[Federal Register Volume 76, Number 80 (Tuesday, April 26, 2011)]
[Proposed Rules]
[Pages 23225-23227]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-10045]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

International Trade Administration

19 CFR Part 351

[Docket No. 110420253-1253-01]
RIN 0625-AA88


Modification of Regulations Regarding the Practice of Accepting 
Bonds During the Provisional Measures Period in Antidumping and 
Countervailing Duty Investigations

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

ACTION: Proposed rule; request for comments.

-----------------------------------------------------------------------

SUMMARY: The Department of Commerce (the Department) proposes to modify 
its regulation that states that provisional measures during an 
antidumping or countervailing duty investigation usually take the form 
of a bonding requirement. The modification, if adopted, would establish 
that the provisional measures during an antidumping or countervailing 
duty investigation will normally take the form of a cash deposit.

DATES: To be assured of consideration, comments must be received no 
later than May 26, 2011.

ADDRESSES: All comments must be submitted through the Federal 
eRulemaking Portal at http://www.regulations.gov, Docket No. ITA-2011-
0005, unless the commenter does not have access to the Internet. 
Commenters who do not have access to the Internet may submit the 
original and two copies 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. The comments should also be identified by 
Regulation Identifier Number (RIN) 0625-AA88.
    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 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 for inspection at Import 
Administration's Central Records Unit (Room 7046 of the Herbert C. 
Hoover Building) and online at http://www.Regulations.gov and on the 
Department's Web site at http://www.trade.gov/ia/.
    Any questions concerning file formatting, document conversion, 
access on the Internet, or other electronic filing issues should be 
addressed to Andrew Lee Beller, Import Administration Webmaster, at 
(202) 482-0866, e-mail address: [email protected].

FOR FURTHER INFORMATION CONTACT: Thomas Futtner at (202) 482-3814, Mark 
Ross at (202) 482-4794, or Joanna Theiss at (202) 482-5052.

SUPPLEMENTARY INFORMATION: 

Background

    The Department proposes to modify its regulation to establish that 
the provisional measures during an antidumping or countervailing duty 
investigation will normally take the form of a cash deposit. The 
provisional measures period is the period between the publication of 
the Department's preliminary affirmative determination and the earlier 
of (1) the expiration of the applicable time period set forth in 
sections 703(d) and 733(d) the Tariff Act of 1930, as amended (the 
Act), or (2) the publication of the International Trade Commission's 
final affirmative injury determination.\1\ During the provisional 
measures period in antidumping and countervailing duty investigations, 
the Department is instructed by the Act to order ``the posting of a 
cash deposit, bond, or other security, as the administering authority 
deems appropriate.'' See Sections 703(d)(1)(B) and 733(d)(1)(B) of the 
Act.
---------------------------------------------------------------------------

    \1\ Also, pursuant to sections 703(e)(2) and 733(e)(2) of the 
Act, if the Department makes an affirmative determination of 
critical circumstances, then provisional measures shall apply on or 
after the later of (A) the date which is 90 days before the date on 
which the suspension of liquidation was first ordered, or (B) the 
date on which notice of the determination to initiate the 
investigation is published in the Federal Register.
---------------------------------------------------------------------------

    Our regulations describe the preliminary determination in 
antidumping and countervailing duty investigations as the first point 
at which the Department may provide a remedy if we preliminarily find 
that dumping or countervailable subsidies has occurred. The regulations 
at 19 CFR 351.205(a) state that, ``[t]he remedy (sometimes

[[Page 23226]]

referred to as `provisional measures') usually takes the form of a 
bonding requirement to ensure payment if antidumping or countervailing 
duties ultimately are imposed.'' Section 351.205(d) states that, ``[i]f 
the preliminary determination is affirmative, the Secretary will take 
the actions described in section 703(d) or section 733(d) (whichever is 
applicable).''
    A key reason for requiring that the provisional measures during an 
antidumping or countervailing duty investigation take the form of a 
cash deposit is to better ensure that importers bear full 
responsibility for any future antidumping and countervailing duties 
they may owe. While most of the duties on entries secured by a bond 
during the provisional measures period are ultimately collected, these 
collections can be very slow and involve burdensome administrative 
problems for U.S. Customs and Border Protection (CBP).
    We also believe that this change to our regulation will bring the 
United States in line with the practices of other World Trade 
Organization (WTO) Members. We are aware of no other WTO Member that is 
currently permitting importers the option of posting bonds during the 
provisional measures period of antidumping and countervailing duty 
investigations.

Explanation of Proposed Modification to 19 CFR 351.205

    The second sentence of 19 CFR 351.205(a) states that, ``[t]he 
remedy (sometimes referred to as `provisional measures') usually takes 
the form of a bonding requirement to ensure payment if antidumping or 
countervailing duties ultimately are imposed.'' The Department proposes 
deleting most of this sentence because U.S. importers would normally no 
longer be permitted to post bonds during the provisional measures 
period. The Department proposes keeping the ``(sometimes referred to as 
`provisional measures')'' phrase and moving it to the first sentence of 
19 CFR 351.205(a). We view this phrase as a useful link between this 
part of our regulations and the terminology under Article 7 of the WTO 
Antidumping Agreement. Further, to clarify that provisional measures 
will take the form of cash deposits the Department proposes adding a 
sentence to 19 CFR 351.205(d) that states, ``[w]ith respect to section 
703(d)(1)(B) and 733(d)(1)(B) of the Act, the Secretary will normally 
order the posting of cash deposits to ensure payment if antidumping or 
countervailing duties ultimately are imposed.'' This change, in our 
view, places the requirement for cash deposits in the appropriate part 
of 19 CFR 351 (i.e., in the part that explains the effects of an 
affirmative preliminary determination). These modifications would 
reflect the Department's change in practice of normally requiring cash 
deposits rather than bonds during the provisional measures period. This 
modification is also in line with 19 CFR 351.205(d), which provides 
that ``if the preliminary determination is affirmative, the Secretary 
will take the actions described in section 703(d) or section 733(d) of 
the Act (whichever is applicable)'' because these sections of the Act 
provide that the Department shall order the posting of cash deposits or 
bonds, as the Department deems appropriate.

Classification

Executive Order 12866

    This rule has been determined to be not significant for purposes 
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 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. Some of these entities may be 
considered small entities under the SBA small business size standard. 
The Department is not able to estimate the number of small entities 
this proposed rule will affect; however, the Department anticipates 
that it will not be a substantial number based on our experience with 
the administration of antidumping and countervailing duty proceedings.
    The Department also estimates that this proposed rule's economic 
impact on small entities will not be significant. In 2008 and 2009, 
antidumping and countervailing duty remedies were applied to less than 
2% of imports into the United States. Further, because provisional 
antidumping and countervailing duties only apply during the 
investigation phase of a case, this proposed rule is not applicable to 
a significant portion of our antidumping and countervailing duty 
remedies. Finally, the Act provides that provisional measures may only 
be in force for a four-month period, which can be extended to no longer 
than six months in antidumping cases.
    Moreover, given the nature of our retrospective duty assessment 
system, eliminating effectively the bonding option and requiring cash 
deposits during the provisional measure period should not have a 
significant economic impact on small business entities. Under the U.S. 
retrospective system, for the provisional measure period an estimated 
antidumping or countervailing duty rate is established (based on the 
dumping margin or subsidy rate found in the preliminary determination 
of the original investigation), and this rate is applied to subject 
merchandise as it is imported. This duty rate is for deposit purposes 
only. Final duties are not assessed at the time the subject merchandise 
is imported into the United States. Rather, beginning one year after 
the imposition of any antidumping or countervailing duty order, 
interested parties (e.g., domestic producers, importers, or foreign 
exporters) may request an administrative review to determine the actual 
amount of duties to be collected based on the level of dumping or 
subsidization that occurred during the review period. Further, small 
business entities will continue to have the option to post cash 
deposits during the provisional measures period, either from the 
entity's assets or borrowed from third parties.
    For all of these reasons, the proposed rule would not have a 
significant economic impact on a substantial number of small business 
entities. Since this proposed modification to 19 CFR 351.222, if 
adopted, will not have a significant economic impact on a substantial 
number of small entities, an Initial Regulatory Flexibility Analysis is 
not required and, therefore, 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.


[[Page 23227]]


    Dated: April 20, 2011.
Ronald K. Lorentzen,
Deputy Assistant Secretary for Import Administration.
    For the reasons stated, 19 CFR part 351 is proposed to be amended 
as follows:

PART 351--ANTIDUMPING AND COUNTERVAILING DUTIES

    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.

    2. In Sec.  351.205, revise paragraphs (a) and (d) to read as 
follows:
    (a) Introduction. A preliminary determination in an antidumping or 
countervailing duty investigation constitutes the first point at which 
the Secretary may provide a remedy (sometimes referred to as 
``provisional measures'') if the Secretary preliminarily finds that 
dumping or countervailable subsidization has occurred. Whether the 
Secretary's preliminary determination is affirmative or negative, the 
investigation continues. This section contains rules regarding 
deadlines for preliminary determinations, postponement of preliminary 
determinations, notices of preliminary determinations, and the effects 
of affirmative preliminary determinations.
* * * * *
    (d) Effect of affirmative preliminary determination. If the 
preliminary determination is affirmative, the Secretary will take the 
actions described in section 703(d) or section 733(d) of the Act 
(whichever is applicable). With respect to section 703(d)(1)(B) and 
733(d)(1)(B) of the Act, the Secretary will normally order the posting 
of cash deposits to ensure payment if antidumping or countervailing 
duties ultimately are imposed. In making information available to the 
Commission under section 703(d)(3) or section 733(d)(3) of the Act, the 
Secretary will make available to the Commission and to employees of the 
Commission directly involved in the proceeding the information upon 
which the Secretary based the preliminary determination and which the 
Commission may consider relevant to its injury determination.

[FR Doc. 2011-10045 Filed 4-25-11; 8:45 am]
BILLING CODE 3510-DS-P