[Federal Register Volume 76, Number 112 (Friday, June 10, 2011)]
[Notices]
[Pages 34046-34047]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-14446]


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DEPARTMENT OF COMMERCE

International Trade Administration


Non-Market Economy Antidumping Proceedings: Assessment of 
Antidumping Duties

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

ACTION: Request for comments.

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SUMMARY: In antidumping duty (``AD'') administrative reviews involving 
non-market economy countries (``NME''), the Department of Commerce 
(``the Department'') currently instructs U.S. Customs and Border 
Protection (``CBP'') to liquidate entries from non-reviewed exporters 
at the cash-deposit rate required at the time the subject merchandise 
entered into the United States, consistent with 19 CFR 351.212(c)(i). 
The Department is aware of instances where merchandise from a non-
reviewed exporter enters the United States at the cash-deposit rate of 
an exporter subject to review but where the basis for that cash deposit 
is not consistent with information subsequently reported to the 
Department during an administrative review. Accordingly, to ensure that 
entries are liquidated at appropriate rates and in accordance with the 
information reported to the Department during an administrative review, 
the Department is proposing to refine its practice with respect to the 
rate at which it instructs CBP to liquidate certain entries from non-
reviewed exporters. Specifically, the Department proposes to instruct 
CBP to liquidate such entries at the NME-wide rate. Through this 
notice, the Department invites the public to comment on the proposed 
refinement to its practice.
    Effective Date: The Department proposes that this refinement in 
practice apply to all entries for which the anniversary for requesting 
an administrative review of an AD order is on or after the date of 
publication of a final notice on this issue.

DATES: Comments must be submitted to the Department by 30 days after 
publication of this notice in the Federal Register.

FOR FURTHER INFORMATION CONTACT: Julia Hancock, Special Assistant, 
China/NME Unit, Office of Antidumping and Countervailing Operations, 
Import Administration, U.S. Department of Commerce, at 202-482-1394.

Background

    In AD proceedings, the Department establishes a cash-deposit rate 
for each company subject to the investigation or review. In market 
economy (``ME'') proceedings, the Department establishes an ``all-
others'' rate that applies to exporters that have not been assigned a 
company-specific rate. See section 735(c)(1)(B)(i)(II) of the Tariff 
Act of 1930, as amended (``the Act''). In NME proceedings, the 
Department establishes an ``NME-wide'' rate that applies to exporters 
that do not qualify for and do not receive a separate rate.\1\
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    \1\ In proceedings involving NME countries, it is the 
Department's policy to assign all exporters of subject merchandise 
in an NME country a single antidumping duty rate, the NME-wide rate, 
unless an exporter can demonstrate that it is sufficiently 
independent of government control so as to be entitled to a 
``separate rate.''
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    In an ME proceeding, importers enter subject merchandise into the 
United States at either a company-specific cash-deposit rate or at the 
all-others rate in ME proceedings. In an NME proceeding, importers 
enter subject merchandise at a company-specific cash-deposit rate, a 
separate rate, or the NME-wide rate. Entries of subject merchandise are 
subject to cash-deposit requirements and are suspended from liquidation 
until the Department instructs CBP to liquidate the entries. See 
section 733(d)(2) of the Act. When no review is requested for a 
particular AD order for a given review period, the Department instructs 
CBP to liquidate all entries of subject merchandise for that period at 
the cash-deposit rate that was required at the time of entry. See 19 
CFR 351.212(c). When a review is requested for a firm for a given 
review period, entries that have been identified by an importer as that 
firm's merchandise remain suspended from liquidation during the 
pendency of the administrative review.
    Sometimes an importer identifies its entry as merchandise from a 
particular firm, but the sales underlying the entry from the firm are 
not reported to and/or reviewed by the Department during the 
administrative review of that firm. Nevertheless, such entries remain 
suspended during the administrative review because they were identified 
as merchandise from a firm under review. During its proceeding, the 
Department determines the merchandise to which its final results of 
administrative review apply. There may be suspended entries to which 
the Department's final review results do not apply.
    In the past, in both ME and NME cases, the Department instructed 
CBP to assess AD duties on entries not examined and/or not otherwise 
covered by the final results of review for a firm that was subject to 
the review at the rate at which the merchandise entered the United 
States, i.e., at the cash-deposit rate in effect at the time of entry. 
However, in May 2003, the Department announced a change to its 
practice. In ME cases with an anniversary month of May 2003 or later, 
the Department began instructing CBP to assess duties at the rate 
applicable to a party that did not have its own antidumping duty rate, 
i.e., the all-others rate, on entries that were suspended at the 
deposit rate of the producer subject to review but that were not 
covered by the final results of review for that firm subject to review. 
See Antidumping and Countervailing Duty Proceedings: Assessment of 
Antidumping Duties, 68 FR 23954 (May 6, 2003) (``2003 Antidumping 
Duties Notice''). In other words, to the extent that a firm did not 
report sales to a particular importer or customer during a given review 
period, the customer or importer is not entitled to a rate that the 
Department previously established for that firm. The Department stated 
that its

[[Page 34047]]

prior practice ``often result[ed] in the use of an inaccurate rate for 
duty assessment * * * where the Department conduct[ed] a review * * * 
[T]he duty rate for non-reviewed resellers (which do not have their own 
rate and where the deposit rate at the time of entry becomes the final 
rate of duty) is based on a previous review of the producer's selling 
experience, not the reseller's selling experience.'' Id., 68 FR at 
23955.
    Because discussions had not fully explored the Department's revised 
practice in the NME context, to date, the Department has not applied 
the 2003 Antidumping Duties Notice in NME cases. Nevertheless, in both 
ME and NME proceedings, the Department maintains an interest in having 
entries liquidated in a manner that is consistent with the final 
results of its administrative reviews. Id., 68 FR 23958. Along these 
lines, the Department has received arguments that some imports from NME 
countries have benefitted from an exporter's previously-established 
cash-deposit rate but have not been reported to the Department during 
the relevant administrative review of the exporter and, therefore, 
should be liquidated at the NME-wide rate. See, e.g., Glycine From the 
People's Republic of China: Final Results of Antidumping Duty 
Administrative Review, 74 FR 41121 (August 14, 2009) and accompanying 
Issues and Decision Memorandum at Comment 7 (which did not change in 
Notice of Amended Final Results of Antidumping Duty Administrative 
Review: Glycine from the People's Republic of China, 74 FR 48223 
(September 22, 2009)); First Administrative Review of Certain Polyester 
Staple Fiber From the People's Republic of China: Final Results of 
Antidumping Duty Administrative Review, 75 FR 1336 (January 11, 2010) 
and accompanying Issues and Decision Memorandum at Comment 3. In such 
situations, because an importer entered merchandise at a particular 
exporter's cash-deposit rate, the assumption at the time of entry was 
that the exporter made the U.S. sale. In certain cases, however, that 
assumption was disproven during the administrative review, as the 
entries did not correspond to the exporter's reported U.S. sales, 
therefore the claimed cash-deposit based on the exporter's rate was not 
appropriate. When the declaration of the exporter's cash-deposit rate 
at the time of entry is inconsistent with the information reported to 
the Department, the liquidation rate applicable to such entries from 
firms without their own separate rate should be the NME-wide rate.
    Additionally, as described in the 2003 Antidumping Duties Notice, 
the practice of liquidating entries at an exporter's cash-deposit rate 
claimed at the time of entry where the entries have been suspended 
pursuant to a request for review of the exporter but are not covered by 
the final results of review for the exporter subject to review allows 
intermediaries to benefit from another firm's rate. 68 FR 23961. Yet, 
as the Court of International Trade stated in connection with the 2003 
Antidumping Duties Notice, ``there is no reason that a reseller or 
importer should be entitled to choose among the rates it prefers when 
none is specific to it, and when it may request its own rate.'' 
Parkdale Int'l, Ltd. v. United States, 491 F. Supp. 2d 1262, 1272 (Ct. 
Int'l Trade 2007). This same logic is applicable to exporters in NME 
proceedings. The Department's proposed refinement of its practice is 
intended to prevent non-reviewed exporters in NME cases from 
benefitting from the rates of other exporters.
    For the above reasons, the Department proposes revising its 
liquidation instructions in NME cases to instruct CBP to liquidate 
entries of merchandise from a non-reviewed exporter at the NME-wide 
rate. The Department proposes to apply this refinement to merchandise 
produced in the NME country and exported to the United States either 
directly from the NME country or from a third-country reseller. 
Regardless of the location of the non-reviewed exporter or reseller, 
when a party does not file a separate-rate application, the Department 
lacks necessary information on the record to determine whether it is 
entitled to a separate rate. By revising the NME liquidation 
instructions in a manner similar to that described in the 2003 
Antidumping Duties Notice, the Department intends to ensure that 
entries are liquidated at the appropriate rate, i.e., the NME-wide rate 
for entries from firms without a separate rate assigned to them.
    This refinement will increase the need for interested parties 
(including exporters and importers of merchandise produced in NME 
countries) to participate in the Department's proceedings. For example, 
exporters and importers of subject merchandise will need to determine 
whether to request an administrative review and file a separate-rate 
application. Through an administrative review, a party can seek a 
separate cash-deposit rate for its merchandise.
    The Department welcomes written comments on this proposed 
refinement of its practice.

Submission of Comments

    As specified above, to be assured of consideration, comments must 
be received no later than 30 days after the publication of this notice 
in the Federal Register. All comments must be submitted through the 
Federal eRulemaking Portal at http://www.regulations.gov, into Docket 
Number ITA-2011-0007, unless the commenter does not have access to the 
Internet. Commenters that 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. Please address the written comments to the Secretary 
of Commerce, Attention: Julia Hancock, Special Assistant, China/NME 
Unit, Antidumping and Countervailing Duty Operations, Room AA118, 
Import Administration, U.S. Department of Commerce, Constitution Avenue 
and 14th Street, NW., Washington, DC 20230.
    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 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].

    Dated: May 25, 2011.
Ronald K. Lorentzen,
Deputy Assistant Secretary for Import Administration.
[FR Doc. 2011-14446 Filed 6-9-11; 8:45 am]
BILLING CODE 3510-DS-P