[Federal Register Volume 76, Number 205 (Monday, October 24, 2011)]
[Notices]
[Pages 65694-65695]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-27459]
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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: Notice of Policy Concerning Assessment of Antidumping Duties.
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SUMMARY: After consideration of public comments, the Department of
Commerce (``the Department'') is hereby adopting a refinement in its
practice with respect to the rate at which it instructs U.S. Customs
and Border Protection (``CBP'') to liquidate certain non-reviewed
entries. Specifically, the Department is refining its practice to
instruct CBP to liquidate such entries at the non-market economy
(``NME'')-wide rate.
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.
SUPPLEMENTARY INFORMATION:
Background
On June 10, 2011, the Department proposed a refinement to its
practice regarding the rate at which it instructs CBP to liquidate
certain entries from non-reviewed exporters. See Non-Market Economy
Antidumping Proceedings: Assessment of Antidumping Duties, 76 FR 34046
(June 10, 2011) (``Proposed Policy''). As explained in the Proposed
Policy, in administrative reviews of antidumping duty (``AD'') orders
covering merchandise produced in NME countries, importers will
sometimes declare in their entry documentation a cash deposit rate that
is associated with a company which has a company-specific rate, as
opposed to the NME-wide rate, but the sales underlying the particular
entry are not reported to or reviewed by the Department in the course
of the administrative review covering that company. As a result, there
may be suspended entries to which the Department's final review results
do not apply. Previously, in such situations, it was the Department's
practice to instruct CBP to assess AD duties at the cash deposit rate
in effect at the time of entry for such entries of merchandise.
In response to the Proposed Policy, the Department received
comments from thirteen parties. After careful consideration of these
comments, the Department has determined to implement the proposed
refinement in practice. The Department will instruct CBP to apply the
NME-wide rate to entries suspended at a reviewed exporter's rate, but
which are not reported to or reviewed by the Department during the
administrative review process. For further detail on what entries this
policy affects, see the ``Applicability'' section below.
Final Refinement in Practice
In AD proceedings, the Department establishes a cash deposit rate
for each company subject to the investigation or review. In NME cases,
if an exporter does not receive a separate rate, the NME-wide rate
applies as the cash deposit rate at the time of entry to entries of
merchandise it exports. Previously, for merchandise entered at the
separate rate applicable to a reviewed exporter, but which were not
reported to the Department in the review and thus not covered by the
final results of the review, the Department instructed CBP to liquidate
such entries at the cash deposit rate in effect at the time of entry.
With the publication of this notice, the Department implements a
policy refinement regarding the rate at which it will instruct CBP to
liquidate such non-reviewed entries. For entries that are not reported
in the reviewed company's U.S. sales databases submitted to the
Department during an administrative review, or otherwise determined not
covered by the review (i.e., the reviewed exporter claims no
shipments), the Department will instruct CBP to liquidate such entries
at the NME-wide rate as opposed to the company-specific rate declared
by the importer at the time of entry.
[[Page 65695]]
This practice in NME proceedings will be consistent with the
application of the same liquidation practice in market economy (``ME'')
proceedings. The goal of this practice in ME proceedings, the accurate
assignment of duties based on information obtained in a review, is not
unique to ME proceedings but is necessary in all antidumping
proceedings. See Antidumping and Countervailing Duty Proceedings:
Assessment of Antidumping Duties, 68 FR 23954 (May 6, 2003). Interested
parties have the right to request an administrative review of their
entries, or to participate in an administrative review, to ensure that
the entries are liquidated at the rate the interested party believes is
proper. See 19 CFR 351.103, et seq.
Applicability
The Department intends to apply the policy to all non-reviewed
entries from exporters which are selected for individual examination,
whether or not the Department is aware of the involvement of a third
party. Additionally, if the Department determines that an exporter
under review had no shipments of the subject merchandise, any suspended
entries that entered under that exporter's case number (i.e., at that
exporter's rate) will be liquidated at the NME-wide rate. See Magnesium
Metal from the Russian Federation: Final Results of Antidumping Duty
Administrative review, 75 FR 56989 (September 17, 2010). This
refinement will not apply to entries suspended at the cash deposit rate
for exporters for which a review is not initiated. Nor does this
refinement apply to entries suspended at the rate of exporters under
review but which are not selected for individual examination (i.e., the
separate rate companies), except where the Department has determined
that the exporter had no shipments covered by the review.
Definition of Exporter
In response to the Proposed Policy, certain parties argued that the
Department should clarify the term ``exporter'' for this refinement in
practice to provide notice to the importers regarding which entity the
importer should consider to be the exporter in a multi-leg transaction
for the purpose of claiming the correct cash deposit rate and having
the entry liquidated in accordance with that expectation. Because of
the variances in commercial practice, it is the Department's
established practice to evaluate an export transaction on a case-by-
case basis within the context of an administrative review or
investigation. Within the framework of an administrative review, the
Department is able to examine additional documentation to decide which
entity was the exporter for purposes of making NME AD determinations.
Because the importer is the party most likely to have the best
information and appropriate documentation regarding the transactions
relevant to the entries, the Department considers it to be the
importer's responsibility to ensure that the documentation of the sales
transaction supports the cash deposit rate the importer claims for its
entries. In order to facilitate the proper identification of the
exporter, the Department will coordinate with CBP to provide guidance
to importers. Likewise, as explained above, any interested party can
file a notice of appearance with the Department to ensure that its
entries are liquidated in accordance with its expectations.
Implementation
As stated in the Proposed Policy, the Department intends to apply
this policy to all entries for which the anniversary month for
requesting an administrative review is the month after the date of
publication of this final notice. See Proposed Policy. This
implementation is consistent with our ME Reseller Practice and with the
Federal Circuit's opinion in Parkdale Int'l v. United States, 475 F.3d
1375, 1378-79 (CAFC 2007) (``the primary effect of the policy is
prospective, i.e., it applies to liquidations post-dating its adoption,
[accordingly] we conclude that its effect cannot properly be considered
impermissibly retroactive''). Therefore, this policy refinement will
apply to all relevant entries, regardless of when entered, for which
the anniversary month for requesting a review of the order is November,
2011 or later.
Dated: October 17, 2011.
Ronald K. Lorentzen,
Deputy Assistant Secretary for Import Administration.
[FR Doc. 2011-27459 Filed 10-21-11; 8:45 am]
BILLING CODE 3510-DS-P