[Federal Register Volume 73, Number 238 (Wednesday, December 10, 2008)]
[Rules and Regulations]
[Pages 74930-74932]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-29225]


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DEPARTMENT OF COMMERCE

International Trade Administration

19 CFR Part 351

RIN 0625-AA79


Withdrawal of the Regulatory Provisions Governing Targeted 
Dumping in Antidumping Duty Investigations

AGENCY: International Trade Administration, Import Administration.

ACTION: Interim final rule.

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SUMMARY: Import Administration issues this interim final rule for the 
purpose of withdrawing the regulatory provisions governing the targeted 
dumping analysis in antidumping duty investigations.

DATES: This interim final rule is effective for all antidumping duty 
investigations initiated on or after December 10, 2008. Although the 
amendment made by this Interim Final Rule is effective on December 10, 
2008, Import Administration seeks public comments. To be assured of 
consideration, written comments must be received not later than January 
9, 2009.

ADDRESSES: Comments on this Interim Final Rule must be sent to David M. 
Spooner, Assistant Secretary for Import Administration, Central Records 
Unit, Room 1870, U.S. Department of Commerce, Pennsylvania Avenue.

FOR FURTHER INFORMATION CONTACT: Michael Rill, telephone 202-482-3058.

SUPPLEMENTARY INFORMATION: The Uruguay Round Agreements Act (``URAA''), 
enacted into law in 1994, changed the methodology used to determine 
whether a company is selling foreign merchandise into the United States 
at dumped prices in antidumping investigations. Prior to the URAA, the 
Department usually compared the six-month period of investigation 
average normal value to individual U.S. transaction prices to determine 
the margin of dumping (known as the average-to-transaction method). The 
URAA, however, directed the Department normally to calculate dumping 
margins by one of two methods: (1) By comparing weighted-average 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). See 19 U.S.C. 1677f-1(d)(1)(A). 
Congress, however, was aware that these methodologies could mask 
certain types of dumping. ``In such situations, the exporter may sell 
at a dumped price to particular customers or regions, while selling at 
higher prices to other customers or regions.'' Uruguay Round Agreements 
Act, H.R. 103-826, Oct. 3, 1994, p. 98.
    To address this possibility, Congress enacted a statutory provision 
that allows an exception to the above two comparison methodologies. 
Specifically, 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 preferred 
methods referred to above, the Department could compare the weighted 
average of the normal values to the export price of individual 
transactions for comparable merchandise (i.e., average-to-transaction 
comparisons). See 19 U.S.C. 1677f-1(d)(1)(B).
    Sections 19 CFR 351.414(f) and (g) of the Department's regulations 
establish certain criteria for analyzing allegations and making 
targeted dumping determinations in antidumping duty investigations. 
Section 19 CFR 351.301(d)(5) provides that an allegation of targeted 
dumping is due no later than 30 days before the scheduled date of the 
preliminary determination. The Department promulgated these provisions 
(i.e., 19 CFR 351.414(f), (g), and 351.301(d)(5)) on May 19, 1997 
(Antidumping Duties; Countervailing Duties; Final Rule, 62 FR 27296, 
27374-76 (May 19, 1997)). At that time, the Department had never 
performed a targeted dumping analysis. Therefore, the provisions were 
promulgated without the benefit of any departmental experience on the 
issue of targeted dumping. Until recently, there have been very few 
allegations or findings of targeted dumping. This situation has caused 
the Department to question whether, in the absence of any practical 
experience, it established an appropriate balance of interests in the 
provisions. The Department believes that withdrawal of the provisions 
will provide the agency with an opportunity to analyze extensively the 
concept of targeted dumping and develop a meaningful practice in this 
area as it

[[Page 74931]]

gains experience in evaluating such allegations.
    The Department may have established thresholds or other criteria 
that have prevented the use of this comparison methodology to unmask 
dumping, contrary to the Congressional intent. In that case, these 
provisions would act to deny relief to domestic industries suffering 
material injury from unfairly traded imports. Accordingly, immediate 
revocation of the provisions will facilitate the proper and efficient 
operation of the antidumping law.
    The Department believes the withdrawal of this rule is not 
significant. Withdrawal will allow the Department to exercise the 
discretion intended by the statute and, thereby, develop a practice 
that will allow interested parties to pursue all statutory avenues of 
relief in this area.
    The Department is not replacing these provisions with new 
provisions. Instead, the Department is returning to a case-by-case 
adjudication, until additional experience allows the Department to gain 
a greater understanding of the issue.
    Parties are invited to comment on the Department's withdrawal of 
the regulatory provisions governing targeted dumping in antidumping 
duty investigations. Parties should submit to the address under the 
ADDRESSES heading a signed original and two copies of each set of 
comments including reasons for any recommendation, along with a cover 
letter identifying the commentator's name and address. To be assured of 
consideration, written comments must be received not later than January 
9, 2009.

Classification

Executive Order 12866

    It has been determined that this interim final 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 interim final rule contains no new collection of information 
subject to the Paperwork Reduction Act, 44 U.S.C. Chapter 35.

Executive Order 13132

    This 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)).

Administrative Procedure Act

    The Assistant Secretary for Import Administration finds good cause 
to waive the requirement to provide prior notice and opportunity for 
public comment, pursuant to the authority set forth at 5 U.S.C. Sec.  
553(b)(B), as such requirement is impracticable and contrary to the 
public interest. Courts have determined that notice and comment is 
impracticable when ``the agency could both follow section 553 and 
execute its statutory duties.'' Lavesque v. Block, 723 F.2d 175, 184 
(5th Cir. 1980). It went further to clarify that the Administrative 
Procedure Act good cause waiver authorizes departures from the 
requirements ``only when compliance would interfere with the agency's 
ability to carry out its mission.'' Riverbend Farms, Inc. v. Madigan, 
958 F.2d 1479, 1485 (9th Cir. 1992).
    Here, under the Tariff Act of 1930, as amended, the Department may 
employ the average-to-transaction comparison method in an investigation 
if: (i) There is a pattern of export prices (or constructed export 
prices) for comparable merchandise that differ significantly among 
purchasers, regions, or periods of time, and (ii) the agency explains 
why such differences cannot be taken into account using one of the 
preferred methods. See 19 U.S.C. 1677f-1(d)(1)(B)(i) and (ii). Sections 
19 CFR 351.414(f) and (g) of the Department's regulations establish 
certain criteria for analyzing targeted dumping allegations in 
antidumping investigations. These provisions were intended to clarify 
when the Department would use the average-to-transaction comparison 
method in antidumping duty investigations. As the provisions were 
promulgated without the benefit of any experience on the issue of 
targeted dumping, the Department may have established thresholds or 
other criteria that have prevented the use of this comparison 
methodology to unmask dumping. Likewise, 19 CFR 351.301(d)(5), the 
provision that establishes the deadline for submitting allegations, was 
promulgated without the benefit of any experience on the issue of 
targeted dumping. Consequentially, the Department may have established 
an impractical deadline for submitting such allegations. Given the 
above, sections 19 CFR 351.414(f), (g), and 351.301(d)(5) would act to 
deny relief to domestic industries suffering material injury from 
unfairly traded imports. This effect is contrary to the Department's 
intention in promulgating the provisions, and inconsistent with the 
Department's statutory mandate to provide relief to domestic industries 
materially injured by unfairly traded imports. Because the provisions 
are applicable to ongoing antidumping investigations, and because the 
application of the provisions can act to deny relief to domestic 
industries suffering material injury from unfairly traded imports, 
immediate revocation is necessary to ensure the proper and efficient 
operation of the antidumping law and to provide the relief intended by 
Congress.
    The Assistant Secretary for Import Administration also finds good 
cause to waive the 30-day delay in effectiveness, pursuant to the 
authority set forth at 5 U.S.C. 553(e), for the reasons given above. 
Significantly, the Department may employ the average-to-transaction 
comparison method in an antidumping duty investigation if certain 
conditions are met. See 19 U.S.C. 1677f-1(d)(1)(B)(i) and (ii). 
Sections 19 CFR 351.414(f) and (g) of the Department's regulations may 
have established thresholds or other criteria that have prevented the 
use of this comparison methodology to unmask dumping, contrary to the 
Congressional intent. Likewise, the Department may have established an 
impractical deadline when it promulgated section 351.301(d)(5). Given 
that the provisions are applicable to ongoing antidumping 
investigations, and because the application of the provisions can act 
to deny relief to domestic industries suffering material injury from 
unfairly trade imports, immediate revocation is necessary to ensure the 
proper and efficient operation of the antidumping law and to provide 
the relief intended by Congress.

Regulatory Flexibility Act

    Because a notice and an opportunity for public comment are not 
required to be given for this rule under the Administrative Procedure 
Act or by any other law, the analytical requirements of the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.) are not applicable. Therefore, a 
regulatory flexibility analysis has not been prepared.

List of Subjects in 19 CFR Part 351

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

0
For the reasons stated above, amend 19 CFR part 351 as follows:

[[Page 74932]]

PART 351--ANTIDUMPING AND COUNTERVAILING DUTIES

0
1. The authority citation for 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.


Sec.  351.301.  [Amended]

0
2. Amend Sec.  351.301 by removing and reserving paragraph (d)(5).


Sec.  351.414  [Amended]

0
3. Amend Sec.  351.414 by removing and reserving paragraphs (f) and 
(g).

    Dated: November 24, 2008.
David M. Spooner,
Assistant Secretary for Import Administration.
 [FR Doc. E8-29225 Filed 12-9-08; 8:45 am]
BILLING CODE 3510-DS-P