[Federal Register Volume 78, Number 190 (Tuesday, October 1, 2013)]
[Proposed Rules]
[Pages 60240-60242]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-23646]
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DEPARTMENT OF COMMERCE
International Trade Administration
19 CFR Part 351
[Docket No. 130917809-3809-01]
RIN 0625-AA96
Non-Application of Previously Withdrawn Regulatory Provisions
Governing Targeted Dumping in Antidumping Duty Investigations
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
ACTION: Proposed rule and request for comments.
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SUMMARY: Import Administration proposes not to apply, upon the
effective date of this rule if implemented, the previously withdrawn
regulatory provisions governing targeted dumping in antidumping duty
investigations. Following the Court of International Trade's decision
in Gold East (Jiangsu) Paper Co. v. United States, Import
Administration is seeking comments from parties to clarify the status
of the previously withdrawn regulatory provisions with regard to
antidumping duty investigations. Import Administration also invites
comment on the effect of this proposed rulemaking on recent
modifications to its regulations concerning the calculation of the
weighted-average dumping margin and assessment rate in certain
antidumping proceedings.
DATES: To be assured of consideration, written comments must be
received no later than October 31, 2013.
ADDRESSES: All comments must be submitted through the Federal
eRulemaking Portal at http://www.regulations.gov, Docket No. ITA-2013-
0002, unless the commenter does not have access to the Internet.
Commenters that do not have access to the Internet may submit the
original and one electronic copy of each set of comments by mail or
hand delivery/courier. All comments should be addressed to Ronald K.
Lorentzen, Deputy Assistant Secretary for Import Administration, Room
1870, Department of Commerce, 14th Street and Constitution Ave. NW.,
Washington, DC 20230. Comments submitted to the Department will be
uploaded to the eRulemaking Portal at www.Regulations.gov.
The Department will consider all comments received before the close
of the comment period. The Department will not accept comments
accompanied by a request that part or all of the
[[Page 60241]]
material be treated confidentially because of its business proprietary
nature or for any other reason. All comments responding to this notice
will be a matter of public record and will be available on the Federal
eRulemaking Portal at www.Regulations.gov.
Any questions concerning file formatting, document conversion,
access on the Internet, or other electronic filing issues should be
addressed to Moustapha Sylla, Import Administration Webmaster, at (202)
482-4685, email address: [email protected].
FOR FURTHER INFORMATION CONTACT: James Maeder at (202) 482-3330;
Charles Vannatta at (202) 482-4036; or Melissa Brewer (202) 482-1096.
SUPPLEMENTARY INFORMATION:
Background
On December 10, 2008, the Department of Commerce (``the
Department'') withdrew certain regulatory provisions governing targeted
dumping in antidumping investigations. Withdrawal of the Regulatory
Provisions Governing Targeted Dumping in Antidumping Duty
Investigations, 73 FR 74930 (Dec. 10, 2008) (``Withdrawal Notice''). In
the Withdrawal Notice, the Department explained that in antidumping
duty investigations it normally calculates dumping margins by one of
two methods: (1) By comparing the weighted average of the normal values
to the weighted average of the export prices for comparable merchandise
(known as the average-to-average method); or (2) by comparing the
normal values of individual transactions to the export prices of
individual transactions for comparable merchandise (known as the
transaction-to-transaction method). Id. at 74930 (citing 19 U.S.C.
1677f-1(d)(1)(A)). The statute also provides for an exception to these
two comparison methods when the Department finds that there is a
pattern of export prices for comparable merchandise that differ
significantly among purchasers, regions, or periods of time, and where
such differences cannot be taken into account using one of the above-
described methods. Id. (citing 19 U.S.C. 1677f-1(d)(1)(B)). When these
criteria are satisfied, the Department may compare the weighted average
of the normal values to the export price of individual transactions for
comparable merchandise (known as the average-to-transaction method).
Id. In the Withdrawal Notice, the Department explained that in
promulgating the regulations that established criteria for analyzing
this issue, it ``may have established thresholds or other criteria that
may have prevented the use of this comparison methodology to unmask
dumping, contrary to the Congressional intent.'' Id. at 74931. For this
reason, the Department withdrew the targeted dumping regulations,
specifically 19 CFR 351.414(f) and (g), effective immediately. Id.
Since the Withdrawal Notice, the Department has not applied the
withdrawn regulations in antidumping duty investigations. No party has
challenged as a stand-alone claim that this rulemaking violated the
Administrative Procedure Act's (``APA'') requirements.
On June 17, 2013, the Court of International Trade issued an
opinion in Gold East (Jiangsu) Paper Co. v. United States, Ct. No. 10-
00371, Slip Op. 13-74 (June 17, 2013), remanding certain matters to the
Department. Among them, the Court of International Trade ordered the
Department, on remand, to reconsider its final determination in that
proceeding as it applies to Gold East (Jiangsu) Paper Co. and to apply
the withdrawn regulations. The Court disagreed with the Department's
determination that the regulations were not applicable to Gold East
(Jiangsu) Paper Co. in that antidumping investigation because the
regulations had been properly withdrawn. During the underlying
investigation, Gold East (Jiangsu) Paper Co. argued that the Department
had improperly withdrawn the targeted dumping regulations because it
did not satisfy the APA's notice and comment requirements.\1\ Gold East
(Jiangsu) Paper Co. claimed that the regulations were still in effect
and that the Department should apply the alternative comparison method
to only the sales that are targeted rather than to all sales. See 19
CFR 351.414(f)(2) (2007). The Department disagreed and determined that
the regulations were properly withdrawn in 2008 in the Withdrawal
Notice and, thus, did not apply to the underlying investigation.
Therefore, the Department, consistent with its practice following the
withdrawal of the regulations, applied the alternative comparison
method to all of Gold East (Jiangsu) Paper Co.'s sales. Gold East
(Jiangsu) Paper Co. appealed the Department's determination to apply
the alternative comparison method to all sales to the Court of
International Trade.
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\1\ See Certain Coated Paper Suitable for High-Quality Print
Graphics Using Sheet-Fed Presses from the People's Republic of
China: Final Determination of Sales at Less than Fair Value, 75 FR
59217 (Sept. 27, 2010), and Issues and Decision Memorandum at cmt.
3, as amended by Certain Coated Paper Suitable for High-Quality
Print Graphics Using Sheet-Fed Presses from the People's Republic of
China: Amended Final Determination of Sales at Less than Fair Value
and Antidumping Duty Order, 75 FR 70203 (Nov. 17, 2010) (``Final
Determination'').
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The Department continues to defend its position that the withdrawal
of the targeted dumping regulations in the Withdrawal Notice was proper
and that the withdrawn regulations are not operative. However, the
Department recognizes that the Court of International Trade in Gold
East (Jiangsu) Paper v. United States agreed with Gold East (Jiangsu)
Paper Co.'s argument that the regulations should be applied to its
dumping margin calculations in that proceeding because there was a
procedural defect in the rulemaking process that withdrew the targeted
dumping regulations. Therefore, without prejudice to the United States
government's right to appeal the decision in Gold East (Jiangsu) Paper
v. United States, or to argue in other cases before the Court of
International Trade that the withdrawn regulations should not be
applied in antidumping duty investigations after the withdrawal was
made effective in 2008, the Department has determined to issue this
proposed rule to clarify the status of the previously withdrawn
regulations pursuant to APA notice and comment procedures and to invite
comment.
Proposed Provision
The Department proposes to continue to not apply the withdrawn
provisions governing targeted dumping in antidumping investigations,
implemented previously through the Withdrawal Notice. This rulemaking
would be effective for proceedings initiated on or after 30 days
following the date of publication of the final rule.
The Department invites parties to comment on this proposed
rulemaking and the proposed effective date. Further, any party may
submit comments expressing its disagreement with the Department's
proposal and may propose an alternative approach. If any party believes
that the Department should reinstate the previously withdrawn
regulations, that party should explain how to reinstate the withdrawn
regulations and include suggestions on how to codify such
reinstatement, as well as any suggestions on the effective date.
The Department also invites comment on the effect of this proposed
rulemaking on recent modifications to 19 CFR 351.414. On February 14,
2012, the Department published Calculation of the Weighted-Average
Dumping Margin and Assessment Rate in Certain Antidumping Proceedings;
Final Modification, 77 FR 8101 (Feb. 14, 2012) (``Final Modification
for Reviews''). In
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the Final Modification for Reviews, the Department modified the
regulations governing comparison methods to be applied in antidumping
investigations and administrative reviews. The Final Modification for
Reviews revised 19 CFR 351.414, the section of the regulations that
previously included the withdrawn targeted dumping regulations. The
Final Modification for Reviews applies to preliminary results of review
issued after April 16, 2012.
Classifications
Executive Order 12866
It has been determined that this proposed rule is not significant
for purposes of Executive Order 12866 of September 30, 1993
(``Regulatory Planning and Review'') (58 FR 51735 (October 4, 1993)).
Paperwork Reduction Act
This proposed rule contains no new collection of information
subject to the Paperwork Reduction Act, 44 U.S.C. Chapter 35.
Executive Order 13132
This proposed rule does not contain policies with federalism
implications as that term is defined in section 1(a) of Executive Order
13132, dated August 4, 1999 (64 FR 43255 (August 10, 1999)).
Regulatory Flexibility Act
The Chief Counsel for Regulation has certified to the Chief Counsel
for Advocacy of the Small Business Administration (``SBA'') under the
provisions of the Regulatory Flexibility Act, 5 U.S.C. 605(b), that the
proposed rule would not have a significant economic impact on a
substantial number of small business entities. A summary of the need
for, objectives of, and legal basis for this rule is provided in the
preamble, and is not repeated here.
The entities upon which this rulemaking could have an impact
include foreign exporters and producers, some of whom are affiliated
with U.S. companies, and U.S. importers. IA currently does not have
information on the number of entities that would be considered small
under the Small Business Administration's size standard for small
business. However, some of these entities may be considered small
entities under that standard. Although this rule may impact small
entities, this rule is not expected to have a significant economic
impact. The administrative action proposed herein is a continuation of
the Department's practice. No additional compliance measures or
expenditure would be required of entities. Moreover, the previously
withdrawn regulations did not regulate the entities that practice
before the Department. Rather, the withdrawn regulations governed what
methodology the Department applied in a particular case. Specifically,
the withdrawn regulations instructed the Department on how to compare
normal value and export price or constructed export price under certain
factual scenarios. Therefore, the Department does not anticipate that
the proposed rule would have a significant economic impact on a
substantial number of small business entities. For this reason, an
Initial Regulatory Flexibility Analysis is not required and one has not
been prepared.
Dated: September 20, 2013.
Paul Piquado,
Assistant Secretary for Import Administration.
[FR Doc. 2013-23646 Filed 9-30-13; 8:45 am]
BILLING CODE 3510-DS-P