[Federal Register Volume 70, Number 156 (Monday, August 15, 2005)]
[Proposed Rules]
[Pages 47738-47740]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-16133]



[[Page 47738]]

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DEPARTMENT OF COMMERCE

International Trade Administration

19 CFR Part 351

[Docket No. 050803215-5215-01]
RIN 0625-AA69


Procedures for Conducting Five-year (``Sunset'') Reviews of 
Antidumping and Countervailing Duty Orders

AGENCY: Import Administration, International Trade Administration, 
Department of Commerce.

ACTION: Proposed rule; request for comments.

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SUMMARY: The Department of Commerce (``the Department'') proposes to 
amend its regulations related to sunset reviews to conform the existing 
regulation to the United States' obligations under Articles 6.1, 6.2, 
and 11.3 of the Agreement on the Implementation of Article VI of the 
General Agreement on Tariffs and Trade 1994 (``Antidumping 
Agreement''). The proposed regulations, if adopted, would amend the 
``waiver'' provisions which govern treatment of interested parties who 
do not provide a substantive response to the Department's notice of 
initiation of a sunset review and clarify the basis for parties' 
participation in a public hearing in an expedited sunset review.

DATES: To be assured of consideration, written comments must be 
received not later than September 14, 2005.

ADDRESSES: A signed original and two copies of each set of comments, 
including reasons for any recommendation, should be submitted to Joseph 
A. Spetrini, Acting Assistant Secretary for Import Administration, 
Central Records Unit, room 1870, U.S. Department of Commerce, 
Pennsylvania Avenue and 14th Street, NW, Washington, DC, 20230; 
attention: Proposed Amendments to Sunset Procedural Regulations.

FOR FURTHER INFORMATION CONTACT: Stacy J. Ettinger or Patrick V. 
Gallagher, Office of the Chief Counsel for Import Administration, room 
3622, U.S. Department of Commerce, Pennsylvania Avenue and 14th Street 
NW, Washington, DC, 20230; telephone: (202)482-4618 or (202)482-5053, 
respectively.

SUPPLEMENTARY INFORMATION:

Background

    On March 20, 1998, the Department published regulations addressing 
the procedures for participation in, and conduct of, sunset reviews. 
See 63 Fed. Reg. 13516. On December 17, 2004, the Dispute Settlement 
Body (DSB) of the World Trade Organization (WTO) adopted the reports of 
the Appellate Body (``AB'') and the dispute settlement panel in United 
States--Sunset Reviews of Anti-dumping Measures on Oil Country Tubular 
Goods from Argentina, WT/DS268/AB/R (November 29, 2004) and WT/DS268/R 
(July 16, 2004), respectively. The AB/panel found that the waiver 
provisions of section 751(c)(4)(B) of the Tariff Act of 1930 and 
section 351.218(d)(2)(iii) of Commerce's sunset regulations are 
inconsistent with Articles 6.1, 6.2, and 11.3 of the Antidumping 
Agreement.
    Section 123 of the Uruguay Round Agreements Act (``URAA'') governs 
the process for changes to the Department's regulations where a dispute 
settlement panel and/or the Appellate Body finds a regulatory provision 
to be inconsistent with any of the WTO agreements. Consistent with 
section 123(g)(1)(C), the Department is publishing proposed amendments 
to its regulations related to sunset reviews to conform the existing 
regulations to the United States' obligations under Articles 6.1, 6.2, 
and 11.3 of the Antidumping Agreement. The proposed regulations, if 
adopted, would amend the ``waiver'' provisions which govern treatment 
of interested parties who do not provide a complete substantive 
response to the Department's Notice of Initiation of a sunset review 
and clarify the basis for parties' participation in a public hearing in 
an expedited sunset review.

Explanation of Proposed Amendments

Section 351.218

    Section 751(c)(4)(B) of the Tariff Act provides that where an 
interested party ``waives'' its participation in a sunset review, the 
Department ``shall conclude that revocation of the order ... would be 
likely to lead to continuation or recurrence of dumping or a 
countervailable subsidy (as the case may be) with respect to that 
interested party.'' Paragraph (d)(2) of 19 CFR 351.218 deals with the 
procedure for waiving participation in a sunset review before the 
Department. Specifically, paragraph (d)(2)(i) provides for filing a 
``statement of waiver'' for parties electing not to participate in the 
Department's sunset review (so-called ``affirmative waiver''), and 
paragraph (d)(2)(iii) provides that failure to file a complete 
substantive response to a notice of initiation also will be treated as 
a waiver of participation (so-called ``deemed waiver''). The panel and 
Appellate Body found that the operation of the statutory and regulatory 
waiver provisions was inconsistent with the obligation under Article 
11.3 to arrive at a ``reasoned conclusion'' because the Department's 
order-wide likelihood determination would be based, at least in part, 
on statutorily-mandated ``assumptions'' about a company's likelihood of 
dumping. The AB/panel also found that the operation of paragraph 
(d)(2)(iii) was inconsistent with ``due process rights'' of Articles 
6.1 and 6.2, because the Department could assume likelihood with 
respect to a particular company even though that party had filed a 
substantive response to the notice of initiation, albeit an 
``incomplete'' response.
    To implement the AB/panel findings with respect to the operation of 
the waiver provisions, we propose to modify the Department's 
regulations to eliminate the possibility that the Department's order-
wide likelihood determinations would be based on assumptions about 
likelihood of continuation or recurrence of dumping or a 
countervailable subsidy due to interested parties' waiver of 
participation in sunset reviews. Thus, we propose the following three 
modifications to paragraph (d)(2) of 19 CFR 351.218. First, with 
respect to so-called ``affirmative waivers'' set forth in paragraph 
(d)(2)(i) which provides that a party may elect not to participate in 
the Department's sunset review by filing a ``statement of waiver'' 
within 30 days of initiation of the sunset review we propose to amend 
the contents of a ``statement of waiver'' which are set forth in 
paragraph (d)(2)(ii). Specifically, we proposed to amend paragraph 
(d)(2)(ii) to require that a party filing a Statement of Waiver include 
a statement that it is likely to dump or benefit from a countervailable 
subsidy (as the case may be) or, in the case of a foreign government in 
a CVD sunset review, provide a countervailable subsidy, if the order is 
revoked or the investigation is terminated. Second, we propose to 
eliminate paragraph (d)(2)(iii) which provides that an interested party 
is ``deemed'' to have waived participation in the sunset review by 
failing to file a complete substantive response to a notice of 
initiation. Thus, the Department will no longer make company-specific 
likelihood findings for companies that fail to file a statement of 
waiver and fail to file a substantive response to the notice of 
initiation. Finally, we propose to modify paragraphs (d)(2)(iv)(C) and 
(e)(1)(ii)(B)(3) which address waiver of participation by a foreign 
government in a CVD sunset review to eliminate cross-references to 
paragraph (d)(2)(iii) and to

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eliminate certain language that might suggest the possibility that the 
Department's order-wide likelihood determination in a CVD sunset review 
would be based on assumptions about likelihood of continuation or 
recurrence of a countervailable subsidy. In sum, these three 
modifications to the waiver provisions of the Department's sunset 
regulations will ensure that there is no longer the possibility that 
the Department's order-wide likelihood determinations might be based on 
assumptions about likelihood of continuation or recurrence of dumping 
or a countervailable subsidy. The Department will make its order-wide 
likelihood determinations on the basis of the facts and information 
available on the record of the sunset review.

Section 351.309

    The Appellate Body upheld the panel's finding that the operation of 
paragraph (d)(2)(iii) of 19 CFR 351.218 was inconsistent with Article 
6.2 in that it allegedly denies an interested party that is deemed to 
have waived its right to participate in a sunset review by submitting 
an incomplete substantive response the right to participate in a 
hearing. Paragraph (d)(2)(iii) does not explicitly address the issue of 
hearings; nor do the regulations preclude hearings in expedited sunset 
reviews resulting from the application of the waiver provisions. 
Nevertheless, in the interest of alleviating any perceived confusion 
with respect to participation in a hearing in an expedited sunset 
review, we propose to modify paragraph (c)(1)(iii) of 19 CFR 351.309 to 
clarify that the Secretary will specify a due date for case briefs in 
an expedited sunset review. Case briefs provide the basis for parties' 
affirmative presentations at a hearing. In addition, as discussed 
above, for other reasons we propose to eliminate paragraph (d)(2)(iii) 
in its entirety.

Effective Date

    Pursuant to section 123(g)(2) of the URAA, the final amended 
regulation may not become effective until the end of the 60-day period 
beginning on the date on which the Department and the Office of the 
U.S. Trade Representative (``USTR'') undertake consultations with the 
appropriate congressional committees concerning the proposed contents 
of the final rule. Since the date of consultations has not yet been 
determined, we are unable to project the possible effective date at 
this time. If the proposed regulation is adopted, we will publish the 
effective date in the notice of final rule based upon the date on which 
USTR and the Department consult with Congress.

Classification

E.O. 12866

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

Paperwork Reduction Act

    Notwithstanding any other provision of law, no person is required 
to respond to nor shall a person be subject to a penalty for a failure 
to comply with a collection of information subject to the requirements 
of the Paperwork Reduction Act unless that collection of information 
displays a currently valid Office of Management and Budget (OMB) 
control number. This proposed rule involves collection-of-information 
requirements subject to the Paperwork Reduction Act, 44 USC Chapter 35. 
The requirements have been approved by OMB under control numbers 0625-
0148.

E.O. 12612

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

Regulatory Flexibility Act

    The Chief Counsel for Regulation of the Department of Commerce has 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration that these proposed rules, if adopted, would not have a 
significant impact on a substantial number of small entities. We cannot 
identify the number of small entities that may be affected by this rule 
because we do not keep track of that information. The Department's 
existing regulations contain procedures for the conduct of five-year 
(``sunset'') reviews in which the Secretary considers whether to 
revocation of an order is likely to lead to continuation or recurrence 
of dumping or a countervailable subsidy. The proposed amendments revise 
the process for interested parties electing not to participate in a 
sunset review and clarify the basis for parties' participation in a 
hearing in an expedited sunset review. These actions, in and of 
themselves, will not have a significant economic impact because they do 
not impose any new reporting requirements. Therefore, the Chief Counsel 
concluded that the proposed rules would not have a significant impact 
on a substantial number of small business entities, and a regulatory 
flexibility analysis was not prepared.

List of Subjects in 19 CFR Part 351

    Administrative practice and procedure, Antidumping duties, Business 
and industry, Cheese, Confidential business information, Countervailing 
duties, Investigations, Reporting and record keeping requirements.

    Dated: August 5, 2005.
Joseph A. Spetrini,
Acting Assistant Secretary for Import Administration.
    For the reasons stated, 19 CFR Part 351 is amended as follows:

PART 351--ANTIDUMPING AND COUNTERVAILING DUTIES

Subpart B--Antidumping and Countervailing Duty Procedures

    1. Section 351.218 is amended by revising paragraphs (d)(2)(ii), 
(d)(2)(iv) introductory text, (d)(2)(iv)(C), (e)(1)(ii)(B) introductory 
text, and (e)(1)(ii)(B)(3), and removing and reserving paragraph 
(d)(2)(iii), as follows:


Sec. 351.218  Sunset reviews under section 751(c) of the Act.

* * * * *
    (d) Participation in sunset review (1) * * *
    (2) Waiver of response by a respondent interested party to a notice 
of initiation (i) * * *
    (ii) Contents of statement of waiver. Every statement of waiver 
must include a statement indicating that the respondent interested 
party waives participation in the sunset review before the Department; 
a statement that the respondent interested party is likely to dump or 
benefit from a countervailable subsidy (as the case may be) if the 
order is revoked or the investigation is terminated; in the case of a 
foreign government in a CVD sunset review, a statement that the 
government is likely to provide a countervailable subsidy if the order 
is revoked or the investigation is terminated; and the following 
information: * * *
* * * * *
    (iii) [reserved]
* * * * *
    (iv) Waiver of participation by a foreign government in a CVD 
sunset review. Where a foreign government waives participation in a CVD 
sunset review under paragraph (d)(2)(i) of this section, the Secretary 
will:
* * * * *
    (C) Base the final results of review on the facts available in 
accordance with Sec.  351.308(f).
* * * * *

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    (e) Conduct of sunset review- (1) * * *
    (ii) Adequacy of response from respondent interested parties-(A) * 
* *
    (B) Failure of a foreign government to file a substantive response 
to a notice of initiation in a CVD sunset review. If a foreign 
government fails to file a complete substantive response to a notice of 
initiation in a CVD sunset review under paragraph (d)(3)(v) of this 
section or waives participation in a CVD sunset review under paragraph 
(d)(2)(i) of this section, the Secretary will:
* * * * *
    (3) Base the final results of review on the facts available in 
accordance with Sec.  351.308(f).
* * * * *

Subpart C--Information and Argument

    2. Section 351.309(c)(1)(iii) is revised to read as follows:


Sec. 351.309  Written argument.

* * * * *
    (c) Case brief. (1) * * *
    (iii) For the final results of an expedited sunset review, 
expedited antidumping review, Article 8 violation review, Article 4/ 
Article 7 review, or section 753 review, a date specified by the 
Secretary.
* * * * *
[FR Doc. 05-16133 Filed 8-12-05; 8:45 am]
BILLING CODE 3510-DS-S