[Federal Register Volume 80, Number 151 (Thursday, August 6, 2015)]
[Rules and Regulations]
[Pages 46793-46795]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-19353]


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DEPARTMENT OF COMMERCE

International Trade Administration

19 CFR Part 351

RIN 0625-AB04
[Docket No.: 150731663-5663-01]


Dates of Application of Amendments to the Antidumping and 
Countervailing Duty Laws Made by the Trade Preferences Extension Act of 
2015

AGENCY: Enforcement and Compliance, International Trade Administration, 
Department of Commerce.

ACTION: Interpretive Rule; Notice of Determination.

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SUMMARY: On June 29, 2015, President Obama signed into law the Trade 
Preferences Extension Act of 2015. The Act provides a number of 
amendments to the antidumping duty (``AD'') and countervailing duty 
(``CVD'') laws but does not specify dates of application for those 
amendments. This notice of determination establishes a date of 
application for each statutory revision pertaining to the Department of 
Commerce and provides notice thereof to all interested parties to AD 
and CVD proceedings and to the public.

DATES: The date of application of this interepretive rule is August 6, 
2015.

FOR FURTHER INFORMATION CONTACT: Robert Heilferty, Deputy Chief Counsel 
for Trade Enforcement and Compliance, U.S. Department of Commerce, 1401 
Constitution Ave. NW., Washington, DC 20230, 202-482-0082.

SUPPLEMENTARY INFORMATION:

Background

    The Trade Preferences Extension Act of 2015, Public Law 114-27 (the 
``Act'') provides five amendments to the AD and CVD laws: (1) Section 
502 amends Section 776 of the Tariff Act of 1930, 19 U.S.C. 1677e, to 
modify the provisions addressing the selection and corroboration of 
certain information that may be used as facts otherwise available with 
an adverse inference in an AD or CVD proceeding; (2) Section 503 amends 
Section 771(7) of the Tariff Act of 1930, 19 U.S.C. 1677(7), to modify 
the definition of ``material injury'' in AD and CVD proceedings; (3) 
Section 504 amends Section 771(15) of the Tariff Act of 1930, 19 U.S.C. 
1677(15), and Section 773 of the Tariff Act of 1930, 19 U.S.C. 1677b, 
to modify the definition of ``ordinary course of trade'' and the 
provisions governing the treatment of a ``particular market situation'' 
in AD proceedings; (4) Section 505 amends Section 773(b)(2) of the 
Tariff Act of 1930, 19 U.S.C. 1677b(b)(2), to modify the treatment of 
distorted prices or costs in AD proceedings; and (5) Section 506 amends 
Section 782(a) of the Tariff Act of 1930, 19 U.S.C. 1677m(a), to modify 
the provision regarding accepting voluntary respondents in AD and CVD 
proceedings.
    The Act does not contain dates of application for any of these 
amendments. As explained below, it would be impracticable for the 
Department to apply at least one of the amendments, Section 505, 
immediately, and extremely difficult to apply the others immediately. 
Accordingly, the Department is establishing dates of application for 
each section, except for Section 503 (which relates to determinations 
of material injury by the U.S. International Trade Commission).
    As an initial matter, we are cognizant of the Supreme Court's 
ruling in Landgraf v. USI Film Prods., 511 U.S. 244 (1994), that, 
absent clear Congressional intent that a statute be applied 
retroactively, a statute may not attach new legal consequences to 
events completed before its enactment. Landgraf, 511 U.S. at 280; see 
also, AT&T Corp. v. Hulteen, 556 U.S. 701 (2009). In determining 
whether the Landgraf prohibition has been breached, important 
considerations are whether the new law takes away or impairs vested 
rights or creates new obligations, imposes a new duty, or attaches a 
new disability in respect to transactions or considerations already 
past. Landgraf, 511 U.S. at 269. Another important consideration is 
whether the prior provision was reasonably relied upon, so that 
application of the new provision would be manifestly unfair. INS v. St. 
Cyr, 533 U.S. 289 (2001).
    In considering whether application of the amended statutes to 
merchandise entered into the United States before the passage of the 
Act would disturb vested rights, create new obligations or upset a 
reasonable reliance, our starting point is the holding of the Supreme 
Court in Buttfield v. Stranahan, 192 U.S. 470, 493 (1904), that ``no 
individual has a vested right to trade with foreign nations. . . .'' 
and that importing merchandise is not a fundamental right that is 
protected by other constitutional privileges such as due process. See 
also NEC Corp. v. United States, 151 F.3d 1361, 1369 (Fed. Cir. 1998). 
More

[[Page 46794]]

specifically, the Supreme Court held in Norwegian Nitrogen Products Co. 
v. United States, 288 U.S. 294, 318 (1933), that no party has a legal 
right to a particular rate of duty.
    It follows that, even assuming that one or more of the Act's 
amendments were to result in a higher rate of duty being applied to 
imported merchandise than otherwise would have been applied, 
application of that higher rate would not disturb a vested right, 
attach a new disability to transactions or considerations already past, 
or upset any legitimate expectation. In other words, the Act does not 
attach any ``new'' legal consequences to past events, because those 
events had no settled legal consequences to begin with and, therefore, 
created no legitimate expectations concerning duty rates. As the Court 
of Appeals for the Federal Circuit (``Federal Circuit'') recently 
observed in GPX Int'l Tire Corp. v. United States, 780 F.3d 1136, 1144 
(Fed. Cir. 2015) ``[a]lthough trade duties are forward-looking in part, 
the government also has a clear interest in fashioning a remedy for 
damaging past acts, `level[ing] the playing field for particular 
American manufacturers,' and `remedy[ing] the harm American 
manufacturers and their workers experience as a result of unfair trade 
practices' '' (quoting Guangdong Wireking Housewares & Hardware Co. v. 
United States, 745 F.3d 1194, 1206 (Fed. Cir. 2014)).
    Other decisions of the Federal Circuit are in accord. In Parkdale 
Int'l v. United States, 475 F.3d 1375 (Fed. Cir. 2007), the Federal 
Circuit ruled that the application of the Department's new policy for 
resellers sales that preceded the announcement of that change in policy 
was not impermissibly retroactive. The Federal Circuit based its 
decision primarily on the fact that, under the U.S. system of duty 
assessment, final duty liability is not set until the entries of the 
imported merchandise are liquidated, which is often many years after 
the date of entry. See, e.g., 19 U.S.C. 1675(a)(2)(C). Thus, importers 
bring goods into the United States with full knowledge that the rates 
of estimated duties deposited with U.S. Customs and Border Protection 
upon importation may change. In Travenol Labs., Inc. v. United States, 
118 F.3d 749, 753-54 (Fed. Cir. 1997), the Federal Circuit ruled that 
the application of an amendment to customs law that changed the time 
period in which interest was calculated for overpayment of duties to 
goods that entered the United States prior to enactment of the law was 
not impermissibly retroactive.
    Many decisions of the Court of International Trade agree. In GPX 
Int'l Tire Corp. v. United States, 893 F. Supp. 2d 1296, 1314 (Ct. 
Int'l. Trade 2013), the court observed that ``customs duties are to an 
extent unique from other government assessments in that there is no 
right to import, and where unfair trade remedies apply those with goods 
that may be imported rarely can predict with accuracy what the duty 
will be [referencing Norwegian Nitrogen Prods. Co. v. United States, 
288 U.S. 294, 318 (1933)]. For example, when goods become the subject 
of an AD/CVD investigation, liquidation is suspended while the initial 
investigation is undertaken, and generally while a review is conducted, 
prior to a final rate determination and duty assessment. See Parkdale 
Int'l v. United States, 475 F.3d 1375, 1376-77 (Fed. Cir. 2007).'' 
Similarly, in Yamani Fishing Net Co. v. United States, 830 F. Supp. 
1502, 1507 (Ct. Int'l Trade 1993), the Court ruled that the application 
of a new regulation creating additional requirements for the submission 
of information to Commerce to a segment of an AD proceeding initiated 
before the promulgation of that regulation was not impermissibly 
retroactive.
    Based on these precedents, we have determined that implementing 
these statutory amendments immediately, including to merchandise which 
entered into the United States before the passage of the Act, would not 
be impermissibly retroactive. In determining dates of application, 
therefore, we have been guided by Congress's intention that each 
amendment be implemented as soon as practicably possible. Accordingly, 
we have determined the earliest date at which each amendment 
practicably could be implemented and established that date as the date 
of application of that particular revision to the statute. This 
approach results in individual dates of application for different 
provisions of the Act, as explained below.
    Section 502 of the Act amends Section 776 of the Tariff Act of 
1930, 19 U.S.C. 1677e, to revise the provisions addressing the 
selection and corroboration of certain information that may be used as 
an adverse inference in applying facts available in an AD or CVD 
proceeding. These amendments provide that the Department may rely on, 
and is not required to adjust, certain information used as an adverse 
inference in applying facts available in an AD or CVD proceeding. They 
do not impose any new requirements on the parties to such proceedings 
that would require them to submit additional information or argument. 
Accordingly, we will apply this provision to determinations made on or 
after August 6, 2015.
    We note that Section 502 provides that, in making AD and CVD 
determinations on the basis of the facts available, the Department is 
not required to corroborate, in certain circumstances, the information 
employed, to make certain estimates or demonstrations concerning that 
information, or to address certain claims regarding the ``alleged 
commercial reality'' of non-cooperating parties. Because this section 
addresses the Department's discretion and, thus, does not require the 
Department to take any specific actions with respect to facts available 
determinations, it will be applied to determinations made on or after 
August 6, 2015. Although the amendment does not interfere with the 
operation of 19 CFR 351.308(d), the Department intends to consider 
whether to amend that regulation as a result of the amendment to the 
statute.
    Section 504 of the Act amends Sections 771(15) of the Tariff Act of 
1930, 19 U.S.C. 1677(15), and Section 773 of the Tariff Act of 1930, 19 
U.S.C. 1677b, to modify the definition of ``ordinary course of trade'' 
and the provisions governing the treatment of a ``particular market 
situation'' in AD proceedings. Because this section codifies the 
Department's discretion and does not require the Department to take any 
action with respect to particular market situations, we will apply this 
provision to determinations made on or after August 6, 2015. The 
Department's regulation, 19 CFR 351.301(c)(2)(i), establishes a 
deadline for ``particular market situation'' allegations of ``10 days 
after the respondent interested party files the response to the 
relevant section of the questionnaire, unless the Secretary alters this 
time limit.'' The amendment does not require the alteration of this 
deadline, and so the regulation will continue to apply as before.
    Section 505 of the Act amends Section 773(b)(2) of the Tariff Act 
of 1930, 19 U.S.C. 1677b(b)(2), to modify the treatment of distorted 
prices or costs in AD proceedings. It has two parts. Under the first 
part of the amendment of Section 773(b)(2) of the Tariff Act of 1930, 
19 U.S.C. 1677b(b)(2), the Department will request constructed value 
and cost of production information from respondent companies in all AD 
proceedings. The Department recognizes that it can cannot ask for such 
information in ongoing proceedings in which the time for doing so has 
passed. Accordingly, the Department will apply the new law to

[[Page 46795]]

determinations in which the complete initial questionnaire has not been 
issued as of August 6, 2015.
    The second part of Section 505 amends Section 773(c)(5) of the 
Tariff Act of 1930, 19 U.S.C. 1673b(c)(5), to permit the Department to 
disregard price or cost values without further investigation if it has 
determined that certain subsidies have existed with respect to those 
values, or if those price or cost values were subject to an AD order. 
This amendment clarifies the Department's authority for its existing 
practice, and does not impose any new requirements on the parties to AD 
proceedings that would require them to submit additional information or 
argument. Accordingly, we will apply this provision to determinations 
made on or after August 6, 2015.
    Section 506 of the Act amends Section 782(a) of the Tariff Act of 
1930, 19 U.S.C. 1677m(a), to identify the factors that the Department 
may take into account in determining whether accepting voluntary 
responses would be unduly burdensome. This amendment compliments the 
Department's voluntary respondent analysis and does not require parties 
to AD and CVD proceedings to submit additional information or argument. 
Accordingly, we will apply this provision to determinations made on or 
after August 6, 2015.

Classification

    Pursuant to 5 U.S.C. 553(b)(A), notice and comment are not required 
for this rule because its intent is to interpret the Trade Preferences 
Extension Act to apply as explained above and to provide notice to the 
public. This interpretation is meant to lend clarity to the statutory 
terms and will reduce or eliminate any possible confusion about the 
application of the Act without creating any new law, rights or duties. 
See General Motors Corp. v. Ruckelshaus, 742 F.2d 1561, 1565 (D.C. Cir. 
1984) (en banc) (finding that EPA's rule was interpretive because ``the 
agency regarded its rule as interpretive''; ``[its] entire 
justification for the rule is comprised of reasoned statutory 
interpretation, with reference to the language, purpose and legislative 
history of the [provision]''; and ``most importantly, the rule did not 
create any new rights or duties . . .''). Because notice and an 
opportunity for comment are not required, no regulatory flexibility 
analysis is required and none has been prepared. The rule has been 
determined to be not significant for purposes of Executive Order 12866.

    Dated: July 31, 2015.
Ronald K. Lorentzen
Acting Assistant Secretary for Enforcement and Compliance.
[FR Doc. 2015-19353 Filed 8-5-15; 8:45 am]
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