[Federal Register Volume 62, Number 85 (Friday, May 2, 1997)]
[Notices]
[Pages 24085-24088]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-11459]
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DEPARTMENT OF COMMERCE
International Trade Administration
[C-357-803, C-357-403, C-357-002, and C-357-005]
Leather from Argentina, Wool from Argentina, Oil Country Tubular
Goods from Argentina, and Carbon Steel Cold-Rolled Flat Products from
Argentina; Preliminary Results of Changed Circumstances Countervailing
Duty Reviews
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
ACTION: Notice of preliminary results of changed circumstances
countervailing duty reviews and intent to revoke or amend the
revocation of countervailing duty orders.
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SUMMARY: The Department of Commerce (the Department) is conducting
changed circumstances reviews of the countervailing duty orders on
Leather from Argentina (55 FR 40212), Wool from Argentina (48 FR
14423), Oil Country Tubular Goods from Argentina (OCTG) (49 FR 46564),
and Carbon Steel Cold-Rolled Flat Products from Argentina (Cold-Rolled)
(49 FR 18006). The Department initiated these reviews on April 2, 1996
to determine whether it has the authority to assess countervailing
duties on entries of merchandise covered by these orders
[[Page 24086]]
occurring on or after September 20, 1991--the date on which Argentina
became a ``country under the Agreement'' within the meaning of 19
U.S.C. Sec. 1303(a)(1) (1988) (repealed 1994). The Department
preliminarily determines that based upon the ruling of the U.S. Court
of Appeals for the Federal Circuit (Federal Circuit) in Ceramica
Regiomontana v. United States, 64 F.3d 1579, 1582 (Fed. Cir. 1995), it
does not have the authority to assess countervailing duties on entries
of merchandise covered by these orders occurring on or after September
20, 1991. As a result, we have preliminarily determined to revoke the
orders on Wool, Leather, and OCTG with respect to all unliquidated
entries occurring on or after September 20, 1991. With respect to Cold-
Rolled, the order was revoked effective January 1, 1995; therefore, we
intend to amend the effective date of the revocation to September 20,
1991. We invite interested parties to comment on these preliminary
results.
EFFECTIVE DATE: May 2, 1997.
FOR FURTHER INFORMATION CONTACT: Richard Herring, Office of AD/CVD
Enforcement VI, Import Administration, International Trade
Administration, U.S. Department of Commerce, 14th Street and
Constitution Avenue, N.W., Washington, D.C. 20230; telephone: (202)
482-2786.
SUPPLEMENTARY INFORMATION:
Scope of Reviews
The scope of each of the four countervailing duty orders is
detailed in the Appendix to this notice.
Background
I. The Orders
The countervailing duty orders on Leather, Wool, Cold-Rolled, and
OCTG from Argentina were issued pursuant to former section 303 of the
Tariff Act of 1930, as amended (the Act) (repealed, effective January
1, 1995, by the Uruguay Round Agreements Act). Under former section
303, the Department could assess (or ``levy'') countervailing duties,
without an injury determination, on two types of imports: (i) dutiable
merchandise from countries that were not signatories of the 1979
Subsidies Code or ``substantially equivalent'' agreements (otherwise
known as ``countries under the Agreement''), and (ii) duty-free
merchandise from countries that were not signatories of the 1947
General Agreement on Tariffs and Trade (1947 GATT). See S. Rep. No.
249, 96th Cong. 1st Sess. 103-06 (1979); H. Rep. No. 317, 96th Cong.
1st Sess. 43, 49-50 (1979). At the time these countervailing duty
orders were issued, Wool, Leather, Cold-Rolled and OCTG were dutiable.
Also at that time, Argentina was not a ``country under the Agreement''
and, therefore, U.S. law did not require injury determinations as a
prerequisite to the issuance of these orders.
II. The Ruling by the Court of Appeals for the Federal Circuit
Regarding Ceramic Tile from Mexico
On September 6, 1995, the Federal Circuit held, in a case involving
imports of dutiable ceramic tile, that once Mexico became a ``country
under the Agreement'' on April 23, 1985 pursuant to the Understanding
between the United States and Mexico Regarding Subsidies and
Countervailing Duties (the Mexican MOU), the Department could not
assess countervailing duties on ceramic tile from that country under
former section 303(a)(1) of the Act. Ceramica Regiomontana v. United
States, 64 F.3d 1579, 1582 (Fed. Cir. 1995) (Ceramica). ``After Mexico
became a `country under the Agreement,' the only provision under which
ITA could continue to impose countervailing duties was section 1671.''
Id. One of the prerequisites to the assessment of countervailing duties
under 19 U.S.C. Sec. 1671 (1988), according to the Federal Circuit, is
an affirmative injury determination. See also Id. at Sec. 1671e.
However, at the time the countervailing duty order on ceramic tile was
issued, the requirement of an affirmative injury determination under
U.S. law was not applicable. Therefore, the Federal Circuit looked to
see whether the statute contained any transition rules when Mexico
became a country under the Agreement which might provide the order on
tile with the required injury test. Specifically, the Federal Circuit
looked at section 104(b) of the Trade Agreements Act of 1979, Pub. L.
No. 96-39 (July 20, 1979) (1979 Act) and found that there were no
statutory means to provide an injury test.
Section 104(b) was designed to provide an injury test for certain
countervailing duty orders issued under former section 303 prior to the
effective date of the 1979 Act (which established Title VII and, in
particular, section 701 of the Act). However, in order to induce other
countries to accede to the 1979 Subsidies Code (or substantially
equivalent agreements), the window of opportunity was intentionally
limited. In order to qualify (i) the exporting nation had to be a
country under the Agreement (e.g., a signatory of the Subsidies Code)
by January 1, 1980, (ii) the order had to be in existence on January 1,
1980 (i.e., the effective date of Title VII), and (iii) the exporting
country (or in some instances its exporters) had to request the injury
test on or before January 2, 1983.
In Ceramica, the countervailing duty order on ceramic tile was
issued in 1982 and Mexico did not become a country under the Agreement
until April 23, 1985. Therefore, the Federal Circuit held that in the
absence of an injury test and the statutory means to provide an injury
test, the Department could not assess countervailing duties on ceramic
tile and the Federal Circuit ordered the Department to revoke the order
effective April 23, 1985 (i.e., the date Mexico became a country under
the Agreement). Ceramica, 64 F.3d at 1583. As the Federal Circuit
stated, once Mexico became a ``country under the Agreement,'' ``[t]he
only statutory authority upon which Congress could impose duties was
section 1671. Without the required injury determination, Commerce
lacked authority to impose duties under section 1671.''
III. The Issue
On September 20, 1991, the United States and Argentina signed the
Understanding Between the United States of America and the Republic of
Argentina Regarding Subsidies and Countervailing Duties (Argentine
MOU). Section III of the Argentine MOU contains provisions
substantially equivalent to the provisions in the Mexican MOU that were
before the Federal Circuit in Ceramica. Therefore, on April 2, 1996,
the Department initiated the instant changed circumstances reviews in
order to determine whether it has the authority, in light of the
Ceramica decision, to assess countervailing duties on unliquidated
entries of merchandise made on or after September 20, 1991 (i.e., the
effective date of the Argentine MOU) which are covered by the orders on
Leather from Argentina, Wool from Argentina, OCTG from Argentina, and
Cold-Rolled from Argentina. Initiation of Changed Circumstances
Countervailing Duty Administrative Reviews: Leather from Argentina,
Wool from Argentina, Oil Country Tubular Goods from Argentina, and
Cold-Rolled Carbon Steel Flat Products from Argentina, 61 FR 14553
(Apr. 2, 1996).
Preliminary Results of Changed Circumstances Countervailing Duty
Administrative Reviews and Intent to Revoke, or Amend the Revocation
of, Countervailing Duty Orders
The orders on Leather, Wool, OCTG, and Cold-Rolled from Argentina
involve
[[Page 24087]]
the same set of pertinent facts as the Department faced in connection
with the countervailing duty order on ceramic tile from Mexico. For
this reason, the Federal Circuit's decision in Ceramica applies to the
orders against Argentina, and requires the Department to revoke these
orders as of the date Argentina became a ``country under the
Agreement.''
First, at the time the countervailing duty orders on Mexico and
Argentina were issued, the requirement of an affirmative injury
determination under U.S. law was not applicable. Second, both countries
subsequently entered into substantially equivalent agreements with the
United States and, hence, became ``countries under the Agreement''
within the meaning of former section 303(a)(1) of the Act. Third, once
Mexico and Argentina qualified as countries under the Agreement, the
assessment of countervailing duties on subsequent entries of dutiable
merchandise became dependent upon a finding of subsidization and injury
in accordance with section 701 of the Act (i.e., 19 U.S.C. Sec. 1671).
See Ceramica, 64 F.3d at 1582. Fourth, none of the transition rules in
effect when both countries attained this status afforded the statutory
means of providing an injury test. As explained above, section 104 of
the 1979 Act only applies to countervailing duty orders issued before
January 1, 1980. The parties have raised the question of whether
section 271 of the Uruguay Round Agreements Act (adding new section 753
to the Act) applies to these orders. Section 753 established a
mechanism to provide an injury test for outstanding countervailing duty
orders issued under former section 303. However, section 753 of the Act
was not enacted into law until January 1, 1995. Therefore, pursuant to
the Federal Circuit's reasoning in Ceramica, section 753 is not
applicable under these circumstances.
Pursuant to section 751(d) of the Act, the Department may revoke,
in whole or in part, a countervailing duty order if the Department
determines, based on a review under section 751(b)(1) of the Act, that
changed circumstances exist sufficient to warrant revocation. For the
foregoing reasons, and consistent with our determinations in Ceramic
Tile from Mexico, 61 FR 6630 (Feb. 21, 1996) and Leather Wearing
Apparel from Mexico, 61 FR 26163 (May 24, 1996), the Department
preliminarily determines that there is a reasonable basis to believe
that the requirement for revocation based upon the changed
circumstances occasioned by the ruling in Ceramica has been met.
Therefore, we are hereby notifying the public of our intent to amend
our earlier revocation of the order on Cold-Rolled by changing the
effective date from January 1, 1995 to September 20, 1991. For the
orders on Wool, Leather, and OCTG from Argentina, we intend to revoke
these measures effective September 20, 1991. If our final determination
remains unchanged from this notice of intent, these revocations will
apply to all unliquidated entries of subject merchandise entered or
withdrawn from warehouse for consumption on or after September 20,
1991.
If final revocation occurs, we intend to instruct the U.S. Customs
Service to terminate the suspension of liquidation and liquidate all
unliquidated entries of the subject merchandise entered or withdrawn
from warehouse for consumption on or after September 20, 1991, without
regard to countervailing duties. We will also instruct the U.S. Customs
Service to refund with interest any estimated countervailing duties
collected with respect to those entries. We note that the requirements
for a cash deposit of estimated countervailing duties were previously
terminated in conjunction with the section 753 determination covering
Cold-Rolled.
The current requirements for a cash deposit of estimated
countervailing duties will continue until publication of the final
results of these changed circumstances reviews.
Interested parties may request a hearing not later than 10 days
after the date of publication of this notice and may submit written
arguments in case briefs on these preliminary results within 21 days of
the date of publication. Rebuttal briefs, limited to arguments raised
in case briefs, may be submitted 7 days after the time limit for filing
the case briefs. Parties must specify which of the four orders their
comments or rebuttal briefs address. In addition, interested parties
may only comment with respect to the order(s) for which they are
interested parties; they may not submit comments for the other orders.
Parties who submit arguments in this proceeding are requested to submit
with the argument: (1) the name of the interested party on behalf of
which the argument is submitted, (2) a statement of the issue, and (3)
a brief summary of the argument. Copies of case briefs and rebuttal
briefs must be served on interested parties in accordance with 19
C.F.R. Sec. 355.38(e). The Department will publish the final results of
these changed circumstance reviews and its final determination on
revocation, including its analysis of issues raised in any case or
rebuttal brief or at a hearing.
This notice is published in accordance with section 751(b)(1) of
the Act (19 U.S.C. 1675(b)(1)) and 19 CFR 355.22(h).
Dated: April 25, 1997.
Robert S. LaRussa,
Acting Assistant Secretary for Import Administration.
Appendix--Scope of the Reviews
I. OCTG From Argentina
Imports covered by this review include shipments of Argentine
OCTG. OCTG include hollow steel products of circular cross-section
intended for use in the drilling of oil or gas and oil well casing,
tubing and drill pipe or carbon or alloy steel, whether welded or
seamless, manufactured to either American Petroleum Institute or
proprietary specifications. The scope covers both finished and
unfinished OCTG. The products covered in this review are provided
for under item numbers of the Harmonized Tariff Schedule (HTS):
7304.20.20, 7304.20.40, 7304.20.50, 7304.20.60, 7304.20.80,
7304.39.00, 7304.51.50, 7304.20.70, 7304.59.60, 7304.59.80,
7304.90.70, 7305.20.40, 7305.20.60, 7305.20.80, 7305.31.40,
7305.31.60, 7305.39.10, 7305.39.50, 7305.90.10, 7305.90.50,
7306.20.20, 7306.20.30, 7306.20.40, 7306.20.60, 7306.20.80,
7306.30.50, 7306.50.50, 7306.60.70, 7306.90.10. The HTS subheadings
are provided for convenience and Customs purposes. The written
description remains dispositive.
II. Wool From Argentina
Imports covered by this review include shipments of Argentine
wool finer than 44s and not on the skin. These products are provided
for under HTS item numbers: 5101.11.60, 5101.19.60, 5101.21.40, and
5101.29.40. The HTS subheadings are provided for convenience and
Customs purposes. The written description remains dispositive.
III. Leather From Argentina
Imports covered by this review include shipments of Argentine
leather. The types of leather that are covered include bovine
(excluding upper and lining leather not exceeding 28 square feet,
buffalo leather, and upholstery leather), sheep (excluding vegetable
pretanned sheep and lambskin leather), swine, reptile (excluding
vegetable pretanned and not fancy reptile leather), patent leather,
calf and kip patent laminated, and metalized leather. Leather is an
animal skin that has been subjected to certain treatment to make it
serviceable and resistant to decomposition. It is used in the
footwear, clothing, furniture and other industries. The types of
leather included within the scope are currently classified under HTS
item numbers 4104.10.60, 4104.10.80, 4104.21.00, 4104.22.00,
4104.29.50, 4104.29.90, 4104.31.50, 4104.31.60, 4104.31.80,
4104.39.50, 4104.39.60, 4104.39.80, 4105.12.00, 4105.19.00,
4105.20.30, 4105.20.60, 4107.10.00, 4107.29.60, 4107.90.30,
4107.90.60, 4109.00.30, 4109.00.40, and 4109.00.70. The HTS
subheadings are provided for convenience
[[Page 24088]]
and Customs purposes. The written description remains dispositive.
IV. Cold-Rolled From Argentina
Imports covered by this review include shipments of Argentine
cold-rolled carbon steel flat products, whether or not corrugated or
crimped; whether or not painted or varnished and whether or not
pickled; not cut, not pressed, and not stamped to non-rectangular
shape; not coated or plated with metal; over 12 inches in width and
under 0.1875 inches in thickness whether or not in coils; as
currently provided for under the following item numbers of the HTS:
7209.11.00, 7209.12.00, 7209.13.00, 7209.14.00, 7209.21.00,
7209.22.00, 7209.23.00, 7209.24.00, 7209.31.00, 7209.32.00,
7209.33.00, 7209.34.00, 7209.41.00, 7209.42.00, 7209.43.00,
7209.44.00, 7209.90.00, 7210.70.00, 7211.30.50, 7211.41.70,
7211.49.50, 7211.90.00, 7212.40.50. The HTS item numbers are
provided for convenience and Customs purposes. The written
description remains dispositive.
[FR Doc. 97-11459 Filed 5-1-97; 8:45 am]
BILLING CODE 3510-DS-P