposed Rule is being undertaken and why the facts and circumstances
that underlay the existing revocation policy should be disregarded.
They assert that, because the Department has not provided a reasoned
analysis or the basic factual assumptions underlying the Proposed Rule,
interested parties have been denied a meaningful opportunity to
comment. One of these parties cites Motor Veh. Mfrs. Ass'n v. State
Farm Ins., 463 U.S. 29, 42, in support of its assertion that U.S.
administrative law requires that the Department provide a ``reasoned
analysis'' for this proposed change to the regulations. It argues
further that pursuant to the U.S. Supreme Court ruling in FCC v. Fox
Television Stations, Inc., 556 U.S. 502 (2009), ``a reasoned
explanation is needed for disregarding facts and circumstances that
underlay or were engendered by the prior policy.'' The same party cites
that in a prior rulemaking exercise the Department stated that it ``has
consistently considered that an absence of dumping for three
consecutive years was indicative that a foreign respondent was not
likely to sell at less than normal value in the future.'' See Proposed
Regulation Concerning Revocation of Antidumping Duty Orders; Notice of
Proposed Rulemaking, 64 FR 29818 (June 3, 1999). It contends that in
the Proposed Rule the Department made no effort to refute this
statement, and that by not explaining the proposed change the
Department's proposal runs afoul of the Administrative Procedures Act.
The party also asserts that because the Department has not provided a
reasoned analysis or the basic factual
[[Page 29878]]
assumptions underlying the proposed change, interested parties have
been denied a meaningful opportunity to comment.
Response to Comments: The Department explained its reasons for
eliminating company-specific revocations in the Proposed Rule.
Specifically, the Department stated that it was proposing the
elimination of company-specific revocations because: (1) The existing
regulation requires the Department to expend additional resources in
conducting administrative reviews where a request for company-specific
revocation is being considered; (2) only a small fraction of the
companies the Department reviews are ultimately found to be eligible
for a company-specific revocation; (3) 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 subject entries; and (4) many of the companies for which
reviews have been requested may not have the opportunity to amass the
three antidumping rates of zero percent or five countervailing duty
rates of zero percent necessary to be eligible for a company-specific
revocation because the Department frequently is not able to examine all
companies under review. The Department further stated that ``[r]ather
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.''
The Department may change its practice at any time as long as it
provides a reasoned explanation for the change. See Allegheny Ludlum.
Here, the Department provided a reasoned explanation. The Department
explained the burden on its resources that company-specific revocation
reviews entail. It is reasonable for the Department to make changes in
response to its resource constraints. See Pakfood Public Co. Ltd. v.
United States, 753 F. Supp 2d 1334 (Ct. of International Trade 2011)
(holding that administrative convenience is a valid reason for a change
in practice).
The Department has not ignored the circumstances that supported the
existence of the regulation in the first place, but rather has
determined that it is no longer appropriate to continue the practice in
light of current resources for the reasons described in the Proposed
Rule.
Comment 3--Effective Date
Some commenters ask that the Department adopt and implement the
proposed change to the revocation regulations immediately (i.e., make
the change applicable to all administrative reviews currently pending
before the Department). Others request that the Department continue to
allow for revocations in all ongoing reviews in which a revocation
request has been made. One commenter suggests that the Department
``grandfather in'' any company that had reviews of itself initiated
prior to the adoption of this rule to give them the opportunity to earn
three zeros and, ultimately, revocation. Another party expresses
concern that the proposal could undermine legitimate expectations of
exporters, given uncertainty over entry into force of the proposed
change.
Response to Comments: As indicated in the DATES section above, this
Final Rule will apply to all reviews that are initiated on or after
June 20, 2012. The Department believes that this is a fair and
reasonable approach to the effective date issue for this particular
change. Importantly, implementing the Final Rule in this manner will
provide parties that have requested revocation in ongoing reviews the
opportunity to complete those reviews and obtain a revocation should
they meet the regulatory requirements in effect when that review was
initiated.
Comment 4--Reasons for Discontinuing Company-Specific Revocations
a. Conserve Resources
Some commenters agree with the Department's assertion that,
pursuant to the existing regulation, the Department is required to
expend additional resources, including additional mandatory
verifications, in conducting administrative reviews when company-
specific revocations are being considered. They assert, therefore, that
the change will help to conserve resources as the Department will save
money by not having to conduct ``mandatory verifications.'' They also
argue that the Department will have fewer requests for review, as
companies that are already subject to low deposit rates will be less
likely to request a review and there will be less of an incentive for
companies to ``engineer'' sales for purposes of achieving revocation,
rather than for normal commercial considerations. The parties contend
that the Department will also save resources by not having to conduct
the changed circumstance reviews that are currently needed to determine
whether an exporter, once revoked, needs to be reinstated in the order.
Finally, they contend that removal of the country-wide revocation
procedures is permissible and would result in further cost savings.
Another party cites to burdens on the U.S. government that are
created by circumvention and evasion of trade relief with respect to
certain trade remedies, and asserts that such circumstances demonstrate
the importance of the proposed changes to the revocation regulations.
It asserts that the individual exporter exclusions provided for under
the regulations at issue substantially complicate U.S. Customs and
Border Protection's responsibilities for enforcement of antidumping
orders, and cites to certain duty evasion issues that the U.S.
government experienced while administering certain antidumping
measures. It contends that company-specific exclusions can also
necessitate a significant allocation of resources by the domestic
industry to monitor shipments, and try and prevent circumvention of the
trade relief.
Some commenters assert that revocations actually reduce
administrative burdens by eliminating the need for administrative
reviews of companies that are revoked from an antidumping or
countervailing duty order, and that by continuing to grant company-
specific revocations the Department will free up resources to review
other companies. One party asserts that there is no reason to presume
that the availability of revocations increases the number of
proceedings the Department must undertake. For example, it contends
that in a case with a small number of exporters to the U.S. market,
revocations could reduce the Department's case load. Other commenters
assert that it would be an inefficient use of resources to review
companies over and over when they have demonstrated that they do not
engage in dumping. A few parties contend that the Proposed Rule will
consume more resources because companies will never have a chance for
revocation and will bear the expense and burden of participating in
more reviews. Some commenters request that the Department find other
ways to reduce burdens so that it is able to continue to administer
company-specific revocations under the regulations at issue (e.g.,
create a more efficient and less rigorous process for administrative
reviews, make verifications discretionary, allow exporters to certify
they are not dumping when they believe that to be the case).
[[Page 29879]]
One party argues that because the number of companies who are
eligible for a company-specific revocation is so small, the additional
resources, including additional mandatory verifications that the
Department cites as a reason for the proposed change, cannot be so
great. It also asserts that over time the proposed change will increase
the resources expended on reviews as companies continue to request
reviews to receive zero or low duty rates. The same party asserts that
if the company-specific revocation regulations remain in effect, the
Department and other U.S. federal agencies (e.g., Customs and Border
Protection) may ultimately save resources as the pool of respondents
subject to review diminishes over time.
Another party asserts that since money is collected from respondent
parties in the form of antidumping duties and it is relatively
inexpensive to conduct a revocation proceeding, the Department should
not eliminate the revocation provision in the name of resource
constraints. It argues that any additional resources that may be
required for considering a revocation request are minimal, and suggests
that the Department instead conserve resources by limiting the ability
of domestic producers to request verification.
Response to Comments: The Department believes that the change will
result in savings as it will no longer have to expend the additional
resources associated with the conduct of administrative reviews,
particularly mandatory verifications, when requests for company-
specific revocations are being considered. In addition, the Department
anticipates cost savings from not having to conduct changed
circumstances reviews currently needed to determine whether an
exporter, once excluded, should be reinstated in the order.
With regard to various conflicting arguments that the change will
result in either a decrease or an increase in the number of reviews
that are requested and, therefore, that cost savings may or may not
actually be realized, we find them to be based on speculation as to the
motivations of individual parties who may request reviews. Pursuant to
19 CFR 351.213(b), an administrative review of an exporter or producer
may be requested by a domestic interested party, a foreign government,
an exporter or a producer, or an importer. The Department is in no
position to determine for any given proceeding what a particular
party's motivations would be in deciding to request a review and how
the change may influence its decision. However, the Department would
note that there would be no reason for a respondent, with a zero or de
minimis cash deposit rate, to request another administrative review but
for the possibility of revocation.
Regarding the comment suggesting the elimination of the country-
wide revocation procedures as an additional means to save resources,
the Proposed Rule and this Federal Register notice only pertain to
company-specific revocations and the issues the Department has
experienced and hopes to resolve by eliminating those types of
revocations. The Final Rule does not include any changes to the parts
of the revocation regulations that concern country-wide revocations.
With regard to the suggestion that company-specific revocations
should be eliminated because they may be tied to circumvention or duty
evasion issues that necessitate a significant allocation of resources
by the domestic industry to monitor shipments, we have not relied on
this claim as a basis for our decision to implement the proposed rule
since we do not have evidence of increased burdens associated with such
monitoring.
With regard to the suggestion that the Department conserve
resources by limiting the ability of domestic producers to request
verifications, we find that our current regulations provide appropriate
guidance and flexibility for the conduct of verifications requested by
domestic producers in light of the Department's resource
considerations. Finally, if necessary, we may in the future consider
additional cost-savings measures in addition to the savings associated
with the changes made by this rule.
b. A Small Portion of Reviewed Companies Have Been Found To Be Eligible
for a Company-Specific Revocation
Several commenters assert that the small portion of companies found
to be eligible for company-specific revocation is not a relevant factor
to cite in support of changing the regulations. One commenter asserts
that such a statistic is simply a consequence of the difficulty of
satisfying the requirements for revocation. Another asserts that this
measurement is not relevant to the antidumping orders on exports from
its country because a number of companies were revoked from one of
those antidumping orders. Several commenters argue that the small
number of company-specific revocations supports that the existing
revocation regulations do not have a material impact on the
Department's resources.
Response to Comments: We disagree with the assertion that the
number of reviewed companies that the Department has ultimately found
to be eligible for a company-specific revocation is not an important
factor to cite in support of modifying 19 CFR 351.222. As indicated in
the Proposed Rule, 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. Moreover, in evaluating this matter in terms of
the burden and administrative procedures involved, it is important to
consider that many of the companies that request a company-specific
revocation under the regulations at issue go through the process of
being reviewed but are, ultimately, not found to be eligible for a
company-specific revocation. We examined the review requests for orders
that were in effect between 2005 and 2009 and learned that roughly 75%
of the company-specific revocation requests that we received ultimately
were denied. Many of the companies that requested partial revocation
under the regulations at issue did not obtain one because either: (1)
The company was still dumping; (2) the company did not make sales in
commercial quantities; (3) the company withdrew its request for
revocation and/or review after we initiated the review; (4) a
revocation of the entire order via the sunset review process took place
prior to completion of our review of the company-specific revocation
request; or (5) the company was not selected as a respondent because
the Department did not have the resources to proceed with a company-
specific examination. Thus, with the status quo, the Department can
expect to continue to expend significant resources examining
unsuccessful requests for company-specific revocations. Instead, the
Department has determined, in part, to eliminate the disconnect between
the large amount of resources expended conducting these company-
specific revocation reviews and the few companies that benefit.
We also disagree with the assertion by one commenter that, with
respect to antidumping orders on exports from its country, the small
fraction of the reviewed companies the Department ultimately found
eligible for a company-specific revocation is not a relevant factor to
cite in support of modifying 19 CFR 351.222. The commenter indicates
that a number of companies
[[Page 29880]]
were revoked from one of the antidumping orders on imports from its
country. Nonetheless, in evaluating and deciding on this particular
change to the regulations our focus has been on all antidumping and
countervailing duty orders/measures that are administered by the
Department, not just revocation requests for one particular measure,
industry, or country.
c. This Amendment Will Not Change the Amount of Duties Applied to
Entries Subject to Antidumping or Countervailing Duty Orders Where the
Duty Rates Remain Zero
Some parties agree with the Department's reliance on this factor.
Others argue that, when companies maintain antidumping or
countervailing duty rates of zero percent, both the Department and
interested parties are expending resources on reviews of companies that
are unlikely to dump or receive countervailable subsidies in the
future. Another party asserts that the Department's rationale does not
take into account the unpredictability and costs imposed by antidumping
and countervailing duty orders. One party comments that the Department
appears to be saying that its proposal is revenue neutral because it
would not affect the amount of duties applied, and asserts that the
amount of revenue collected in antidumping or countervailing duties is
not a matter within the jurisdiction of the Department.
Response to Comments: The Department's statement is a matter of
fact--if a company maintains an antidumping or countervailing duty rate
of zero, its duty liability will not change as a result of this
amendment. As for arguments concerning the expenditure of resources in
the conduct of reviews for companies that maintain zero dumping or
countervailing duty rates, such arguments are based on conjecture about
the future pricing behavior of those companies and future subsidization
by governments. It also assumes that interested parties will request
reviews of those companies. We are not in a position to predict such
future behavior. The Department's point is that, as long as a company
maintains a dumping or countervailing duty rate of zero, it will incur
no antidumping or countervailing duty liability. The Department's
reference to this change not impacting the amount of duties collected
was simply an effort to consider the burden of the proposal on parties,
and not in consideration of the impact on U.S. revenue.
d. Many Companies May Not Have the Opportunity To Amass the Three AD
Rates of Zero Percent or Five CVD Rates of Zero Percent
Certain commenters favoring the proposed change to the revocation
regulations assert that it will result in a more equitable
administration of the antidumping and countervailing duty proceedings
for both the petitioners and respondents. One of these commenters
claims that company-specific revocations can improperly advantage
certain producers or exporters over others, and that such inequities
also create difficulties for petitioners in ensuring that orders are
effective in eliminating injurious dumping and subsidization.
Several commenters assert that the current company-specific
revocation regulations do a good job of promoting equity by revoking
orders against companies that are not dumping or receiving
countervailable subsidies. They also assert that when such revocations
result in one less company to review, it permits companies not
previously examined an opportunity to be selected for examination. One
commenter contends that there is no reason to deny the important
benefits of company-specific revocations simply because it may be
impractical in every case. The party also asserts that there are other
benefits in the antidumping and countervailing duty regime that are
applied unevenly (notably, the ability to obtain one's own margin, as
opposed to an average of other rates). Some commenters suggest that the
Department adopt new procedures that will allow for all interested and
eligible exporters to participate in reviews to the extent necessary to
achieve revocation. A few commenters assert that certain factors we
cite in support of this change to the revocation regulations do not
apply to the unique circumstances of trade remedy measures on their
exports (e.g., certain cases involve a ``manageable'' number of
companies and, therefore, the Department should not be concerned with
companies in those cases not having an opportunity to be reviewed and
amass the requisite zero rates).
Response to Comments: The Department continues to find that this
change to the regulations will, in general, result in a more equitable
administration of the antidumping and countervailing duty proceedings.
In particular, and as explained in the Proposed Rule, many of the
companies for which reviews are 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. See Proposed Rule, 76 FR 15234. This is
because it is often not practicable for the Department to examine all
companies for which reviews have been requested, and where such
circumstances exist, the Act permits the Department to limit the number
of companies it individually examines. 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 comments and various factors noted in the Proposed Rule
and this Federal Register notice, the Department is eliminating the
company-specific revocation regulations. Moreover, by eliminating the
need to obtain two/four subsequent reviews for revocation, the
Department anticipates that fewer companies with zero or de minimis
deposit rates will request reviews, freeing up limited resources to
consider the antidumping or countervailing duty rates of other
companies.
With regard to the suggestion that the Department develop or adopt
new company-specific revocation procedures, the Department has not
identified any new procedures for company-specific revocations that
would address all the reasons it has for discontinuing such
revocations. As for the commenters that assert that our reasons for
discontinuing company-specific revocations do not apply to a particular
antidumping or countervailing duty order, we do not find that any sort
of differential treatment would be appropriate.
e. Trade Law Enforcement Initiative
One commenter states that the genesis of this proposal was an
August 2010 announcement by the Secretary of Commerce to strengthen
trade enforcement with a particular focus on illegal import practices
from non-market economy countries. The commenter contends that there is
little correlation between illegal import practices from non-market
economies and the Proposed Rule, and asserts that the Secretary's
concerns are more appropriately addressed by other items mentioned in
the August 2010 announcement.
Response to Comments: This proposal was identified in the August
26, 2010, announcement of a Trade Law Enforcement Package to strengthen
the administration of the nation's trade
[[Page 29881]]
remedy laws. In making the announcement about this initiative,
addressing illegal import practices from non-market economies was
highlighted as an objective, but that objective is secondary to the
overall purpose of the initiative which is to strengthen the
administration of the nation's trade remedy laws. Further, in the
Proposed Rule, and in the above sections of this notice, the Department
provides a detailed explanation and information about the factors that
warrant this amendment. Those factors and the rule change are not
specific to imports from any one country or type of economy (market or
non-market).
Comment 5--Company-Specific Revocations Award Good Behavior
Several commenters assert that the Department should maintain the
existing rules for company-specific revocations as a direct incentive
to induce individual foreign firms to adjust prices and eliminate
dumping or receiving subsidies. Another party comments that such
revocations give respondents hope that if they comply with the United
States antidumping and countervailing duty laws, their efforts may be
recognized and rewarded by revocation. Another party asserts that
company-specific revocations ensure that U.S. manufacturers, retailers
and consumers are not denied access to fairly traded goods.
Response to Comments: While we appreciate that companies may wish
to retain the opportunity to be revoked from an order, as we noted
under Comment 1, there is no obligation under U.S. law or the WTO
Agreements to provide for such company-specific revocations. Moreover,
if a foreign firm stops dumping or receiving countervailable subsidies,
it will eliminate its liability for antidumping and countervailing
duties, and U.S. manufacturers will have full access to its fairly
traded goods. Finally, the antidumping and countervailing duty laws do
not exist to reward any behavior. Instead, these laws exist to provide
a remedy for injurious market-distorting unfair trade practices. The
imposition of a remedial duty discourages such practices to the extent
they are found to exist. As noted above, by maintaining a zero dumping
margin or zero subsidy rate, companies avoid liability for these
duties.
Comment 6--Impact of the Proposed Change on the Economy and Trade
Several commenters request that the Department not change its
revocation policy until it conducts a review of the impact of the
change on consuming industries and other parties that utilize imports
that are subject to antidumping or countervailing duty orders. They
assert that such parties will be negatively affected as a result of the
Department performing administrative reviews of individual companies
that would have otherwise been revoked from an order. One commenter
asserts that the proposed change would restrict the ability of U.S.
retailers to provide consumers with a variety of high-quality products
at affordable prices, undermine U.S. competitiveness, put U.S. jobs at
risk, and undermine the Administration's goal of doubling U.S. exports.
Response to Comments: With respect to the comment about consuming
industries and other parties that utilize imports that are subject to
antidumping or countervailing duty orders, 5 U.S.C. 605(b) requires
that the Department consider the ``economic impact on a substantial
number of small business entities'' which includes such parties. The
Department provided the analysis required by 5 U.S.C. 605(b) when it
issued the Proposed Rule. See Proposed Rule, 76 FR at 15234. More
specifically, the Department explained that 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. We also believe that in considering the economic impact that
this change may have, it is important to take into account the fact
that less than two percent of all imports of goods into the United
States are subject to antidumping or countervailing duties, and only a
very small portion of those imports will ever be affected by this
change to the revocation regulations. For these reasons, we continue to
find that this change to the revocation regulations will not have a
significant economic impact.
Comment 7--Calculation of the Margin for Non-Selected Companies
One commenter urges that, in light of this regulatory change, the
Department should consider carefully its methodology for calculating
the rate that is assigned to respondents that are not selected for
individual review when the Department limits its examination in an
administrative review. It notes that when the Department limits its
examination to the largest exporters, it applies to the non-examined
companies the average of the individual margins assigned to the
mandatory respondents, except for any margins that are zero, de
minimis, or based on adverse facts available. It also notes that when
all of the mandatory respondents receive margins that are zero, de
minimis or based on adverse facts available, the Department bases the
margin for the non-selected respondents on the most recently calculated
affirmative margin from a previous administrative review. It asserts
that this situation is likely to arise with far greater frequency once
zeroing in administrative reviews is eliminated and the revocation
regulations are modified. It also asserts that over time, a margin for
non-selected companies identified in this manner could be based on a
margin calculated several years in the past and it would no longer be a
reasonable approximation of the pricing behavior of non-selected
respondents.
Response to Comments: With regard to the Department's practice or
methodology for calculating the rate that is assigned to respondents
that are not selected for individual review when the Department limits
its examination, we believe it would be premature to try and address
that issue in the context of a change to the revocation regulations. It
would be more appropriate to evaluate that issue in the context of
future antidumping or countervailing duty proceedings.
Comment 8--Zeroing in Relation to Company-Specific Revocations
One company cites to the possible elimination of zeroing in AD
reviews (see Antidumping Proceedings: Calculation of the Weighted
Average Dumping Margin and Assessment Rate in Certain Antidumping
Proceedings, 75 FR 81533 (December 28, 2010)), and asserts that if the
Department stops zeroing, one would expect that a significant number of
exporters may qualify for revocation in the years following the change.
Another company suggests that eliminating zeroing while retaining the
possibility of revocation should materially reduce the Department's
workload after a few years; however, if the Department eliminates both
zeroing and revocation, then the Department will waste its resources in
repetitious reviews of companies with zero margins.
Response to Comments: On February 14, 2012, in response to several
WTO dispute settlement reports, the Department adopted a revised
methodology which allows for offsets when making average-to-average
comparisons in reviews. See Antidumping Proceedings: Calculation of the
Weighted-Average Dumping Margin and Assessment Rate in Certain
Antidumping Duty Proceedings; Final Modification, 77 FR 8101 (February
14,
[[Page 29882]]
2012). (``Final Modification for Reviews''). The Final Modification for
Reviews makes clear that the revised methodology will apply to
antidumping duty administrative reviews where the preliminary results
are issued after April 16, 2012. The revision to our calculation
methodology in antidumping duty administrative reviews was made to
implement certain findings by the WTO Appellate Body with respect to
that methodology in several disputes. See United States-Laws,
Regulations and Methodology for Calculating Dumping Margins, WT/DS294/
R, WT/DS294/AB/R, adopted May 9, 2006; United States-Measures Related
to Zeroing and Sunset Reviews, WT/DS322/R, WT/DS322/AB/R, adopted Jan.
23, 2007; United States-Final Anti-Dumping Measures on Stainless Steel
From Mexico, WT/DS344/R, WT/DS344/AB/R, adopted May 20, 2008; United
States-Continued Existence and Application of Zeroing Methodology, WT/
DS350/R, WR/DS350/AB/R, adopted Feb. 19, 2009. The Department's
decision to change the revocation regulations has been made without
regard to, and irrespective of, the change in our calculation
methodology as a result of the implementation. Moreover, the comments
regarding the possible effects of the proposed revision to our
calculation methodology in antidumping duty reviews are based solely
upon speculation.
Comment 9--Revocations of AD and CVD Measures--In Whole
Several parties indicate that with respect to revocation or
termination in whole, the Department's regulations would remain
substantively unchanged and, therefore, in addressing whether or not to
award revocation or termination in whole, the Department will need to
consider whether ``all exporters and producers'' have not dumped for at
least three consecutive years or have not applied for or received any
net countervailable subsidy for at least five consecutive years,
respectively. In light of the fact that the Department often reviews
individually only a small number of the foreign exporters and producers
covered by an order, they ask the Department to consider and address
how these prerequisites for revocation or termination in whole are to
be satisfied. They propose that each foreign exporter or producer must
demonstrate affirmatively that it met these conditions for the
prescribed number of years before revocation or termination in whole
will be granted by the Department. One of these parties also asked the
Department to consider how to address revocation requests when all
mandatory respondents receive rates of zero percent for the requisite
number of years under Sec. 351.222(b)(1) and (c)(1)-(2); in
particular, whether these rates would be assigned to all non-reviewed
companies and, if so, whether the order in whole would then be eligible
for revocation. One commenter suggests that in addition to withdrawing
the regulations establishing company-specific revocations at 19 CFR
351.222(b)(2) and (3) and 351.222(c)(3) and (4), the Department should
withdraw its regulations providing for country-wide revocations.
Response to Comments: We generally agree with the commenters'
assertion that each foreign exporter or producer would have to
demonstrate that it met the regulatory requirements for the prescribed
number of years before revocation or termination in whole could be
granted by the Department. With regard to considering how to address
revocation requests when all mandatory respondents receive rates of
zero percent for the requisite number of years under Sec. Sec.
351.222(b)(1) and (c)(1)-(2), we believe it is premature to decide
whether such circumstances would warrant a revocation of an order in
whole. We will address any such scenarios as they arise in the context
of future antidumping or countervailing duty proceedings. In addition,
we have not adopted the suggestion that in addition to withdrawing the
regulations establishing company-specific revocations at 19 CFR
351.222(b)(2) and (3) and 351.222(c)(3) and (4), the Department should
withdraw its regulations providing for country-wide revocations at 19
CFR 351.222(b)(l) (dumping) and 351.222(c)(1) and (2) (subsidies). The
Proposed Rule and this Federal Register notice only pertain to company-
specific revocations and the issues the Department has experienced and
hopes to resolve by eliminating those types of revocations. See the
Proposed Rule and Comment 4 above.
Comment 10--Reinstatement of AD and CVD Measures
Several commenters requested that the Department not withdraw the
subsections of the revocation regulations that deal with the
reinstatement of partially revoked orders (i.e., 19 CFR
351.222(b)(2)(i)(B), (e)(1)(iii) (antidumping duty orders) and
(c)(3)(i)(B), (e)(2)(iii)(D) (countervailing duty orders)). They
contend that if the subsections are removed, it is unclear what
recourse would be available to the Department in the event that
companies, for which orders have already been partially revoked, resume
making U.S. sales at dumped prices or resume benefitting from
countervailable subsidies in violation of trade remedy laws. They
suggest that in light of the proposed amendments to 19 CFR 351.222, the
Department should maintain the rules that would provide for the
reinstatement of partially revoked antidumping and countervailing duty
orders. One party suggests that the Department maintain the current
version of Sec. 351.222(b)(2)(i)(B), (c)(3)(i)(B), (e)(1)(iii), and
(e)(2)(iii)(D) in its regulations but clarify that they apply only to
orders that have been partially revoked prior to the effective date of
the change in regulations.
Response to Comments: We have not adopted the changes proposed by
these parties. Any company that has been revoked from an antidumping or
countervailing duty order will remain subject to its certified
agreement to be reinstated with respect to that order if the Department
finds it to have resumed dumping or to be benefitting from a
countervailable subsidy. The modification does not absolve the company
from its obligations under its existing agreement.
Comment 11--Clerical Error in the Proposed Rule
Two commenters assert that the Department made a typographical
error in Sec. 351.222(e)(1)(i) of the proposed amendment to the
revocation regulations. One commenter suggests that the term ``the
person'' may need to be changed to the plural form to conform to ``all
exporters and producers.'' The other suggests that the reference to
``the person'' be changed to ``the exporter or producer in each
instance.''
Response to Comments: We agree that there is a typographical error
in Sec. 351.222(e)(1)(i) of the Proposed Rule. The term ``the person''
needs to be in a plural form, so we have changed the term to ``they''.
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
[[Page 29883]]
number of small business entities. The factual basis for the
certification was published in the Proposed Rule. The Department
received comments regarding the factual basis for this decision, and
has summarized and responded to those comments in the above section of
this notice entitled ``Comment 4--Reasons for Discontinuing Company-
Specific Revocations''. Based upon the Department's analysis, as
discussed above, the factual basis used in the Proposed Rule to
determine that the rule, if promulgated, would not have a significant
impact on a substantial number of small business entities did not
change. As a result, a Final Regulatory Flexibility analysis is not
required and 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: May 15, 2012.
Paul Piquado,
Assistant Secretary for Import Administration.
For the reasons stated, 19 CFR part 351 is amended as follows:
PART 351--ANTIDUMPING AND COUNTERVAILING DUTIES
0
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.
0
2. In Sec. 351.222, revise paragraphs (a), (b), (c), (e), and (f),
remove paragraph (m), and redesignate paragraph (n) as paragraph (m) to
read as follows:
Sec. 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.
* * * * *
(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 they 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 Sec. 351.213(e)(2), the
[[Page 29884]]
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 Sec. 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 Sec. 351.221 regarding the conduct of an
administrative review, the Secretary will:
(i) Publish with the notice of initiation under Sec.
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 Sec. 351.307;
(iii) Include in the preliminary results of review under Sec.
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 Sec.
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 Sec.
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 Sec. 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.
* * * * *
[FR Doc. 2012-12257 Filed 5-18-12; 8:45 am]
BILLING CODE 3510-DS-P