WORLD TRADE  
ORGANIZATION  G/ADP/N/1/USA/1/Suppl.7 
G/SCM/N/1/USA/1/Suppl.7 10 August 2007 
 
(07-3373) 
Committee on Anti-Dumping Practices  
Committee on Subsidies and Countervailing Measures Original:   English 
 
 
 
NOTIFICATION OF LAWS AND REGULATIONS  
UNDER ARTICLES 18.5 AND 32.6 OF THE AGREEMENTS  
 
UNITED STATES 
 
Supplement  
   The following communication, dated 2 August 2007,  is being circulated at the request of the 
Delegation of the United States. 
 
_______________ 
 
  Attached are the legislative notifications, pur suant to Article 32.6 of the Agreement on 
Subsidies and Countervailing Measures and Article  18.5 of the Agreement on Implementation of 
Article VI of the General Agreement on Tariffs and Trade 1994, of the Pension Protection Act of 
2004, relating to new shipper reviews; and Proce dures for Conducting Five-Year ("Sunset") Reviews 
of Antidumping and Countervailing Duty Orders, 19 CFR Part 351, amending the "waiver" provisions 
which govern treatment of interested parties who do  not provide a substantive response to the notice 
of initiation of a sunset review and clarify the basis for parties' participation in a public hearing in an 
expedited review.    G/ADP/N/1/USA/1/Suppl.7 
G/SCM/N/1/USA/1/Suppl.7 Page 2 
 
 
   
PENSION PROTECTION ACT OF 2006 
 
Public Law 109-280 109th Congress 
 
* * * 
 SEC. 1632.  SUSPENSION OF NEW SHIPPER REVIEW PROVISION 
 
 (a)  Suspension of the Availability of B onds to New Shippers.  Clause (iii) of 
section 751(a)(2)(B) of the Tariff Act of 193 0 (19 U.S.C. 1675(a)(2)(B)(iii)) shall not 
be effective during the period beginning on 1 April 2006, and ending on 30 June 2009. 
  (b)  Report on the Impact of the Suspension.  Not later than 31 December 2008, the 
Secretary of the Treasury, in consultati on with the Secretary of Commerce, the 
United States Trade Representative, and th e Secretary of Homeland Security, shall 
submit to the Committee on Ways and Means of the House of Representatives and the 
Committee on Finance of the Senate a report containing: 
   (1)  recommendations on whether the suspension of section 751(a)(2)(B)(iii) of the 
Tariff Act of 1930 should be extended beyond the date provided in subsection 
(a);  and 
 
  (2)  an assessment of the effectiveness  of any administrative measure that was 
implemented to address the difficulties that necessitated the suspension under 
subsection (a), including: 
   (A)  any problem in the collection of antidumping duties on imports from 
new shippers;  and 
   (B)  any burden imposed on legitimate trade and commerce by the 
suspension of bonds to new shippers. 
  (c)  Report on Collection Problems and Analysis of Proposed Solutions. 
 
  (1)  Report.  Not later than 180 days after the date of the enactment of this Act, the 
Secretary of the Treasury, in consultation with the Secretary of Homeland  
Security and the Secretary of Comme rce, shall submit to the Committee on 
Ways and Means of the House of Representatives and the Committee on Finance of the Senate a report describing: 
 
  (A)  any major problem experienced in the collection of duties during the 
four most recent fiscal years for which data are available, including any 
fraudulent activity intended to avoid payment of duties;  and 
 
   (B)  an estimate of the total amount of duties that were uncollected during 
the most recent fiscal year for which data are available, including, with respect to each product, a description of why the duties were 
uncollected. 
   (2)  Recommendations.  The report shall include: 
  G/ADP/N/1/USA/1/Suppl.7 
 G/SCM/N/1/USA/1/Suppl.7  Page 3 
 
 
    (A)  recommendations on any additi onal action needed to address problems 
related to the collection of duties;  and 
 
   (B)  for each recommendation:  
  (i)  an analysis of how the recommendation would address the 
specific problem;  and 
 
  (ii)  an assessment of the impact that implementing the 
recommendation would have on international trade and commerce (including any additional costs imposed on 
United States businesses). 
 G/ADP/N/1/USA/1/Suppl.7 
G/SCM/N/1/USA/1/Suppl.7 Page 4 
 
 
  70 FR 62061, 28 October 2005 
 
DEPARTMENT OF COMMERCE 
 
International Trade Administration 
19 CFR Part 351 
 
[Docket No. 050803215-5260-02] 
RIN 0625-AA69 
  
Procedures for Conducting Five-Year ("Sunset") Re views of Antidumping and Countervailing Duty 
Orders  
AGENCY:  Import Administration, International Tr ade Administration, Department of Commerce. 
 
ACTION:  Final rule. 
 --------------------------------------------------------------------------------------------------------------------------- 
 
SUMMARY:  The Department of Commerce ("the Department") is amending its regul ations related 
to sunset reviews to conform the existing re gulation to the United States' obligations under 
Articles 6.1, 6.2, and 11.3 of the Agreement on the Implementation of Artic le VI of the General 
Agreement on Tariffs and Trade 1994 ("Antidumpi ng Agreement").  The regulations amend the 
"waiver" provisions which govern treatment of inte rested parties who do not provide a substantive 
response to the Department's notice of initiation of a sunset review and clarify the basis for parties' 
participation in a public hearing in an expedited sunset review. 
 
DATES:  The effective date of this final rule is 31 October 2005.  The final rule will be applied in 
sunset reviews initiated on or after the effective date.  
FOR FURTHER INFORMATION CONTACT:  Stacy J. Ettinger or Patrick V. Gallagher, Office of 
the Chief Counsel for Import Administration, room 3622, US Department of Commerce, 
Pennsylvania Avenue and 14th Street NW., Washi ngton, DC 20230; telephone: (202) 482-4618 or 
(202) 482-5053, respectively.  
SUPPLEMENTARY INFORMATION: 
 Background
 
 
 On 20 March 1998, the Department publishe d regulations addressing the procedures for 
participation in, and conduct of, sunset reviews.  See 63 FR 13516.  On 17 December 2004, the 
Dispute Settlement Body ("DSB") of the World Tr ade Organization adopted the reports of the 
Appellate Body and the dispute settlement panel in United States - Sunset Reviews of Anti-dumping 
Measures on Oil Country Tubul ar Goods from Argentina , WT/DS268/AB/R (29 November 2004) and 
WT/DS268/R (16 July 2004), respectively.  The AB  and the dispute settlement panel found that the 
waiver provisions of section 751(c)(4)(B) of th e Tariff Act of 1930 and section 351.218(d)(2)(iii) of 
Commerce's sunset regulations are inconsistent with  Articles 6.1, 6.2, and 11.3 of the Antidumping 
Agreement. 
  Section 123 of the URAA governs the process fo r changes to the Department's regulations 
where a dispute settlement panel and/or the Appe llate Body finds a regulatory provision to be 
inconsistent with any of the WTO agreements .  Consistent with section 123(g)(1)(C), on  G/ADP/N/1/USA/1/Suppl.7 
 G/SCM/N/1/USA/1/Suppl.7  Page 5 
 
 
  15 August 2005, the Department published proposed amen dments to its regulations related to sunset 
reviews to conform the existing regulations to the United States' obligations under Articles 6.1, 6.2, 
and 11.3 of the Antidumping Agreement.  The Department received four sets of written public 
comments on the proposed amendments.  The Depart ment has carefully considered each of the 
comments it received, and has adopted a drafting s uggestion from one commenter related to the issue 
of the basis for parties' participating in a hearing in  an expedited sunset review.  This final rule is 
published pursuant to section 123(g)(1)(F) of the URAA.  The final rule amends the "waiver" 
provisions which govern treatment of interested pa rties who do not provide a complete substantive 
response to the Department's Notice of Initiation of a sunset review and clarifies the basis for parties' 
participation in a public hearing in an expedited sunset review. 
 
Explanation of Amendments
 
  In finalizing the amendments to the Depart ment's regulations addressing the procedures for 
participation in, and conduct of, s unset reviews, the Department carefully considered each of the 
comments it received.  The following is an explan ation of the amendments, as well as a summary of 
the comments received and the Departme nt's responses to those comments. 
 Section 351.218
 
 
 Section 751(c)(4)(B) of the Tariff Act provides that where an interested party "waives" its participation in a sunset review, the Department "shall conclude that revocation of the order * * * 
would be likely to lead to continuation or recurre nce of dumping or a countervailable subsidy (as the 
case may be) with respect to that interested party." Paragraph (d)(2) of 19 CFR 351.218 deals with the 
procedure for waiving participation in a sunset  review before the Department.  Specifically, 
paragraph (d)(2)(i) provides for filing a "statement of waiver" for parties electing not to participate in 
the Department's sunset review (so-called "affirm ative waiver"), and paragraph (d)(2)(iii) provides 
that failure to file a complete substantive respon se to a notice of initiation also will be treated as a 
waiver of participation (so-calle d "deemed waiver").  The panel a nd Appellate Body found that the 
operation of the statutory and regulatory waiver provi sions was inconsistent with the obligation under 
Article 11.3 to arrive at a "reasoned conclusi on" because the Department's order-wide likelihood 
determination would be based, at least in part , on statutorily-mandated "assumptions" about a 
company's likelihood of dumping.  The AB and panel also found that the operation of 
paragraph (d)(2)(iii) was inconsiste nt with "due process rights" of Articles 6.1 and 6.2, because the 
Department could assume likelihood with respect to a particular company even though that party had 
filed a substantive response to the notice of initiation, albeit an "incomplete" response. 
 
 To implement the AB and panel findings w ith respect to the operation of the waiver 
provisions, the Department has modified its regulations to eliminate the possibility that the 
Department's order-wide likelihood determinations  would be based on assumptions about likelihood 
of continuation or recurrence of dum ping or a countervailable subsidy due to interested parties' waiver 
of participation in sunset reviews.  Specifica lly, the Department has made the following three 
modifications to paragraph (d)(2) of 19 CFR 351.218.   First, with respect to so-called "affirmative 
waivers" set forth in paragraph (d)(2)(i) - which pr ovides that a party may elect not to participate in 
the Department's sunset review by filing a "stateme nt of waiver" within 30 days of initiation of the 
sunset review - the Department has amended the c ontents of a "statement of waiver" which are set 
forth in paragraph (d)(2)(ii).  Paragraph (d)(2)(ii)  now requires that a party filing a Statement of 
Waiver include a statement that it is likely to du mp or benefit from a countervailable subsidy (as the 
case may be) or, in the case of a foreign gove rnment in a CVD sunset review, provide a 
countervailable subsidy, if the orde r is revoked or the investigation is  terminated.  Second, we have 
eliminated paragraph (d)(2)(iii) - which provided that an interested party is "deemed" to have waived 
participation in the sunset review by failing to fi le a complete substantive response to a notice of 
initiation.  Thus, the Department will no longer  make company-specific likelihood findings for G/ADP/N/1/USA/1/Suppl.7 
G/SCM/N/1/USA/1/Suppl.7 Page 6 
 
 
  companies that fail to file a statement of waiver a nd fail to file a substantive response to the notice of 
initiation.  Finally, we modified paragraphs (d)(2)(i v)(C) and (e)(1)(ii)(B)(3) - which address waiver 
of participation by a foreign government in a CVD sunset review - to eliminate cross-references to 
paragraph (d)(2)(iii) and to elimin ate certain language that might suggest the possibility that the 
Department's order-wide likelihood  determination in a CVD sunset review would be based on 
assumptions about likelihood of continuation or recu rrence of a countervailable subsidy.  In sum, 
these three modifications to the waiver provisions of the Department's sunset regulations ensure that 
there is no longer the possibility that the Department 's order-wide likelihood determinations might be 
based on assumptions about likelihood of continuati on or recurrence of dumping or a countervailable 
subsidy.  The Department will make  its order-wide likelihood determina tions on the basis of the facts  
and information available on the record of the sunset review. 
 
 Two commenters argue that amendment or withdrawal of the statutory provision (section 751(c)(4)(B) of the Act) found to be WTO-in consistent was required in order to implement 
the AB/panel findings.  We disagree.  By modifyi ng its regulatory waiver provisions, the Department 
has eliminated the possibility that its order-wid e likelihood determinations would be based on 
assumptions about likelihood of continuation or recu rrence of dumping or a countervailable subsidy 
due to interested parties' waiver of participation in sunset reviews.  Section 751(c)(4)(B) of the Act 
only mandates an affirmative company-specific likelihood finding as a consequence of a party 
electing to waive its participation in the sunset  review.  Thus, the modified regulatory waiver 
requirements result in elimination of any assump tions about likelihood because a party waiving 
participation would have already indicated to the Department that it was likely to dump or benefit 
from a countervailable subsidy if the order were revoked. 
  Two commenters also noted that the regulations would not longer specify how the 
Department will address the situation where a pr oducer/exporter does not participate in a sunset 
review.  The commenters are correct in part.  While it is the statute that provides for determinations 
on the basis of facts available where, inter alia , a party does not provide requested information 
(section 776 of the Act), there are specific provision s in the Department's re gulations concerning use 
of facts available in a sunset review (19 CFR 351. 308(f)).  As a general matter, the Department will 
make its order-wide likelihood determination on the b asis of the facts and information available on the 
record of the sunset review which may include, wh ere appropriate, use of facts available as provided 
for in the statute and regulations. 
 
Section 351.309
 
 
 The Appellate Body upheld the panel's finding  that the operation of paragraph (d)(2)(iii) of 
19 CFR 351.218 was inconsistent with Article 6.2 in that  it allegedly denies an interested party that is 
deemed to have waived its right to participate in a sunset review by submitting an incomplete 
substantive response the right to participate in a hearing.  Paragraph (d)(2)(iii) does not explicitly 
address the issue of hearings; nor do the regulations  preclude hearings in expedited sunset reviews 
resulting from the application of the waiver provisions.  Nevertheless, in the interest of alleviating any 
perceived confusion with respect to participation in a hearing in an expedited sunset review, the 
Department is modifying paragra ph (c)(1)(iii) of 19 CFR 351.309 to clarify that the Secretary will 
specify a due date for case briefs in an expedited sunset review.  Case briefs provide the basis for 
parties' affirmative presentations at a hearing.  In addition, as discussed above, for other reasons we 
have eliminated paragraph (d)(2)(iii) in its entirety.  
 One commenter argued that providing for fili ng of case briefs in expedited reviews could 
eliminate the distinction between  expedited and full sunset reviews.  The commenter proposed, 
instead, that the regulations provide respondents with  an opportunity to supplement their substantive 
responses to correct identified deficiencies.  We have not adopted this suggestion.  The central 
distinction between an expedited and full sunset review remains.  In a full sunset review, the  G/ADP/N/1/USA/1/Suppl.7 
 G/SCM/N/1/USA/1/Suppl.7  Page 7 
 
 
  regulations provide that the Department will issu e a preliminary determination and allow comments 
on that determination; there is no provision for issuance of a preliminary determination in an 
expedited sunset review.  Clarifying the basis for parties' participation in a public hearing in an 
expedited sunset review does not change this distin ction.  The commenter also suggested that if the 
Department permits the filing of case briefs in an  expedited review, it s hould make a corresponding 
amendment to paragraph (e)(1)(ii)(C)(2) of 19 CFR 351.218.  We agree and have eliminated certain 
language in paragraph (e)(1)(ii)(C )(2) that could be construed as in consistent with permitting parties 
to file case briefs in expedited sunset reviews. 
 
Classification
 
 E.O. 12866 
 
 This final rule has been determined to be not significant under E.O. 12866. 
 
Administrative Procedures Act
 
 
 The Department finds good cause to waive the 30-day delay in effectiveness pursuant to 
5 U.S.C. 553(d)(3) in order to complete require ments mandated by the World Trade Organization 
("WTO") Appellate Body by 17 December 2005.  On 17 December 2004, the WTO Appellate Body 
("AB") issued its findings regarding the sunset review of the antidumping duty order on Oil Country 
Tubular Goods ("OCTG") from Argentina.  The WTO- appointed arbitrator dete rmined, with reference 
to the Appellate Body report, that the United States  must bring its laws into compliance with the 
Antidumping Agreement and complete another sun set review of the antidumping duty order on 
OCTG from Argentina not later than 17 December 2005.  The Department was informed of this 
deadline date on 7 June 2005.  On 15 Augus t 2005 (70 FR 47738), the Department published a 
proposed rule to solicit comments on proposed revisions to its regulations related to sunset reviews.  
In addition, the Department initia ted consultations for 60 days with the relevant congressional 
committees in accordance with section 123 of the Uruguay Round Agreements Act.  After the 
publication of this final rule, the Department still mu st initiate the sunset review, provide interested 
parties with 30 days to submit their responses to th e Department's sunset questionnaire, analyze the 
responses, and make a final likelihood determinati on in the sunset review before 17 December 2005. 
Thus, in order to meet the WTO-mandated implementa tion date and to ensure that interested parties 
have an opportunity to participate fully in the sunset review, the Department finds good cause to 
waive the 30-day delay in effectiveness of the fi nal rule and makes these regulations effective on 
31 October 2005, upon conclusion of the 60-day congressional consultation period required by the 
Uruguay Round Agreements Act. 
 Paperwork Reduction Act
 
 
 Notwithstanding any other provision of law, no person is required to respond to nor shall a 
person be subject to a penalty for a failure to comp ly with a collection of information subject to the 
requirements of the Paperwork Reduction Act unl ess that collection of information displays a 
currently valid Office of Manage ment and Budget (OMB) control numbe r.  This final rule involves 
collection-of-information requirements subject to the Paperwork Reduction Act, 44 U.S.C. 
Chapter 35.  The requirements have been a pproved by OMB under control numbers 0625-0105 and 
0625-0148.  E.O. 12612 
 
 This final rule does not contain federalism implications warranting the preparation of a 
Federalism Assessment. 
 G/ADP/N/1/USA/1/Suppl.7 
G/SCM/N/1/USA/1/Suppl.7 Page 8 
 
 
  Regulatory Flexibility Act
 
 
 The Chief Counsel for Regulation of the Depa rtment of Commerce has certified to the Chief 
Counsel for Advocacy of the Small Business Admini stration that this final rule will not have a 
significant impact on a substantial number of small entities.  The factual basis for the certification was 
published in the proposed rule and is not repeated  here.  No comments were received regarding the 
economic impact of this action.  As a result, a regulatory flexibility analysis was not prepared.  
List of Subjects in 19 CFR Part 351
 
  Administrative practice and procedure, Antidumping duties, Business and industry, Cheese, 
Confidential business information, Countervailing duti es, Investigations, Reporting and recordkeeping 
requirements.  
 Dated:  20 October 2005. 
 Joseph A. Spetrini, 
 Acting Assistant Secretary for Import Administration. 
  For the reasons stated, 19 CFR part 351 is amended as follows: 
 
PART 351 - ANTIDUMPING AN D COUNTERVAILING DUTIES 
 
Subpart B - Antidumping and Countervailing Duty Procedures 
 1.  Section 351.218 is amended by  revising paragraphs (d)(2)(ii) introductory text, (d)(2)(iv)(C), 
(e)(1)(ii)(B) introductory text, (e)(1)(ii)(B)(3), and (e)(1)(ii)(C)(2), and removing and reserving 
paragraph (d)(2)(iii), as follows:  
Sec. 351.218  Sunset reviews under section 751(c) of the Act. 
 
* * * * * 
 (d)  * * * 
 (2)  * * * 
 (ii)  Contents of statement of waiver.  Ever y statement of waiver must include a statement 
indicating that the respondent interested party waives participation in the sunset 
review before the Department; a statement that the respondent interested party is 
likely to dump or benefit from a countervailable subsidy (as the case may be) if the 
order is revoked or the investigation is  terminated; in the case of a foreign 
government in a CVD sunset review, a stat ement that the government is likely to 
provide a countervailable subsidy if the or der is revoked or the investigation is 
terminated; and the following information: 
 
* * * * * 
 (iv)  * * *  C)  Base the final results of review on th e facts available in accordance with 351.308(f). 
 
* * * * * 
 
 (e)  Conduct of sunset review - (1) * * * 
 (ii)  * * *  (B)  Failure of a foreign government to file  a substantive response to a notice of initiation 
in a CVD sunset review.  If a foreign govern ment fails to file a complete substantive 
response to a notice of initiation in a CVD sunset review under paragraph (d)(3)(v) of  G/ADP/N/1/USA/1/Suppl.7 
 G/SCM/N/1/USA/1/Suppl.7  Page 9 
 
 
  this section or waives participation in a C VD sunset review under paragraph (d)(2)(i) 
of this section, the Secretary will: * * * 
  
 (3)  Base the final results of review on th e facts available in accordance with 351.308(f). 
 
 (C)  * * * 
 (2)  Normally will conduct an expedited sunset  review and, not later than 120 days after 
the date of publication in the Federal Register of the notice of initiation, issue final results of 
review based on the facts available in accordance with Sec. 351.308(f) (see 
section 751(c)(3)(B) of the Act and Sec. 351.221(c)(5)(ii)). 
 
* * * * * 
 Subpart C - Information and Argument
 
 
2.  Section 351.309 is amended by revising  paragraph (c)(1)(iii) to read as follows: 
 
Sec.  351.309  Written argument  
 
* * * * * 
 (c)  Case brief. (1) * * *  
 (iii)  For the final results of an expedite d sunset review, expedited antidumping review, 
Article 8 violation review, Ar ticle 4/Article 7 review, or  section 753 review, a date 
specified by the Secretary. 
 
* * * * * 
 
[FR Doc. 05-21468 Filed 10-28-05; 8:45 a.m.] 
 BILLING CODE 3510-DS-P 
 
 
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