Federal Register / Vol. 77, No. 30 / Tuesday, February 14, 2012 / Rules and Regulations 8101 

1The Department may also use constructed 

export prices, if appropriate. Because the use of 

export prices or constructed export prices is not 

relevant to the substance of this notice, the 

Department refers only to export prices hereafter. 

2 In addition to weighted-average comparison 

market prices, the Department may base normal 

value on constructed value or appropriately valued 

factors of production, where required by law or 

regulation. 

3Section 771(35)(A) of the Tariff Act of 1930 

(‘‘the Act’’) defines the dumping margin as the 

amount by which normal value ‘‘exceeds’’ export 

price (or constructed export price). Section 

771(35)(B) defines the weighted-average dumping 

margin as the percentage determined by dividing 

the aggregate dumping margins determined for a 

specific exporter or producer by the aggregate 

export or constructed export price of that exporter 

or producer. 

4 United States-Laws, Regulations and 

Methodology for Calculating Dumping Margins 

(‘‘Zeroing’’) (‘‘US—Zeroing (EC)’’), WT/DS294/R, 

WT/DS294/AB/R, adopted May 9, 2006; United 

States-Measures Related to Zeroing and Sunset 

Reviews (‘‘US—Zeroing (Japan)’’), WT/DS322/R, 

WT/DS322/AB/R, adopted Jan. 23, 2007; United 

States-Final Anti-Dumping Measures on Stainless 

Steel from Mexico (‘‘US—Stainless Steel (Mexico)’’), 

WT/DS344/R, WT/DS344/AB/R, adopted May 20, 

2008; United States-Continued Existence and 

Application of Zeroing Methodology (‘‘US— 

Continued Zeroing (EC)’’), WT/DS350/R, WR/ 

DS350/AB/R, adopted Feb. 19, 2009. 

5US—Zeroing (EC), WT/DS294/R, WT/DS294/ 

AB/R, para. 263(a)(i); US—Zeroing (Japan), WT/ 

DS322/R, WT/DS322/AB/R, para. 190(c) & 190(e); 

US—Stainless Steel (Mexico), WT/DS344/R, WT/ 

DS344/AB/R, paras. 165(a) & 165(b); US— 

Continued Zeroing (EC), WT/DS350/R, para. 8.1(e), 

WT/DS350/AB/R, paras. 395(a)(v), 395(d) & 

395(e)(ii). 

6US—Zeroing (EC), WT/DS294/AB/RW, para. 

469(h)(iv) & (vi); US—Zeroing (Japan), WT/DS322/ 

AB/R, para. 190(f); US—Continued Zeroing (EC), 

WT/DS350/R, para. 8.1(f), WT/DS350/AB/R, para. 

395 (f). 

7Pursuant to section 777A(d)(1)(A) of the Act, in 

an investigation, the Department may determine 

whether the subject merchandise is being sold at 

less than fair value by comparing normal values of 

individual transactions to the export prices of 

individual transactions for comparable merchandise 

(the transaction-to-transaction comparison method). 

The Department’s regulations state that the 

Department will use the transaction-to-transaction 

method only in unusual situations, such as when 

there are very few sales of subject merchandise and 

the merchandise sold in each market is identical or 

very similar or is custom-made. 19 CFR 

351.414(c)(1). 

DEPARTMENT OF COMMERCE 

International Trade Administration 

19 CFR Part 351 

[Docket No. 101130598–2109–03] 

RIN 0625–AA87 

Antidumping Proceedings: Calculation 

of the Weighted-Average Dumping 

Margin and Assessment Rate in 

Certain Antidumping Duty 

Proceedings; Final Modification 

AGENCY: Import Administration, 

International Trade Administration, 

Department of Commerce. 

ACTION: Final rule; Final Modification. 

SUMMARY: The Department of Commerce 

(‘‘the Department’’) is modifying its 

methodology regarding the calculation 

of the weighted-average dumping 

margins and antidumping duty 

assessment rate in certain segments of 

antidumping duty proceedings 

(hereinafter, ‘‘Final Modification for 

Reviews’’). Currently, in a review of an 

antidumping duty order conducted 

under 19 CFR 351.213 (administrative 

review), 351.214 (new shipper review), 

and 351.215 (expedited antidumping 

review) (collectively ‘‘reviews’’), the 

Department usually makes comparisons 

between transaction-specific export 

prices and average normal values and 

does not offset the amount of dumping 

that is found with the results of 

comparisons for which the transactionspecific export price, or constructed 

export price, exceeds normal value. 

Several World Trade Organization 

(‘‘WTO’’) dispute settlement reports 

have found that the United States’ 

application of these methodologies was 

inconsistent with its WTO obligations. 

Under this Final Modification for 

Reviews, the Department will calculate 

weighted-average margins of dumping 

and antidumping duty assessment rates 

in a manner which provides offsets for 

non-dumped comparisons while using 

monthly average-to-average (‘‘A–A’’) 

comparisons in reviews, paralleling the 

WTO-consistent methodology that the 

Department applies in original 

investigations. The Department is also 

modifying its practice in five-year 

(‘‘sunset’’) reviews, such that it will not 

rely on weighted-average dumping 

margins that were calculated using the 

methodology found to be WTOinconsistent. The schedule for 

implementing these changes is set forth 

in the ‘‘Timetable’’ section in 

SUPPLEMENTARY INFORMATION. 

DATES: This Final Rule and Final 

Modification for Reviews are effective 

April 16, 2012. The modification in the 

methodology will apply to preliminary 

determinations issued after April 16, 

2012. 

FOR FURTHER INFORMATION CONTACT: 

Rachael Nimmo, U.S. Department of 

Commerce, 14th Street and Constitution 

Avenue NW., Washington, DC 20230; 

telephone: 202–482–0836. 

SUPPLEMENTARY INFORMATION: 

Background 

In antidumping duty proceedings, the 

Department determines margins of 

dumping by comparing normal value 

with the export price 1 of comparable 

merchandise. Prior to this Final Rule 

and Final Modification for Reviews, the 

Department typically has compared 

normal value and export price using the 

average-to-transaction (‘‘A–T’’) method, 

which involved a comparison of the 

weighted-average normal value 2 to the 

export price of individual transactions 

for comparable merchandise. When 

aggregating the results of these 

comparisons to determine the weightedaverage margin of dumping in a review, 

the Department did not offset the results 

of the comparisons for which export 

price was less than normal value by the 

results of comparisons for which export 

price exceeded normal value.3 When 

determining importer-specific 

assessment rates in a review, the 

Department similarly aggregated the 

results of importer-specific comparison 

results and did not offset the 

comparison results for which export 

price was less than normal value by the 

comparison results for which export 

price exceeded normal value. 

This methodology was challenged as 

being inconsistent with the WTO 

General Agreement on Tariffs and Trade 

1994 (‘‘GATT 1994’’) and the Agreement 

on Implementation of Article VI of the 

GATT 1994 (‘‘Antidumping 

Agreement’’) in several disputes.4 The 

WTO Appellate Body in US—Zeroing 

(EC), US—Zeroing (Japan), US— 

Stainless Steel (Mexico), and US— 

Continued Zeroing (EC) found the 

denial of offsets for non-dumped 

comparisons in antidumping duty 

reviews to be inconsistent with Article 

9.3 of the Antidumping Agreement and 

Article VI:2 of the GATT 1994, either 

‘‘as such,’’ or ‘‘as applied’’ in certain 

reviews, or both.5 The WTO Dispute 

Settlement Body has adopted the 

dispute settlement panel reports, as 

modified by the WTO Appellate Body, 

which found the denial of offsets for 

non-dumped comparisons in reviews to 

be inconsistent with the United States’ 

WTO obligations. 

Additionally, in US—Zeroing (EC), 

US—Zeroing (Japan), and US— 

Continued Zeroing (EC), the WTO 

Appellate Body found that the reliance 

on weighted-average margins of 

dumping calculated without granting 

offsets for non-dumped comparisons as 

the basis for determinations made in 

certain sunset reviews was inconsistent 

with Article 11.3 of the Antidumping 

Agreement.6 In US—Zeroing (Japan), 

the WTO Appellate Body also found 

that the denial of offsets for nondumped comparisons in original 

antidumping duty investigations using 

transaction-to-transaction (‘‘T–T’’) 

comparisons 7 was inconsistent with 


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8102 Federal Register / Vol. 77, No. 30 / Tuesday, February 14, 2012 / Rules and Regulations 

8US—Zeroing (Japan), WT/DS322/AB/R, para. 

190(b). 

9 Id., para. 190(d). 

10See WT/DSB/M/213 at para. 2 (minutes of U.S. 

statement at May 30, 2006 DSB meeting), WT/DSB/ 

M/226 at para. 34 (minutes of U.S. statement at Feb. 

20, 2007 DSB meeting), WT/DSB/M/251 at para. 9 

(minutes of U.S. statement at June 2, 2008 DSB 

meeting), WT/DSB/M/266 at para. 57 (minutes of 

U.S. statement at March 20, 2009 DSB meeting). 

11See Antidumping Proceedings: Calculation of 

the Weighted-Average Dumping Margin During an 

Antidumping Investigation; Final Modification, 71 

FR 77722 (Dec. 27, 2006) (‘‘Final Modification for 

Investigations’’). 

12See Notice of Determination Under Section 129 

of the Uruguay Round Agreements Act; 

Antidumping Measures Concerning Certain 

Softwood Lumber Products from Canada, 70 FR 22, 

636 (May 2, 2005). 

13The Department recognizes that the Statement 

of Administrative Action (‘‘SAA’’) states that ‘‘the 

preferred methodology in reviews will be to 

compare average to individual export prices’’ 

Articles 2.4 and 2.4.2 of the 

Antidumping Agreement.8 The WTO 

Appellate Body, in US—Zeroing 

(Japan), further found that the denial of 

offsets for non-dumped comparisons in 

antidumping duty new shipper reviews 

was inconsistent with Articles 2.4 and 

9.5 of the Antidumping Agreement.9

Following these adverse findings, the 

United States Trade Representative 

(‘‘USTR’’), informed the WTO Dispute 

Settlement Body (DSB), that the United 

States intended to comply with its WTO 

obligations in these disputes.10 Pursuant 

to section 123(f) of the Uruguay Round 

Agreements Act (‘‘URAA’’), the USTR 

notified the House Ways and Means and 

Senate Finance Committees of the 

adverse findings, and further consulted 

with these committees concerning 

implementation. 

Pursuant to section 123(g)(1) of the 

URAA, on December 28, 2010, the 

Department published a notice in the 

Federal Register proposing to modify its 

methodology for calculating weightedaverage margins of dumping and 

antidumping duty assessment rates to 

provide offsets for non-dumped 

comparisons while using monthly A–A 

comparisons in reviews, in a manner 

that parallels the WTO-consistent 

methodology the Department currently 

applies in original antidumping duty 

investigations. Antidumping 

Proceedings: Calculation of the 

Weighted Average Dumping Margin and 

Assessment Rate in Certain 

Antidumping Duty Proceedings, 75 FR 

81533 (December 28, 2010) (‘‘Proposed 

Modification for Reviews’’). In that 

notice, the Department solicited 

comments on its proposal. On February 

1, 2011, the Department extended the 

period of time for the submission of 

comments. Antidumping Proceedings: 

Calculation of the Weighted Average 

Dumping Margin and Assessment Rate 

in Certain Antidumping Duty 

Proceedings, 76 FR 5518 (Feb. 1, 2011). 

In September, 2011, pursuant to 

section 123(g)(1)(D) of the URAA, the 

USTR submitted a report to the House 

Ways and Means and Senate Finance 

Committees describing the proposed 

modification, the reasons for the 

modification, and a summary of the 

advice USTR had sought and obtained 

from relevant private sector advisory 

committees pursuant to section 

123(g)(1)(B) of the URAA. Also in 

September, 2011, pursuant to section 

123(g)(1)(E) of URAA, the USTR, 

working with the Department of 

Commerce, began consultations with 

both congressional committees 

concerning the proposed contents of the 

final rule and final modification. This 

notice is published pursuant to section 

123(g)(1)(F) of the URAA. 

Final Modification for Calculating the 

Weighted-Average Dumping Margin and 

Assessment Rate in Certain 

Antidumping Duty Proceedings 

After considering all of the comments 

submitted, the Department is adopting 

the proposed changes to its 

methodology for calculating weightedaverage margins of dumping and 

antidumping duty assessment rates to 

provide offsets for non-dumped 

comparisons when using monthly A–A 

comparisons in reviews, in a manner 

that parallels the WTO-consistent 

methodology the Department currently 

applies in original antidumping duty 

investigations. In reviews, except where 

the Department determines that 

application of a different comparison 

method is more appropriate, the 

Department will compare monthly 

weighted-average export prices with 

monthly weighted-average normal 

values, and will grant an offset for all 

such comparisons that show export 

price exceeds normal value in the 

calculation of the weighted-average 

margin of dumping and antidumping 

duty assessment rate. Where the 

weighted-average margin of dumping for 

the exporter is determined to be zero or 

de minimis, no antidumping duties will 

be assessed. 

In adopting this Final Modification for 

Reviews, the Department’s intention is 

to apply a comparison methodology in 

reviews that parallels the WTOconsistent methodology the Department 

currently applies in original 

investigations,11 which will necessarily 

include any exceptional or alternative 

comparison methods that are 

determined appropriate to address casespecific circumstances. Accordingly, 

similar to the conduct of original 

investigations, when conducting 

reviews under the modified 

methodology, the Department will 

determine on a case-by-case basis 

whether it is appropriate to use an 

alternative comparison methodology by 

examining the same criteria that the 

Department examines in original 

investigations pursuant to section 

777A(d)(1)(A) and (B) of the Act. 

The Department has rarely applied 

the transaction-to-transaction method in 

original antidumping duty 

investigations. In the most recent 

original investigation in which the 

Department calculated the weightedaverage margins of dumping using T-T 

comparisons, the Department did not 

grant offsets for non-dumped 

comparisons.12 The WTO Appellate 

Body has found the denial of offsets for 

non-dumped comparisons in original 

investigations using T-T comparisons to 

be inconsistent with the WTO 

obligations of the United States. To the 

extent that any prior original 

antidumping duty investigations using 

T-T comparisons could be construed as 

establishing a practice of the 

Department with respect to the granting 

or denial of offsets for non-dumped 

comparisons when calculating the 

weighted-average margin of dumping, 

the Department hereby withdraws any 

such practice. Specifically, if the 

Department applies the T-T comparison 

methodology in a future antidumping 

duty proceeding, it will do so without 

reference to, or reliance on, any prior 

practice with regard to the issue of 

offsets because any such practice has 

been withdrawn. 

In order to implement the revised 

methodology, it is necessary to modify 

certain provisions of the Department’s 

regulations. In particular, 19 CFR 

351.414(a) and (c) indicate a preference 

for making A-T comparisons in reviews. 

These provisions will be modified to 

permit application of A-A comparisons 

in reviews in a manner that parallels the 

comparison methods used in original 

investigations. In addition, sections 

351.414(d)(3) and (e) of the 

Department’s regulations set forth the 

time periods over which weighted 

averages are calculated. Section 

351.414(d)(3) provides that when 

applying the A-A method, the weighted 

averages will normally be calculated 

over the entire period of investigation or 

review, unless another averaging period 

is deemed appropriate. Section 351.414 

(e) provides that when applying the AT method in a review, the Department 

will calculate weighted-average normal 

values on a monthly basis.13 The 


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(Statement of Administrative Action, p, 843, H. Doc. 

No. 103–316, vol. 1 (1994)); however, in order to 

implement the findings in the WTO dispute 

settlement reports, the Department will restrict the 

use of that preferred methodology to situations in 

which the Department, on the basis of the facts of 

the specific administrative review, determines that 

average-to-transaction comparisons are more 

appropriate than average-to-average comparisons. 

14US—Zeroing (EC), WT/DS294/AB/RW, para. 

469(h)(iv) & (vi), US—Zeroing (Japan), WT/DS322/ 

AB/R, para. 190(f); US—Continued Zeroing (EC), 

WT/DS350/R, para. 8.1(f), WT/DS350/AB/R, para. 

395 (f). 

15See section 752(c)(1) of the Act. 

16See e.g., Certain Circular Welded Carbon Steel 

Pipes and Tubes From India, Thailand, and Turkey; 

Final Results of Expedited Five-Year (‘‘Sunset’’) 

Reviews of Antidumping Duty Orders, 76 FR 66893 

(Oct. 28, 2011), and accompanying Issues and 

Decision Memorandum, at Cmt. 1. 

Department currently relies on monthly 

weighted-average normal values when 

calculating dumping margins in 

reviews, and departing from monthly 

averaging is not necessary to comply 

with the WTO findings. Accordingly, 

the Department is modifying section 

351.414(d)(3) to permit weighted 

averages normally to be calculated on a 

monthly basis in reviews, regardless of 

the comparison method used. 

Conforming changes to section 

351.414(e) will ensure sections 

351.414(d)(3) and (e) do not contain 

redundant language. The language for 

the modified provisions is set forth at 

the end of this notice. 

With respect to the findings of 

inconsistency in certain of the 

Department’s sunset reviews,14 the 

Department notes that the underlying 

issue is the methodology for calculating 

weighted-average dumping margins in 

original investigations and reviews, 

which is addressed by the modifications 

the Department has made with respect 

to investigations and is making herein 

with respect to reviews. When making 

a sunset determination, the statute 

requires administrative review margins 

to be ‘‘considered’’ but does not require 

that the Department rely on such 

margins exclusively or in a particular 

manner in making its determination 

whether dumping will continue or recur 

if the antidumping order were to be 

revoked.15 Notwithstanding the 

Department’s prior practice of relying 

on margins determined in the original 

investigation and subsequent reviews 

when determining whether dumping is 

likely to continue in the absence of an 

antidumping order,16 the Department 

will modify its practice in five-year 

sunset reviews, such that it will not rely 

on weighted-average dumping margins 

that were calculated using the 

methodology determined by the 

Appellate Body to be WTO-inconsistent 

in US—Zeroing (EC), US—Zeroing 

(Japan), and US—Continued Zeroing 

(EC). However, only in the most 

extraordinary circumstances will the 

Department rely on margins other than 

those calculated and published in prior 

determinations, pursuant to 19 CFR 

351.218(e)(2). 

The Department does not anticipate 

that it will need to recalculate the 

dumping margins in the vast majority of 

future sunset determinations to avoid 

WTO inconsistency, apart from the 

‘‘most extraordinary circumstances’’ 

provided for in its regulations. Instead, 

the Department will limit its reliance to 

margins determined or applied during 

the five-year sunset period that were not 

determined in a manner found to be 

WTO-inconsistent in these disputes. 

Future dumping margins in reviews will 

be determined in accordance with this 

Final Modification for Reviews. The 

Department may also rely on past 

dumping margins that were not affected 

by the WTO-inconsistent methodology, 

such as dumping margins recalculated 

pursuant to Section 129 proceedings, 

dumping margins determined based on 

the use of adverse facts available, and 

dumping margins where no offsets were 

denied because all comparison results 

were positive. If the dumping margins 

determined in a manner not found to be 

WTO-inconsistent in these disputes 

indicate that dumping continued with 

the discipline of the order in place, 

those dumping margins alone can form 

the basis for a determination that 

dumping will continue or recur if the 

order were to be revoked. Additionally, 

if dumping margins decline over the 

five-year sunset period, or if there are no 

dumping margins during the five-year 

sunset period, decreased volumes may 

provide another basis to determine that 

dumping is likely to continue or recur 

if the discipline of the order is removed. 

Assessment Rates 

Pursuant to section 751(a)(2)(A) of the 

Act, and 19 CFR 351.212(b), the 

Department will determine, and U.S. 

Customs and Border Protection (CBP) 

will assess, antidumping duties on all 

appropriate entries. When an 

administrative review is conducted, and 

where the weighted-average margin of 

dumping for the exporter or producer is 

determined to be greater than de 

minimis, the Department will calculate 

an importer-specific ad valorem 

assessment rate for each importer of 

subject merchandise covered by the 

review. 19 CFR 351.212(b)(1). Importerspecific assessment rates will be 

calculated in the same manner as the 

exporter’s dumping margin, on the basis 

of average-to-average comparisons using 

only the transactions associated with 

that importer with offsets being 

provided for non-dumped comparisons. 

Where the weighted-average margin of 

dumping for the exporter or producer is 

determined to be zero or de minimis, no 

assessment rates will be calculated and 

the Department will instruct CBP to 

liquidate all imports from the exporter 

or producer without regard to 

antidumping duties. 

Analysis of Comments Received 

Numerous comments and rebuttal 

comments were submitted in response 

to the Proposed Modification for 

Reviews. The Department has carefully 

considered each of the comments 

submitted. It has grouped and 

summarized the comments according to 

common themes and has responded 

accordingly. 

Average-to-Average Comparison 

Methodology in Reviews 

Several commentators argue that the 

proposal to move to an A-A comparison 

methodology in reviews is 

unnecessarily complex. These 

commentators suggest that compliance 

can be achieved by simply eliminating 

the use of zeroing in the A-T 

comparison methodology. They note 

that this would only require the 

elimination of one line of programming. 

One commentator is concerned that 

the Department has not adequately 

explained why it is necessary to alter its 

current dumping calculation 

methodology in reviews from an A-T 

methodology to one using monthly 

weighted averages in both markets. 

Some request that the Department 

clarify whether it will grant offsets for 

negative dumping margins only against 

positive dumping margins found in the 

same month or apply negative dumping 

margins to offset positive dumping 

margins across the entire period of 

review (POR). Some argue that only a 

complete POR-wide offset will be 

consistent with the Department’s 

current offset methodology applied in 

original antidumping duty 

investigations and with WTO 

obligations. 

Many are not in favor of relying on 

the A-A comparison methodology as the 

preferred method for reviews because of 

its potential to mask dumping. Some 

commentators argue that using the A-A 

methodology in reviews would not be in 

compliance with the statute and the 

SAA, and thus would not withstand 

judicial scrutiny. Eliminating entryspecific antidumping duty assessments 

would violate sections 751(a)(2)(A) and 

(C) of the Act, which require the 

Department to make entry-specific 

assessments. The preference for a 


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17See e.g.,Timken Co. v. United States, 354 F.3d 

1334, 1341–42 (Fed. Cir. 2004), cert den’d 543 U.S. 

976 (Nov. 1, 2004); Corus Staal BV v. DOC, 395 F.3d 

1343, 1347 (Fed. Cir. 2005), cert. denied, 126 S.Ct. 

1023 (Jan. 9, 2006). 

18Statement of Administrative Action, at p. 843, 

H. Doc. No. 103–316, vol. 1 (1994) (‘‘The Agreement 

reflects the express intent of the negotiators that the 

preference for the use of an average-to-average or 

transaction-to-transaction comparison be limited to 

the ‘‘investigation phase’’ of an antidumping 

proceeding. Therefore, as permitted by Artcle 2.4.2, 

the preferred methodology in reviews will be to 

compare average to individual export prices.’’) 

transaction-specific approach is 

confirmed by the SAA, and is supported 

by the statutory language, which 

indicates the Department will determine 

normal value and export price for ‘‘each 

entry.’’ 

A few argue that nothing in the statute 

provides discretion for the Department 

to use either A-A or T-T in reviews, and 

that the statutory construction would 

make no sense if Congress intended for 

any of the three methods to be used in 

both investigations and reviews. 

Congress envisioned and required the 

Department to determine an individual 

margin of dumping for each U.S. entry, 

and nowhere indicated that margins 

should be calculated for averaging 

groups. 

Several commentators note that 

nothing in the WTO Appellate Body 

(AB) rulings or the WTO Antidumping 

Agreement requires the Department to 

adopt an A-A approach in reviews. They 

argue that the Department should not 

confine itself to a single ‘‘one size-fits 

all’’ approach, but instead, leave open 

the option of selecting the comparison 

method (A-A, T-T, or A-T) on a casespecific basis to capture the maximum 

amount of dumping. Some 

commentators argue that given that the 

preferred method as cited in the SAA is 

A-T, the Department should keep this 

option open. Some commentators also 

argue that the T-T method would be a 

good option in many instances, 

asserting that advancements in 

computer technology have eliminated 

much of the administrative burden 

associated with the use of the T-T 

method. 

Department Position: As previously 

indicated, the Department is adopting a 

methodology that parallels the WTOconsistent methodology it adopted 

earlier in connection with original 

antidumping duty investigations. The 

Department disagrees that adopting a 

methodology with which it is already 

familiar and experienced in 

administering is an unnecessarily 

complex approach. In addition, while 

the Department has previously adopted 

an interpretation of section 771(35) of 

the Act such that non-dumped A-A 

comparison results offset the aggregate 

amount of dumping in the numerator of 

the weighted-average dumping margin, 

the Department has not adopted such an 

interpretation for the results of A-T 

comparisons. The Department finds that 

this approach preserves the A-T 

comparison methodology as a distinct 

comparison method that is an 

alternative to the A-A comparison 

method. 

Previous to this modification, the 

Department has generally used A-T 

comparisons in reviews, with monthly 

average normal values as required by 

section 777A(d)(2) of the Act. The 

Department did not find that it was 

necessary to depart from the use of 

monthly average normal values to adopt 

the A-A comparison method in reviews. 

To facilitate contemporaneous 

comparisons, the Department will 

utilize monthly average export prices in 

making A-A comparisons in reviews. 

The monthly averages will be compared 

to monthly average normal values and 

the results will be aggregated with 

offsets being provided for non-dumped 

comparisons. Those offsets will be 

provided regardless of the month, 

model, level of trade, etc. for the other 

comparison(s) found to have been 

dumped. 

With respect to the potential for 

masked dumping as a reason not to 

prefer the use of A-A comparisons in 

reviews, the Department does not agree 

that the potential for masked dumping 

means that A-A comparisons are 

unsuitable as the default basis for 

determining the weighted-average 

dumping margins and antidumping 

duty assessment rates in reviews. 

Similar to the conduct of original 

investigations, when conducting 

reviews under the modified 

methodology, the Department will 

determine, on a case-by-case basis, 

whether it is appropriate to use an 

alternative comparison methodology by 

examining the same criteria the 

Department examines in original 

investigations pursuant to sections 

777A(d)(1)(A) and (B) of the Act. 

With respect to the question of 

consistency with existing U.S. law, the 

Department does not interpret the Act to 

prohibit A-A comparisons from being 

utilized as a basis to determine 

weighted-average dumping margins and 

assessment rates in reviews. Nor does 

any provision of the Act articulate a 

mandate to use A-T comparisons in 

reviews. Section 777A(d)(2) simply 

directs how A-T comparisons should be 

made when such comparisons are used. 

This provision differs markedly from 

section 777A(d)(1), which specifically 

provides criteria for selecting a 

comparison methodology in original 

antidumping duty investigations. The 

Department interprets this statutory 

structure as mandating certain criteria 

for selecting a comparison methodology 

in original antidumping duty 

investigations, but leaving the 

Department considerable discretion in 

selecting an appropriate comparison 

methodology in reviews. It is, therefore, 

within the Department’s discretion to 

establish criteria for the selection of an 

appropriate comparison methodology in 

reviews, including criteria that differ 

from, or are similar to, the criteria 

mandated for use in original 

antidumping duty investigations. 

The Department disagrees with 

comments suggesting that sections 

751(a)(2)(A) and (C) of the Act preclude 

the use of A-A comparisons in reviews. 

Section 777A(d) of the Act provides for 

three distinct comparison 

methodologies by which dumping 

margins may be determined. Section 

751(a)(2), in contrast, does not make 

reference to any specific comparison 

methodology to be used in reviews. 

Accordingly, the Department considers 

that any of the three comparison 

methodologies satisfies the 

requirements of section 751(a)(2). 

Moreover, section 751(a)(2) does not 

make reference to either the weightedaverage dumping margin or the 

importer-specific antidumping duty 

assessment rate that is the specific 

subject of this modification. These 

particular results of reviews are not 

specifically mandated by section 

751(a)(2), but are instead features of the 

Department’s long-standing practice in 

reviews. Both the weighted-average 

dumping margin and the importerspecific antidumping duty assessment 

rate are the product of aggregating 

comparison results obtained using one 

of the three comparison methodologies. 

While calculation of these rates depends 

on transaction-specific data, and these 

rates are applied to entries at the time 

of entry or upon liquidation, they do not 

involve entry-by-entry determinations of 

dumping or antidumping duty 

assessment. The courts have affirmed 

these features of the Department’s 

practice, confirming that section 

751(a)(2) does not mandate an entry-byentry determination of dumping and 

antidumping duties.17

With respect to the language of the 

SAA 18, this language does not clarify 

the meaning of any statutory provision 

to the effect that A-T comparisons are 

mandatory or that A-A comparisons are 

prohibited in reviews. Instead, the SAA 

makes the point that, in contrast to the 

situation with regard to original 

antidumping duty investigations, a 


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19See Final Modification for Investigations, 71 FR 

77722 (Dec. 27, 2006). 

20Timken Company Ltd. v. United States, 354 

F.3d 1334, 1342 (Fed. Cir. 2004) (‘‘ * * * while the 

statutory definitions do not unambiguously 

preclude the existence of negative dumping 

margins, they do at a minimum allow for 

Commerce’s constructions. Basically, one number 

‘exceeds’ another if it is ‘greater than’ the other, 

meaning it falls to the right of it on the number 

line.’’); see also Corus Staal BV v. Dept. of 

Commerce, 395 F.3d 1343, 1347 (Fed. Cir. 2005). 

preference for A-T comparisons is not 

inconsistent with Article 2.4.2 of the AD 

Agreement. Whereas it has been the 

Department’s long-standing practice to 

prefer A-T comparisons in reviews, this 

practice has not been codified in the 

statute and it remains within the 

Department’s discretion to alter this 

practice upon providing a reasoned 

explanation. The Department finds 

adopting a methodology that parallels 

the WTO-consistent methodology it 

adopted earlier in original investigations 

using A-A comparisons will facilitate 

the administration of a change to 

comply with WTO dispute settlement 

findings on zeroing. 

Continued Effectiveness of the 

Antidumping Remedy 

Several commentators argue that 

allowing offsets for non-dumped 

comparisons will reduce the 

effectiveness of U.S. trade laws because 

it would reduce or eliminate the amount 

of dumping that would otherwise be 

fully captured in the absence of any 

offsets. In so doing, the proposal would 

go against the current law’s mandate 

that 100 percent of the dumping be fully 

captured. To illustrate this point, some 

draw on the ‘‘speeding ticket’’ analogy, 

whereby a driver caught exceeding the 

speed limit could nevertheless avoid the 

fine by submitting evidence that he or 

she drove below the speed limit on 

another occasion. One commentator 

noted that the EU and Japan have 

acknowledged that dumping can be 

masked completely through the 

provision of offsets by asserting that 

dumping would not exist but for the 

denial of offsets. These commentators 

also argue that, if the Department 

decides to provide offsets, it should 

allow itself the greatest flexibility to 

account for the maximum amount of 

dumping. 

Several commentators suggest that the 

Department should consider all three 

possible comparison methodologies 

when conducting reviews, and select 

whichever method captures the 

maximum amount of dumping. Some 

argue that the T–T method would 

capture the greatest amount of dumping, 

and that recent technology permits 

greater use of this comparison 

methodology. Several further suggest 

that the Department should indicate a 

willingness to use averaging for 

whichever time period captures the 

most dumping (e.g., daily, weekly, 

monthly, or period-wide). One 

commentator notes that because many 

agricultural products are perishable, and 

domestic producers can be harmed via 

short-term (i.e., daily or weekly) price 

suppression, maximum flexibility 

should be maintained. 

Some commentators suggest that, in 

addition to maintaining flexibility in 

comparison methodologies, the 

Department should also implement 

additional changes unrelated to the 

revised comparison methodology on 

zeroing, to antidumping policies and 

practices that preserve the full 

effectiveness of the antidumping laws. 

One commentator suggests the 

Department should give renewed focus 

to the use of provisions addressing 

fictitious markets and sales that are 

outside the ordinary course of trade, 

should consider shortening the range of 

months from which the 

contemporaneous month may be 

selected, and should revise its model 

match criteria. These commentators 

argue that despite their suggested 

alternatives, there is no way to come 

into compliance with the WTO findings 

without seriously compromising the 

effectiveness of the trade remedy laws. 

One commentator argues that while it 

may be appropriate to invoke section 

123(g) of the URAA for purposes of 

modifying the Department’s regulations, 

the use of zeroing can be abandoned 

without the Department invoking its 

authority under section 123 because the 

Department can choose not to apply the 

zeroing method on a case-by-case basis. 

This party argues that Congress has 

purposefully imposed section 123 

procedures only on amendments or 

modifications of regulations and written 

policy guidance. Because application of 

the zeroing method is not pursuant to 

written policy guidance, U.S. 

obligations with respect to adopted 

WTO reports, and changes pursuant 

thereto, have no bearing on domestic 

procedures. Because section 123 

imposes certain procedural obligations 

that are not required in order for the 

Department to abandon zeroing, this 

party urges the Department to clarify 

that any changes undertaken are made 

pursuant to the agency’s general legal 

authority to administer the antidumping 

laws, and that the Department did not 

rely upon or invoke the procedures 

called for under section 123. 

Department Position: The Department 

has carefully considered all of the 

comments provided in this section 123 

proceeding, particularly those 

comments addressing the need to 

maintain the effectiveness of the 

antidumping remedy, and has 

determined to adopt this Final 

Modification for Reviews. The 

Department is not taking this step 

lightly, and it stands to reason that the 

adoption of this Final Modification for 

Reviews will have some impact on the 

weighted-average dumping margins 

determined in reviews. Nevertheless, 

the Department, after fully considering 

the issue, and consulting with USTR 

and the relevant congressional 

committees, has determined to adopt 

this Final Modification for Reviews in 

order to address the findings of several 

WTO dispute settlement reports and to 

bring its practice into conformity with 

the WTO obligations of the United 

States as determined in those reports. 

The Department considers, moreover, 

that it has adopted a reasoned and 

balanced approach to implementation 

that is consistent with existing U.S. law 

and administrable by the agency. 

With respect to the Final Modification 

for Reviews being a reasoned and 

balanced approach, the Department is 

adopting a methodology that parallels 

the WTO-consistent methodology the 

Department previously adopted in 

response to WTO dispute settlement 

reports relating to investigations. This 

new methodology for reviews will be 

the default methodology in all reviews 

for which this Final Modification for 

Reviews is effective; however, the 

Department does retain the discretion, 

on a case-by-case basis, to apply an 

alternative methodology, when 

appropriate. The Department retained 

similar discretion in investigations and 

has only needed to exercise it in a 

limited number of investigations since 

the adoption of the Final Modification 

for Investigations.19

With respect to this Final 

Modification for Reviews being 

consistent with existing U.S. law, the 

courts have held, in more than thirty 

cases, that while zeroing is a reasonable 

interpretation of the statute, it is a 

reasonable interpretation of an 

ambiguous provision of the statute. The 

ambiguity recognized by the Court of 

Appeals for the Federal Circuit means 

that it is within the Department’s 

discretion to alter or abandon its zeroing 

methodology upon providing a reasoned 

explanation.20 The Department is 

hereby altering that methodology, by 

adopting an A–A comparison 

methodology in reviews that parallels 

the WTO-consistent methodology 

adopted in investigations, and providing 

offsets when it aggregates the results of 


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those comparisons. Consistent with this 

interpretation of the statute and 

application of this methodology, the 

Department disagrees with those 

comments that suggest it is not 

capturing 100 percent of the dumping. 

The Department will capture 100 

percent of the dumping that is 

determined to exist pursuant to this 

methodology. Moreover, alternative 

methodologies will remain available 

when determined to be appropriate on 

a case-by-case basis. 

With respect to this Final 

Modification for Reviews being 

administrable by the Department, as 

previously indicated, the Department is 

adopting a methodology that parallels 

the WTO-consistent methodology it 

adopted earlier in original antidumping 

duty investigations using A–A 

comparisons. In so doing, the 

Department has adopted a methodology 

with which it is already familiar and 

experienced in administering. This will 

facilitate the administration of a change 

impacting the 188 reviews the 

Department conducts in an average year. 

The Department is not adopting the 

comments suggesting that it calculate 

dumping margins on the basis of A–A, 

T–T, and A–T comparison 

methodologies, and rely on the 

methodology providing the highest 

weighted-average margin of dumping. 

Such a proposal would entail 

substantial additional work in every 

case which is not administratively 

feasible given the statutory time 

constraints present in every proceeding 

and the Department’s limited resources. 

Moreover, while such alternative 

methodologies remain available to the 

Department on a case-by-case basis, the 

Department expects to use the A–A 

comparison methodology, with offsets, 

in most reviews. 

With regard to comments suggesting 

that the Department alter other aspects 

of its methodology having nothing to do 

with the issue of zeroing, the 

Department notes that the purpose of 

this proposal is to bring the United 

States into conformity with its WTO 

obligations as articulated in the dispute 

settlement reports cited above. These 

suggestions are beyond the scope of this 

section 123 proceeding. When these 

issues arise in a particular review, 

parties are free to suggest that the 

Department reconsider them in the 

context of that particular proceeding, as 

appropriate. 

With regard to comments suggesting 

that the Department need not utilize a 

section 123 proceeding in order to adopt 

changes to its methodologies to address 

the findings in the above-cited WTO 

dispute settlement reports, these 

comments are inapposite. As is clear 

from the on-going proceeding in which 

the comments were submitted, the 

Department has determined to utilize 

the procedures of section 123 to adopt 

these changes. Whether the Department 

could have made these changes outside 

of section 123 is irrelevant. The 

Department has determined that, in this 

case, it was appropriate to undertake a 

section 123 proceeding, with all of its 

attendant comment and consultation 

processes, in order to complete the 

adoption of these significant changes in 

its practice. 

Explicit Total Prohibition of Zeroing 

A number of commentators argue that 

the Department should state explicitly 

that it will grant offsets when the export 

price exceeds the normal value, and 

specifically eliminate the zeroing 

methodology. Some of these 

commentators suggest that the 

Department should clearly state that it 

will grant offsets equal to the full 

difference between normal value and 

export price when calculating dumping 

margins using the A–A comparison 

methodology in reviews. These 

commentators note that the proposed 

regulations do not explicitly state that 

the Department will provide offsets 

when calculating the dumping margin. 

Some commentators suggest that the 

Department include explicit text in the 

Final Modification for Reviews, the 

regulations, or both, that unequivocally 

eliminates zeroing regardless of the 

comparison methodology employed, 

and regardless of any case-specific 

circumstances. Some assert that any 

elimination of a subset of comparisons 

(i.e., denial of offsets) is a violation of 

the United States’ WTO obligations. In 

their view, an explicit prohibition of 

zeroing in all instances is necessary to 

ensure full compliance with WTO 

rulings and encourage other countries to 

comply with their commitments. 

Department Position: With this Final 

Modification for Reviews, the 

Department is taking all steps necessary 

to address the findings of the WTO 

dispute settlement reports at issue and 

to come into compliance with its WTO 

obligations. As a result of this 

modification, the new, normal 

comparison methodology to be used in 

reviews will be the A–A comparison 

methodology (on a monthly basis) and 

offsets will be provided when the 

results of those comparisons are 

aggregated for purposes of determining 

the weighted-average dumping margin. 

This new methodology will parallel the 

WTO-consistent methodology the 

Department currently uses in original 

investigations. 

It is not necessary, appropriate or 

desirable for the Department, in this 

Final Modification for Reviews, to go 

beyond the findings made in the WTO 

dispute settlement reports at issue by 

adopting a total prohibition of zeroing 

regardless of comparison method or 

case-specific circumstance. The dispute 

settlement reports at issue address only 

certain types of comparisons in 

particular circumstances, such that a 

total prohibition of zeroing is not 

necessary to come into compliance. 

With respect to the findings regarding 

the calculation of weighted-average 

dumping margins and antidumping 

duty assessment rates in reviews, the 

Final Modification for Reviews achieves 

compliance with the dispute settlement 

findings in that it adopts a methodology 

for these reviews that parallels the 

WTO-consistent methodology that is 

currently being applied in original 

investigations. The methodologies and 

interpretations set forth and adopted in 

the Final Modification for Reviews fully 

address the findings of WTO 

inconsistency. 

Clarification on the Application of an 

Alternative Comparison Methodology 

Several parties request clarification as 

to which circumstances would trigger 

the use of an alternative comparison 

methodology, and whether zeroing 

would be used in the alternative 

calculation methodology. These 

commentators also encourage the 

Department to narrowly tailor the 

circumstances under which an 

alternative comparison methodology is 

used. One commentator notes its 

concern that the reference to an 

alternative methodology in the Proposed 

Modification for Reviews is ambiguous, 

and will lead to parties manipulating 

the system for a certain preferred 

comparison methodology. 

Some commentators remind the 

Department that if it is considering the 

use of the targeted dumping 

methodology as an alternative 

methodology, this methodology is to be 

employed as an exception, in very 

limited circumstances. One 

commentator suggests the Department 

should develop an overall final rule 

with regard to targeted dumping that is 

explicitly consistent with Article 2.4.2 

of the Antidumping Agreement. 

Some commentators state that the 

targeted dumping methodology was not 

intended to apply to reviews, and 

request that the Department explicitly 

state that it will not employ targeted 

dumping in this context. 

Department Position: In its Final 

Modification for Reviews, the 

Department provides additional 


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21Proposed Modification for Reviews, 75 FR at 

81534. 

clarification of the circumstances that 

could trigger the use of an alternative 

comparison methodology. The Proposed 

Modification for Reviews indicated that 

the Department would use monthly A– 

A comparisons, except where it 

determines that application of an 

alternative comparison method is more 

appropriate. The Department also 

indicated its intent to apply the 

methodology in a manner that parallels 

the WTO-consistent methodology the 

Department currently applies in 

investigations.21

In this Final Modification for Reviews, 

the Department clarifies that because 

the methodology being applied will 

parallel the WTO-consistent 

methodology that the Department 

currently applies in original 

investigations, it will necessarily 

include any exceptional or alternative 

comparison methods determined 

appropriate to address case-specific 

circumstances. The Department’s 

regulations specifically describe three 

types of comparison methodologies that 

might be used to determine margins of 

dumping and antidumping duty 

assessment rates. Although the Final 

Modification for Reviews adopts the A– 

A method as the default method in 

reviews, the Department may determine 

to use any of the alternative comparison 

methodologies when deemed 

appropriate in a particular case. 

The Department determines that it 

would be inappropriate to further 

speculate as to either the case-specific 

circumstances that would warrant the 

use of an alternative methodology in 

future reviews, or what type of 

alternative methodology might be 

employed. These determinations would 

be highly dependent on the facts of the 

individual proceeding. However, as is 

the case with all administrative 

proceedings, interested parties will have 

the opportunity to comment on whether 

an alternative comparison method is 

warranted during the normal course of 

the review. 

Assessment Rate Calculations 

Some commentators request 

clarification as to how the Department 

intends to calculate antidumping duty 

assessment rates. A few request that the 

Department specifically clarify that it 

will continue to calculate importerspecific antidumping duty assessment 

rates. Some commentators argue the 

Proposed Modification for Reviews 

raises the possibility that antidumping 

duty assessment rates could be 

impacted by the level of dumping on 

other importers’ entries, which 

contravenes the current statutory and 

regulatory requirements that the 

Department determine the level of 

dumping required for each entry during 

the review period and that it determine 

the assessment rate on an importerspecific basis. Some commentators 

suggest that the Department state that it 

will calculate antidumping duty 

assessment rates for individual 

importers without the zeroing method. 

A few commentators suggest that 

before issuing a final section 123 

determination, the Department should 

consider issuing a separate notice 

identifying any proposed changes in its 

calculation of importer-specific 

assessment rates necessitated by the 

proposed change in the Department’s 

methodology to permit additional 

public comments. It is further suggested 

that the Department release for public 

comment the standard calculation 

program that it intends to use in 

reviews. 

Department position: For purposes of 

this Final Modification for Reviews, the 

Department is providing additional 

explanation about the antidumping duty 

assessment methodology being adopted. 

The Department has determined that a 

further or separate comment period is 

not justified. The calculation program 

language, including any antidumping 

duty assessment determinations, 

particular to any specific review, will be 

available to parties through the 

Department’s usual disclosure process 

and parties are free to comment on it 

during the course of the individual 

review. 

With respect to the issue of 

assessment rates, when a review is 

conducted applying the A–A 

comparison methodology, and the 

weighted-average margin of dumping for 

the exporter or producer is determined 

to be zero or de minimis, no assessment 

rates will be calculated and the 

Department will instruct CBP to 

liquidate all imports from the exporter 

or producer without regard to 

antidumping duties, regardless of 

importer. 

When the weighted-average margin of 

dumping for the exporter or producer is 

determined to be greater than de 

minimis, based on the A–A comparison 

methodology, the Department will 

perform an additional calculation to 

determine the assessment rate for each 

individual importer that purchases from 

the exporter or producer in question. 

This additional calculation will 

effectively repeat the first calculation 

performed at the exporter or producer 

level; however, in this case, the export 

transactions involved in the calculation 

will be limited to those involving 

merchandise imported by the individual 

importer. The monthly, weightedaverage export prices of those 

transactions will be compared to 

monthly normal values, and the results 

will be aggregated with offsets being 

provided for non-dumped comparisons. 

Those offsets will be provided on an 

importer-specific basis in the 

aggregation, regardless of the month, 

model, level of trade, etc. for the other 

comparison(s) found to have been 

dumped. 

Comments on the Proposed Regulations 

Several commentators note that the 

proposed rule at § 351.414(c)(1) does not 

provide sufficient clarification of what 

constitutes ‘‘a particular case.’’ The 

commentators argue that without further 

clarification of the term, the 

investigating authority would have 

excessive discretion in interpreting and 

implementing the regulation. Therefore, 

the commentators request the 

Department to specify, in the final 

regulations, the exceptional 

circumstances that would allow the use 

of an alternative comparison 

methodology. These commentators 

suggest that the language of 

§ 351.414(c)(1) regarding choice of 

method should be clarified to indicate 

when and how the Secretary might 

choose an alternative comparison 

methodology by making clear the 

circumstances in which it may find it 

‘‘more appropriate’’ to deviate from its 

proposed methodology and use a 

‘‘different comparison method’’ to 

calculate dumping margins and 

antidumping duty assessment rates in a 

review. One commentator goes further 

and suggests that the Department 

specify not only the specific 

circumstances that make it appropriate 

to deviate from the preferred 

methodology, but also which alternative 

comparison methodology would be used 

in particular circumstances. 

Several commentators note that the 

proposed rules do not specify that 

zeroing will not be used. Therefore, 

these commentators request that the 

final rule specifically include a 

provision for granting offsets for nondumped sales in all comparison 

methodologies. One commentator 

suggests clarification of the language of 

§ 351.414(d)(3), with respect to the 

comparison of weighted-average 

monthly export price or constructed 

export price to the weighted-average 

normal value for the contemporaneous 

month. Specifically, the commentator 

suggests that it be made clear that while 

aggregating the comparisons of different 

months covered in a review, the 


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22See Antidumping Duties Countervailing Duties, 

62 FR 27296, 27374 (May 19, 1997) (Preamble, 

Final Rule). 

Secretary will provide offsets for those 

comparisons which result in negative 

dumping margins. 

Department Position: The Department 

disagrees that additional clarification of 

the regulations is necessary or 

appropriate. The revised regulations 

describe three types of comparison 

methodologies that might be used to 

determine margins of dumping and 

antidumping duty assessment rates. The 

overarching purpose of 19 CFR 351.414 

is to implement section 777A(d) of the 

Act and to set forth the three statutory 

methodologies for establishing and 

measuring dumping margins.22 Section 

351.414(c), as revised by this Final Rule 

and Final Modification for Reviews, sets 

forth the default comparison 

methodology to be used in different 

contexts, and § 351.414(d) describes 

generally how the A–A method will be 

applied. The revised regulation makes 

clear that the A–A comparison 

methodology will be the default 

methodology in all reviews for which 

the Final Rule and Final Modification 

for Reviews applies. The Department 

has also explained that because the 

methodology being adopted will parallel 

the WTO-consistent methodology the 

Department currently applies in original 

investigations, it will necessarily 

include any exceptional or alternative 

comparison methodologies determined 

appropriate to address case-specific 

circumstances. The Final Rule allows 

sufficient flexibility for the Department 

to apply alternative comparison 

methodologies when necessary. 

The Department has always retained 

discretion under its regulations to apply 

any of the three comparison 

methodologies in any context, and has 

exercised this discretion only in a 

limited number of circumstances. It 

would be inappropriate to further 

speculate as to which case-specific 

circumstances might warrant the use of 

an alternative comparison methodology 

in future reviews as this determination 

would be highly dependent on the facts 

of the individual proceeding. Because 

any description of such circumstances 

would be speculative, at best, the 

revised regulations do not specify the 

exceptional circumstances that might 

trigger the use of an alternative 

comparison methodology. Such 

questions are best addressed in the 

context of individual proceedings. As is 

the case with all proceedings, interested 

parties would have the opportunity to 

comment on whether an alternative 

comparison methodology is warranted 

during the normal course of the 

proceeding. 

The Department further disagrees that 

the revised regulations must specifically 

indicate that offsets will be provided. 

The purpose of the regulation is to 

describe in general terms the 

comparison methodologies available, 

and the default methodology to be 

employed in different contexts. Greater 

specificity as to when offsets will be 

provided under each comparison 

methodology is beyond the intended 

purpose of the regulation, and is 

unnecessary for purposes of adopting a 

methodology that is WTO-consistent. 

The Department has already made clear 

that its revised methodology for reviews 

will parallel the WTO-consistent 

methodology the Department currently 

applies in original investigations, and 

that offsets will be provided when using 

this methodology. The Department has 

been granting offsets in original 

investigations since 2007 without 

specific regulatory language directing it 

to do so. The Department has further 

explained, above, how assessment rates 

will be determined for individual 

importers. The revised regulations 

coupled with the descriptions contained 

in this Final Modification for Reviews 

and the Department’s responses to 

comments are sufficient. The 

Department does not consider that the 

revised regulations require further 

elaboration. Furthermore, as more fully 

explained in the Explicit Total 

Prohibition of Zeroing section of this 

notice, above, the Department disagrees 

that it is either necessary or appropriate 

to adopt a total prohibition—either 

explicit or implicit—of zeroing, 

regardless of the comparison 

methodology or case-specific 

circumstance. The methodologies and 

preferences set forth in this Final 

Modification for Reviews and the 

revised regulations, fully address the 

findings of WTO inconsistency. 

Sunset Determinations 

Many commentators welcome the 

United States’ recognition that it should 

not rely on dumping margins based on 

the zeroing methodology when 

conducting sunset reviews. These 

commentators agree that international 

obligations prohibit the use of dumping 

margins calculated with zeroing for 

purposes of sunset determinations. One 

commentator argues that the Supreme 

Court’s decision in Murray v. Charming 

Betsy, 6 U.S. (2 Cranch.) 64, 118 (1804) 

(Charming Betsy), compels the 

Department to terminate its use of 

zeroing in sunset reviews immediately 

in order to avoid violating the United 

States’ international obligations. See 

Fed.-Mogul Corp. v. United States, 63 

F.3d 1572, 1581 (Fed. Cir. 1995) (citing 

Charming Betsy, 6 U.S. (2 Cranch.) at 

118). Several commentators argue that 

failure to recalculate dumping margins 

would result in costly and unnecessary 

litigation in light of the ruling in US— 

Zeroing (Japan), in which the Appellate 

Body found that reliance on dumping 

margins based on the zeroing 

methodology in sunset reviews is 

inconsistent with U.S. WTO obligations. 

Some commentators argue that the 

Proposed Modification for Reviews does 

not sufficiently account for the many 

sunset reviews currently pending where 

past dumping margins were based on 

zeroing. Many suggest that the 

Department should recalculate all 

dumping margins relied upon in sunset 

reviews using the new WTO-consistent 

methodology. These commentators 

point out that dumping margin 

calculations and, hence, zeroing are 

relevant to determining both whether 

revocation of an order would be likely 

to lead to a continuation or recurrence 

of dumping and the magnitude of the 

dumping margin likely to prevail if the 

antidumping order were revoked. 

Another commentator goes on to 

observe that the Department must 

evaluate the change in dumping margins 

over time to ascertain changes in the 

exporters’ pricing behavior as part of its 

sunset determinations. To conduct a 

trends analysis of this sort, it is 

necessary that the dumping margins be 

calculated in a consistent manner over 

time, which can only be done by 

eliminating the zeroing methodology 

from all calculations. 

Certain commentators argue that the 

Department correctly recognized in the 

Proposed Modification for Reviews that 

it is not precluded from recalculating 

dumping margins from prior 

proceedings to eliminate zeroing for 

sunset reviews. One commentator 

points out that sections 752(c)(1) & (3) 

of the Act direct the Department to 

consider the prior rates it has 

calculated, not simply to adopt them 

wholesale, and that the Department may 

consider such other price, cost, market, 

or economic factors it deems relevant 

(See § 752(c)(2) of the Act). Another 

commentator argues that, regardless of 

whether certain dumping margins form 

the basis for the sunset determination, 

the statute (section 751(c) of the Act) 

requires the Department to consider all 

dumping margins determined during 

the five-year period, and therefore, 

recalculation cannot be avoided. A few 

other commentators request that the 

Department add clarifying language to 

19 CFR 351.414 to clearly state that it 

will not rely on dumping margins that 


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Federal Register / Vol. 77, No. 30 / Tuesday, February 14, 2012 / Rules and Regulations 8109 

23 See Certain Circular Welded Carbon Steel 

Pipes and Tubes From India, Thailand, and Turkey; 

Final Results of Expedited Five-Year (‘‘Sunset’’) 

Reviews of Antidumping Duty Orders, 76 FR 66893 

(Oct. 28, 2011), and accompanying Issues and 

Decision Memorandum, at Cmt. 1; see also 

Statement of Administrative Action, at 889 and 890, 

H. Doc. No. 103–316, vol. 1 (1994); the House 

Report, H. Rep. No. 103–826, pt. 1, at 63–64 (1994). 

contain zeroing in future sunset 

reviews, that it will recalculate dumping 

margins that contain zeroing in future 

sunset reviews, or both. 

Several commentators urge that the 

Department should stop relying on 

dumping margins that contain zeroing 

in sunset reviews immediately. One 

commentator argues that, for sunset 

reviews, there is no reason to delay 

implementation until 60 business days 

after the date of publication of the Final 

Modification for Reviews because the 

proposed change is only to the 

Department’s practice, and no change is 

proposed to its regulation. 

Other commentators make more 

specific proposals for implementing the 

new practice in sunset reviews. One 

such proposal is for the Department to 

recalculate dumping margins without 

zeroing upon a showing by a respondent 

company that its individual dumping 

margin or the ‘‘all others’’ dumping 

margin would be zero or de minimis. 

Another commentator proposes that the 

Department conduct a changed 

circumstances review to determine 

whether dumping would be likely to 

continue or recur if the order were 

revoked upon a showing that the 

dumping margins without zeroing in 

three reviews completed after January 

23, 2007, are zero or de minimis. One 

other commentator requests that the 

Department both recalculate dumping 

margins in a sunset review to eliminate 

zeroing, effective immediately, and then 

transmit to the ITC the non-zeroed 

dumping margins that are likely to exist 

if an order were revoked effective for 

sunset reviews initiated after the 

publication of the proposed rules. One 

commentator concerned about sunset 

reviews contends that the Department 

only suggests it will use section 129 to 

implement the DSB’s recommendations 

and rulings in US—Continued Zeroing 

(EC), WT/DS350/R, para. 8.1(f), WT/ 

DS350/AB/R (DS 350), but does not 

commit to do so. This commentator asks 

the Department to state clearly that it 

will implement DS 350 under section 

129 when making its determination. 

This commentator also contends that 

there is no impediment to reopening 

prior sunset determinations under 

section 129. 

Department Position: In response to 

comments from several parties, in the 

Final Modification for Reviews, the 

Department clarified that when making 

sunset determinations, it will modify its 

practice such that it will not rely on 

dumping margins determined in a 

manner found to be WTO-inconsistent 

in US—Zeroing (EC), US—Zeroing 

(Japan), US—Stainless Steel (Mexico), 

and in US—Continued Zeroing (EC). 

While it is possible that in some 

instances, dumping margins will need 

to be recalculated to avoid reliance on 

such dumping margins, the Department 

finds that those situations can be 

addressed on a case-specific basis. 

When determining whether 

revocation of an antidumping order 

would be likely to lead to continuation 

or recurrence of dumping, section 

752(c)(1) of the Act directs the 

Department to consider dumping 

margins determined during the original 

investigation and in subsequent 

reviews, and import volumes of the 

subject merchandise. The Department’s 

regulations further provide that only in 

the most extraordinary circumstances 

will the Department rely on dumping 

margins other than those calculated and 

published during prior determinations. 

19 CFR 351.218(e)(2)(i). The Department 

expects that in the vast majority of 

cases, it will have a sufficient number 

of dumping margins, determined in a 

manner not found to be WTOinconsistent in these disputes, and 

sufficient information pertaining to 

import volumes, upon which to base its 

sunset determinations. Future dumping 

margins in reviews will be calculated in 

accordance with this Final Modification 

for Reviews. Furthermore, the 

Department may also rely on past 

dumping margins determined in a 

manner not found to be WTOinconsistent in these disputes, such as 

dumping margins recalculated pursuant 

to section 129 proceedings, dumping 

margins determined on the basis of 

adverse facts available and dumping 

margins where no offsets were denied 

because all comparison results were 

positive. Additionally, if dumping 

margins declined over the five-year 

period, or if there are no dumping 

margins, decreased volumes provide 

another basis that indicates whether 

dumping is likely to continue or recur 

if the discipline of the order is removed. 

Although the Department will 

evaluate each sunset determination on a 

case-by-case basis to determine whether 

recalculations are needed, the 

Department does not anticipate that, 

apart from the ‘‘most extraordinary 

circumstances’’ already provided for in 

its regulations, it will need to rely on 

dumping margins other than those 

published in prior determinations in 

order to avoid reliance on margins 

determined in a manner found to be 

WTO-inconsistent in these disputes. For 

these reasons, the Department disagrees 

that it is necessary to adopt a practice 

or methodology which assumes that 

previously determined dumping 

margins will always need to be 

recalculated in the context of sunset 

reviews. 

The Department disagrees that it is 

required to recalculate dumping 

margins determined in a manner found 

to be WTO-inconsistent in these 

disputes that were calculated during the 

five-year period so that it may examine 

dumping margin trends over time. 

When determining whether dumping is 

likely to continue in the absence of an 

antidumping duty order during a fiveyear sunset review, the Department 

looks to whether dumping continued at 

any level after the issuance of the 

order.23 While section 752(c)(1) of the 

Act directs the Department to 

‘‘consider’’ previously determined 

dumping margins as the basis for its 

likelihood determination, there is no 

requirement that all dumping margins 

determined during that period form the 

basis for deciding whether the order 

should be continued. Accordingly, the 

Department does not agree that all 

dumping margins calculated during the 

five-year sunset period must be 

recalculated as a matter of course in 

order for the U.S. to be compliant with 

the statute. 

The Department further disagrees 

with the suggestion that it should 

modify section 351.414(d) of its 

regulations to indicate that the 

Department will recalculate dumping 

margins in sunset determinations using 

the A–A comparison methodology. The 

Department has already indicated that it 

does not anticipate that it will need to 

recalculate dumping margins other than 

in the most extraordinary 

circumstances, and such circumstances 

are already provided for in its 

regulations. See 19 CFR 351.218(e)(2)(i). 

Accordingly, those instances where the 

Department may need to rely on 

dumping margins other than those 

previously determined can be addressed 

pursuant to 19 CFR 351.218(e)(2)(i) on 

a case-specific basis. 

The Department has further clarified 

that this Final Modification for Reviews 

will apply to all sunset reviews pending 

before the Department for which either 

preliminary results of sunset review, or 

expedited final results of sunset review 

are issued more than 60 days after the 

date of publication of the Department’s 

Final Modification for Reviews. The 60- 

day period will allow sufficient time 


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prior to issuance of a preliminary sunset 

determination, or a final expedited 

sunset determination, for parties to 

provide comments within the context of 

each individual proceeding. For reasons 

fully set forth in response to comments 

on the Effective Date of Implementation 

section of this notice, the Department 

finds this to be an adequate amount of 

time to permit parties and the 

Department to respond to novel and 

complex issues that arise as a result of 

implementing the modified regulations. 

The Department does not find that a 

separate notice and comment period is 

necessary. 

The Department finds the 

commentator’s request that it commit to 

implementing ‘‘as applied’’ findings of 

inconsistency through a section 129 

proceeding in certain sunset reviews to 

be beyond the scope of this section 123 

determination. See Implementation 

through Section 129 Proceedings and 

Application to Completed Reviews 

section of this notice. The purpose of 

this Final Modification for Reviews is 

not to address or fix how the Final 

Modification for Reviews is to be 

applied in the specific proceedings that 

were challenged, but rather is to address 

the broad elements of the prior practice 

that were found WTO-inconsistent. The 

Department has addressed the 

inconsistencies found with respect to 

sunset reviews by including a 

modification of the methodology that 

will be applied in future sunset reviews. 

Whether any particular section 129 

proceeding will be requested by the 

Office of the USTR for certain sunset 

reviews is beyond the scope of this 

Final Modification for Reviews. 

Transaction-to-Transaction 

Comparisons in Investigations 

A few commentators requested 

clarification concerning the 

Department’s use of the T–T comparison 

methodology in original antidumping 

duty investigations. One commentator 

interpreted the Department’s statement 

to signify that the Department would 

provide offsets for non-dumped 

transactions when applying the T–T 

methodology. Others requested 

confirmation that it will provide offsets 

for non-dumped sales when using this 

comparison methodology. 

Department Position: In its Proposed 

Modification for Reviews, the 

Department stated that ‘‘to the extent 

that any prior original antidumping 

duty investigations using T–T 

comparisons could be considered as 

establishing a practice of the 

Department with respect to the granting 

or denial of offsets for non-dumped 

comparisons when calculating the 

weighted average margin of dumping 

* * *, the Department proposes to 

withdraw any such practice.’’ 76 FR 

81534. In its Final Modification for 

Reviews, the Department has now 

clarified that to the extent that any prior 

original antidumping duty 

investigations using T–T comparisons 

could be considered an established 

practice of the Department with respect 

to the denial of offsets for non-dumped 

comparisons when calculating the 

weighted average margin of dumping, 

the Department withdraws any such 

practice. Specifically, when the 

Department applies the T–T comparison 

methodology in a future proceeding— 

regardless of whether offsets are 

provided—it will do so without 

reference to or reliance on any prior 

practice because, such practice has been 

withdrawn. 

Effective Date of Implementation 

A number of commentators propose 

that the Department implement the new 

methodology in reviews initiated 60 

days or later after the date of the 

publication of the Final Modification for 

Reviews. Some of these parties explain 

that applying the new method to 

reviews that are pending as of the 

effective date would confuse interested 

parties in several different ways. These 

parties argue that, due to the 

complicated nature of this new policy, 

the Department is likely to face many 

complex and novel issues concerning its 

case-specific application. 

Some commentators claim that 

implementing the new methodology in 

reviews that have already been initiated 

would be unfair to all parties who base 

decisions on whether to request and/or 

participate in reviews on the application 

of certain standard methodologies. 

Some commentators argue that because 

the date of the preliminary results of 

review for a proceeding can be subject 

to circumstances in the individual 

proceeding, the methodology applied 

could differ among proceedings that 

were initiated on the same day, which 

they claim would result in arbitrary 

treatment. One party argues that the 

arbitrariness of the effective date would 

provide an incentive for respondents to 

create complexity to slow the process or 

for domestic parties to neglect 

inadequacies to expedite the process. 

They contend that the statute intends 

for neither scenario and many of these 

concerns can be mitigated by applying 

the final rules to newly initiated 

reviews. 

Other commentators argue that the 

Department’s proposed effective date is 

too long and takes unnecessary time to 

implement the new policy. Some 

commentators cite to the Final 

Modification for Investigations (71 FR 

77722), as precedent, and note that in 

that instance, the Department applied 

the new methodology to all 

investigations that were pending before 

the Department. Other commentators 

suggest that the Department apply the 

new method to all reviews where the 

final results are scheduled to be issued 

more than 60 days after the date of 

publication. 

Some commentators argue that, 

because it only takes a simple 

programming modification to 

implement the final rule, the 60-day 

implementation period is too long even 

for a review for which the preliminary 

results have been issued. Several of 

these commentators argue that faster 

implementation will pose less litigation 

risk to the United States and result in a 

reduced litigation burden for all parties. 

Some parties argue that because the 

provision of offsets is an entirely 

administrative practice, the 

modification can be applied 

immediately, and there is no need for 

further delay. 

Several commentators suggest that the 

effective date should be the date of the 

publication of the notice of the final 

rule. Some commentators suggest that 

the Department implement the final rule 

and modification for all reviews where 

the final results are expected to be 

issued 30 business days or later after the 

publication date. Some other 

commentators contend that, in 

accordance with section 123(g)(2) of the 

URAA, the 60-day period should begin 

when the Department begins its 

consultation with Congress unless the 

President determines an earlier effective 

date. One commentator argues that the 

effective date should be either the date 

of the publication of the final rules or 

60 days after the Department begins its 

consultation, whichever is later. Some 

other commentators request that the 

Department implement this new policy 

immediately but do not suggest any 

specific date as the effective date. 

Some commentators in favor of an 

earlier effective date argue that an 

earlier date would not impose a greater 

administrative burden because applying 

the necessary changes would not require 

new factual information. These parties 

further argue that the Department’s 

Proposed Modification for Reviews 

methodology has afforded adequate 

notice to the public that the 

methodology might change. 

One commentator requests that the 

Department conduct all sunset reviews 

using dumping margins calculated 

without zeroing no later than the by the 

effective date adopted for reviews. 


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24See Statement of Administrative Action, p. 

1026, H. Doc. No. 103–316, vol. 1 (1994). 25See Statement of Administrative Action, p. 

1021, H. Doc. No. 103–316, vol. 1 (1994). 26See e.g. Procedures for Conducting Five-Year 

(‘‘Sunset’’) Reviews of Antidumping and 

Countervailing Duty Orders, 70 FR 62062 (Oct. 28, 

2005) (applying amended regulations to sunset 

reviews initiated after the effective date); Notice of 

Final Modification for Reviews of Agency Practice 

Under Section 123 of the Uruguay Round 

Agreements Act, 68 FR 37125, 37138 (June 23, 

2003) (applying new privatization methodology to 

investigations and reviews initiated on or after the 

effective date); Antidumping Proceedings: Affiliated 

Party Sales in the Ordinary Course of Trade, 67 FR 

69186, 69197 (Nov. 15, 2002) (‘‘Arms Length Test’’) 

(applying new methodology to investigations and 

reviews initiated on or after the effective date); 

Amended Regulation Concerning the Revocation of 

Antidumping and Countervailing Duty Orders, 64 

FR 51236 (Sept. 22, 1999). 

27See Basis for Normal Value When Foreign 

Market Sales Are Below Cost, Policy Bulletin 98.1 

(Feb. 23, 1998); Treatment of Inventory Carrying 

Cost in Constructed Value, Policy Bulletin 94.1 

(Mar. 24, 1994); Final Modification for 

Investigations, 71 FR 77722 (Dec. 27, 2006) 

(eliminating zeroing in investigations pending 

before the Department as of the effective date of the 

Final Rule.) 

28See Final Modification for Investigations, 71 FR 

at 77725. 

Department Position: After careful 

consideration of the arguments 

presented by the commentators and of 

the information needed to implement 

this change, and weighing the 

administrative burdens, the Department 

determines that it will apply the Final 

Modification for Reviews in reviews 

pending before the Department for 

which the preliminary results are issued 

more than 60 days after the date of 

publication of the Department’s Final 

Rule and Final Modification for 

Reviews. Additionally, the Final 

Modification for Reviews will apply in 

all sunset reviews pending before the 

Department for which either the 

preliminary results of sunset review, or 

expedited final results of sunset review, 

are issued more than 60 days after the 

date of publication of the Department’s 

Final Rule and Final Modification for 

Reviews. In the Proposed Modification 

for Reviews, the Department indicated 

that the new methodology would be 

effective in reviews pending before the 

Department for which the preliminary 

results are issued more than 60 business 

days after the date of publication of the 

Department’s final rule and 

modification. As further explained 

below, the Department finds 60 days to 

be an adequate amount of time for 

implementation. Therefore, in this Final 

Modification for Reviews, the 

Department has eliminated the 

requirement that preliminary results be 

issued more than 60 business days after 

the Final Modification for Reviews in 

order for the new method to apply. 

This timetable for applying the new 

methodology is legally permissible and 

appropriate. The Department is 

adopting this Final Modification for 

Reviews in response to several WTO 

dispute settlement findings, pursuant to 

section 123(g)(1) of the URAA. Section 

123(g)(2) of the URAA provides that a 

final rule or modification may not go 

into effect before the end of the 60-day 

period after the consultations described 

in section 123(g)(1)(E) begin, unless the 

President determines that an earlier 

effective date is in the national interest. 

While the statute establishes the manner 

of determining the effective date of any 

final rule or modification adopted 

pursuant to section 123, the statute does 

not specify whether the final rule or 

modification must apply only to new 

segments of proceedings initiated after 

the effective date, or may apply to any 

segments pending as of the effective 

date. 

Similarly, the SAA provides no more 

specific guidance regarding the 

application of any final rule or 

modification adopted pursuant to 

section 123. The SAA states that section 

129 determinations will apply only with 

respect to entries occurring on or after 

the effective date.24 However, the SAA 

makes no such statement with respect to 

section 123 modifications. The SAA 

merely states, ‘‘A final rule may not go 

into effect before the end of the 60-day 

consultation period unless the President 

determines that an earlier date is in the 

national interest.’’ 25

The applicable date for previous 

section 123 determinations has been 

determined by the Department on a 

case-by-case basis. In four prior section 

123 proceedings, the Department has 

applied the final modification or final 

rule to segments initiated after the 

effective date.26 On other occasions, the 

Department has adopted and applied a 

change in policy involving a statutory 

interpretation to all segments pending 

as of the date of the change.27

The Department disagrees with 

commentators that it is in a position to 

adopt a more expedient implementation 

date because this Final Modification for 

Reviews does not entail a statutory 

change. When considering changes or 

modifications to a longstanding 

methodology in an individual 

determination, the Department is 

required, at a minimum, to provide 

parties with adequate notice and 

opportunity to comment within the 

context of each proceeding, prior to 

making its final determination. Section 

782(g) of the Tariff Act of 1930; see also 

Koyo Seiko Co., Ltd v. United States, 

516 F. Supp. 2d 1323, 1333–34 (CIT 

2007), aff’d 551 F.3d 1286 (Fed. Cir. 

2008). 

This Final Modification for Reviews 

entails a modification to the averaging 

methodology applied in reviews that 

was longstanding. Therefore, in 

transitioning to the new methodology, 

the Department will need to ensure that 

sufficient time is provided within the 

context of individual proceedings to 

allow parties to submit any new data 

that may be necessary, if desired. The 

Department will then need time to 

examine and analyze any additional 

data, and will need to permit parties to 

provide comments on any new data that 

is submitted. Additionally, applying the 

new methodology prior to issuance of 

the preliminary results is appropriate 

because the Department will need to 

allow sufficient time for parties to 

comment on the application of the new 

methodology as it applies in the context 

of individual proceedings. 

The Department is not persuaded that 

it should adopt a shorter timetable 

simply because it was able to do so 

when it modified its methodology to 

provide offsets in investigations. In that 

instance, the Department found it 

appropriate to apply the modification to 

all pending proceedings at the time of 

the effective date, but only after 

ensuring the feasibility of such an 

expedited implementation, and 

concluding that such a timeframe would 

not unfairly prejudice any of the parties 

to those proceedings.28 With respect to 

this Final Modification for Reviews, the 

Department determines that the 

modified methodology must apply only 

in proceedings where the preliminary 

results have not yet been issued in order 

to ensure that all parties have ample 

time to submit any new data and 

provide comment, and that the 

Department has adequate time to 

consider any new data and comments. 

For all of these reasons, the Department 

is not persuaded by arguments that it 

could apply the new method more 

expeditiously without compromising 

principles of accuracy, fairness, and due 

process. 

Conversely, the Department also 

disagrees with commentators who argue 

that a longer timetable is necessary. The 

Department agrees that the new policy 

represents a substantive shift in 

methodology, and the Department 

expects to encounter novel issues as it 

begins to apply this methodology. The 

timetable already allows parties the 

opportunity to submit any new data, 

and to provide comment prior to the 

preliminary results. Parties will then 

have an additional opportunity to 

comment on the methodology prior to 

the final results, after it is applied. The 

Department finds this to be an adequate 


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amount of time that will permit parties 

and the Department to respond to any 

novel or complex issues that arise in 

any particular case as a result of the new 

method. 

The Department does not agree that to 

maintain fairness and non-arbitrary 

application of methodology, it must 

only apply the new methodology to 

reviews initiated after the effective date. 

Uncertainty of methodology is an 

insufficient justification for prolonging 

the application of a new methodology. 

The United States uses a ‘‘retrospective’’ 

assessment system under which final 

liability for antidumping duties is 

determined after the merchandise is 

imported. 19 CFR 351.212(a). While the 

Department must abide by notice 

provisions of the statute, changes in 

methodology like all other antidumping 

review determinations, permissibly 

involve retroactive effect. SKF USA Inc. 

v. United States, 537 F.3d 1373, 1381 

(Fed. Cir. 2008). Requiring changes to be 

applied only to future entries would 

hinder the Department’s ability to give 

timely effect to any changes in its own 

practices. Koyo Seiko Co., 516 F. Supp. 

2d at 1334, aff’d 551 F.3d at 1286. 

Moreover, the public has now been on 

notice of an impending change in 

methodology because the Proposed 

Modification for Reviews has been in the 

public realm since December 28, 2010, 

providing more than ample time for 

parties to consider their options with 

respect to upcoming review periods. 

Implementation Through Section 129 

Proceedings and Application to 

Completed Reviews 

Many commentators agree that 

implementation of the adverse WTO 

dispute settlement findings listed in the 

Proposed Modification for Reviews 

should occur pursuant to section 129 of 

the URAA and many further agree that 

pursuant to section 129, any changes 

must be prospective only. Relying on 

section 129(c)(1), these commentators 

further argue that the changes should 

apply only to entries that remain 

unliquidated on or after the date USTR 

directs the Department to implement. 

Several commentators claim that the 

Department has consistently applied 

section 129 in this manner. 

Numerous other commentators argue 

that the calculation and assessment of 

antidumping duties using zeroing 

should have ceased when the reasonable 

period of time (‘‘RPT’’) for compliance 

ended for the various WTO rulings. 

These commentators claim that 

dumping margins should be 

recalculated for the reviews involved in 

each of the WTO proceedings as well as 

any determinations or antidumping 

duty assessments arrived at using 

zeroing after the end of the applicable 

RPT. According to some other 

commentators, this means that the 

United States must immediately cease to 

apply cash deposit or antidumping duty 

assessment rates calculated using 

zeroing and replace them with nonzeroed rates, must reliquidate any 

entries that were liquidated after the 

end of the RPT at assessment rates 

calculated with zeroing, must 

recalculate cash deposit rates relying on 

zeroing and release excess cash deposits 

made after the RPT, and must not use 

zeroing in any ongoing reviews. One 

commentator emphasizes that this must 

occur regardless of the dates of entry. 

Other commentators argue that any 

excess duties collected should be 

refunded with interest. 

Some commentators urge the 

Department not to interpret section 

129(c)(1) as precluding the agency from 

taking action that affects imports that 

entered before the date on which USTR 

directs the Department to implement. 

Instead, consistent with past 

representations to the WTO, the 

Department should find that section 

129(c)(1) is ambiguous with respect to 

the treatment of such entries. 

Some commentators argue that 

Commerce might use one or more of 

several alternatives to come into 

compliance with respect to past entries, 

including the use of a changed 

circumstances review, voluntary 

remands for any reviews subject to 

litigation, use of the Department’s broad 

authority under 19 U.S.C. 1617 to settle 

antidumping claims, or legislation 

requiring CBP to reliquidate entries that 

were liquidated after the end of the RPT 

at assessment rates using zeroing. 

Other commentators urge the 

Department to apply the final rule to 

unliquidated entries in all pending 

reviews, i.e., not just those subject to 

section 129 proceedings. They contend 

that treating imports from different 

countries and under different orders 

differently will prompt new and 

unnecessary litigation in the WTO. 

Other commentators argue that the final 

rule should be effective retrospectively 

to any entries in a completed review 

that remain unliquidated as of 60 days 

after the publication of the Final 

Modification for Reviews. Some 

commentators claim that the 

Department should apply the new 

methodology to entries that have not 

been liquidated due to pending 

litigation. One commentator contends 

implementing in this manner would be 

prospective to the future liquidation, 

and would not constitute retroactive 

implementation. Some other 

commentators argue that any dumping 

margins with present effects should be 

revised and applied prospectively from 

the effective date. 

Another commentator points out that 

when the Proposed Modification for 

Reviews speaks of applying the new 

methodology pursuant to section 129, it 

only references disputes brought by the 

European Union, Japan and Mexico. 

This commentator contends, however, 

the Appellate Body’s finding in USZeroing (EC) makes clear that the United 

States’ obligations to remedy zeroing 

extend to reviews even though a 

Member may only have challenged the 

Department’s use of zeroing in the 

antidumping investigation. Thus, the 

Department must recalculate dumping 

margins and antidumping duty 

assessment rates for subsequent reviews 

of those orders. Other commentators 

urge the Department to apply the new 

methodology to reviews subject to all 

ongoing and future WTO proceedings in 

which zeroing is an issue before a panel 

or the Appellate Body. 

Other commentators argue that the 

statute prohibits the Department from 

implementing this new policy on entries 

covered by completed reviews because 

they all entered the United States before 

the effective date. The statute only 

permits the Department to abandon 

zeroing with respect to entries occurring 

on or after the date that USTR directs 

implementation, and which remain 

unliquidated at the time the Department 

implements its determination. Because 

entries covered by completed reviews 

entered prior to the effective date, the 

Department is prohibited from 

recalculating dumping margins for 

entries covered by those reviews. This 

commentator argues the Department 

should clarify that it will not recalculate 

dumping margins for completed 

reviews. 

Department Position: The Department 

is adopting this Final Modification for 

Reviews pursuant to section 123 of the 

URAA to put in place for future reviews 

and certain pending reviews a 

methodology that responds to the WTO 

findings of inconsistency. The 

Department finds that comments 

addressing how the new methodology 

should apply to specific ‘‘as applied’’ 

findings of inconsistency are beyond the 

scope of this section 123 determination 

because section 129 determinations are 

separate from section 123 

determinations under the URAA. The 

purpose of this Final Modification for 

Reviews is to address the broad elements 

of the prior practice that was found to 

be WTO-inconsistent. It is not intended 

to address how that practice was 

applied in the specific proceedings that 


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Federal Register / Vol. 77, No. 30 / Tuesday, February 14, 2012 / Rules and Regulations 8113 

were challenged. The Final Modification 

for Reviews makes clear that the new 

WTO-consistent methodology will be 

applicable to any determinations made 

pursuant to section 129 of the URAA in 

connection with the relevant WTO 

disputes. Whether any particular section 

129 proceeding will be requested by 

USTR is beyond the scope of this Final 

Modification for Reviews. Accordingly, 

the Final Modification for Reviews does 

not further specify the particular 

proceedings to which the new 

methodology will apply. 

With regard to the various arguments 

that suggest the new methodology 

should apply prior to the announced 

effective date, such as to entries subject 

to reviews that were completed or 

ongoing prior to the effective date, for 

reasons fully set forth in the Effective 

Date of Implementation section of this 

notice, the Department disagrees. The 

WTO-consistent methodology adopted 

will be applied in all reviews that are 

pending before the Department for 

which the preliminary results are issued 

60 days after the publication of the Final 

Modification for Reviews. 

Adopting a Final Modification for 

Reviews During the Negotiation of the 

Doha Round 

Some commentators suggest that the 

Department should delay this Final 

Modification for Reviews until the 

United States resolves this issue at the 

WTO through the Doha Development 

Agenda (Doha) negotiations. These 

commentators question whether these 

implementation efforts will weaken the 

U.S. negotiating position in the Doha 

Rules negotiations. They suggest the 

Department should hold off until the 

Doha negotiations are concluded, as this 

may obviate the need to implement at 

all. Nonetheless, if the Department 

chooses to implement, these 

commentators support U.S. efforts to 

seek correction, through the Doha Rules 

negotiations, of the Appellate Body 

decisions, which they view as 

‘‘extraordinarily flawed.’’ 

Department Position: The Department 

disagrees with commentators that it 

should wait until the Doha negotiations 

are concluded before adopting the Final 

Modification for Reviews. The 

Department is conducting this exercise 

pursuant to the procedures provided for 

in section 123 of the URAA. This 

modification is necessary to implement 

the DSB’s rulings and recommendations 

in the four, previously identified 

disputes—all of which necessarily dealt 

with the interpretation and application 

of existing WTO rules. Notwithstanding 

this Final Modification for Reviews, the 

Department will continue to work 

closely and actively with USTR with a 

view towards clarifying that the AD 

Agreement should not be read to require 

WTO Members to provide offsets for 

non-dumped comparisons. 

Application of the Final Modification 

for Reviews to Subject Merchandise 

From Non-Member Countries 

Two commentators representing 

interests or products from the Russian 

Federation note that Russia is in the 

process of joining the WTO, but is not 

yet a Member. These commentators 

argue that notwithstanding Russia’s 

non-Member status, the Department’s 

new methodology adopted in the Final 

Modification for Reviews should apply 

equally to subject merchandise from 

Russia. 

Department Position: As the 

Department has stated in its Final 

Modification for Reviews, the revised 

methodology will apply in reviews 

pending before the Department for 

which a preliminary results are issued 

more than 60 days after the date of 

publication of the Department’s Final 

Rule and Final Modification for 

Reviews. This includes reviews of 

antidumping orders without regard to 

whether the subject merchandise is from 

a WTO Member. 

Comments Unrelated to the Final 

Modification for Reviews 

One commentator argues that the 

2008 rescission of the targeted dumping 

regulation violates the Administrative 

Procedures Act (‘‘APA’’) because it was 

repealed without notice and comment. 

The commentator requests that the 

targeted dumping regulation be restored 

in the final rule. Another commentator 

suggests that the Department should 

take this opportunity to address and 

clarify several aspects of the targeted 

dumping methodology it claims are 

deficient. 

A few commentators request that the 

Department clarify that the new 

averaging groups will still be based on 

CONNUMs. One commentator points 

out that in stating that ‘‘an averaging 

group will consist of subject 

merchandise that is identical or 

virtually identical in all physical 

characteristics and that is sold to the US 

at the same level of trade,’’ the 

Department does not define the term 

‘‘identical or virtually identical in all 

physical characteristics.’’ Based on this, 

the commenter argues, it is unclear 

whether the proposal refers to 

merchandise that comprises individual 

CONNUMs. Other commentators note 

that the Proposed Modification for 

Reviews does not state how the 

Department will distinguish price 

averaging groups (e.g., by importer, 

manufacturer, level of trade, sale type, 

or CONNUM). A few commentators also 

seek clarification that the Department is 

not proposing to change how it 

identifies merchandise for the purposes 

of model match methodology. 

Department Position: These 

comments are beyond the scope of this 

action. The Department reiterates that 

the purpose of this exercise is to bring 

the United States into conformity with 

its WTO obligations as articulated in the 

dispute settlement reports cited above. 

The Department has proposed no 

changes to these other aspects of its 

dumping calculations, and thus finds 

these suggestions to be beyond the 

scope of this section 123 proceeding. 

Parties are free to suggest that the 

Department consider these comments in 

the context of a particular proceeding, 

as appropriate. 

Timetable 

The Final Rule and Final Modification 

for Reviews will be effective and 

applicable to all reviews pending before 

the Department for which the 

preliminary results are issued after 

April 16, 2012. The Department will 

further apply the Final Rule and Final 

Modification of Reviews to all sunset 

reviews pending before the Department 

for which either the preliminary results 

or expedited final results of sunset 

review are issued after April 16, 2012. 

This methodology will be used in 

implementing the findings of the WTO 

panels in US-Zeroing (EC), US-Zeroing 

(Japan), US-Stainless Steel (Mexico), 

and US-Continued Zeroing (EC), with 

respect to any antidumping duty 

proceedings conducted pursuant to 

section 129 of the URAA. This 

methodology will also be applicable to 

any reviews currently discontinued by 

the Department if such reviews are 

continued after April 16, 2012 by reason 

of a final and conclusive judgment of a 

U.S. Court. 

Classification 

Executive Order 12866 

The Final Rule has been determined 

to be not significant for purposes of 

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 this action 

would not have a significant economic 

impact on a substantial number of small 

entities. Parties for whom the 


pmangrum on DSK3VPTVN1PROD with RULES
8114 Federal Register / Vol. 77, No. 30 / Tuesday, February 14, 2012 / Rules and Regulations 

Department determines a weightedaverage margin of dumping or 

antidumping duty assessment rate 

include foreign exporters and 

manufacturers, some of whom are 

affiliated with U.S. companies and U.S. 

importers. Some of these entities 

affected by the rule may be considered 

small entities under the SBA standard. 

The Department has determined that 

this action will not have a substantial 

economic impact on a significant 

number of small entities because the 

costs associated with antidumping duty 

liability generally will not increase as a 

result of the proposed rule. No 

comments were received regarding the 

economic impact of this rule. As a 

result, a final regulatory flexibility 

analysis is not required and one was not 

prepared. 

Paperwork Reduction Act 

This action 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. 

Dated: February 7, 2012. 

Paul Piquado, 

Assistant Secretary for Import 

Administration. 

For the reasons stated, 19 CFR part 

351 is amended as follows: 

PART 351—ANTIDUMPING AND 

COUNTERVAILING DUTIES 

■ 1. The authority citation for 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. 

Subpart B—Antidumping and 

Countervailing Duty Procedures 

■ 2. Section 351.414 is revised to read 

as follows: 

§ 351.414 Comparison of normal value 

with export price (constructed export price). 

(a) Introduction. This section explains 

when and how the Secretary will 

average prices in making comparisons of 

export price or constructed export price 

with normal value. (See section 777A(d) 

of the Act.) 

(b) Description of methods of 

comparison—(1) Average-to-average 

method. The ‘‘average-to-average’’ 

method involves a comparison of the 

weighted average of the normal values 

with the weighted average of the export 

prices (and constructed export prices) 

for comparable merchandise. 

(2) Transaction-to-transaction 

method. The ‘‘transaction-totransaction’’ method involves a 

comparison of the normal values of 

individual transactions with the export 

prices (or constructed export prices) of 

individual transactions for comparable 

merchandise. 

(3) Average-to-transaction method. 

The ‘‘average-to-transaction’’ method 

involves a comparison of the weighted 

average of the normal values to the 

export prices (or constructed export 

prices) of individual transactions for 

comparable merchandise. 

(c) Choice of method. (1) In an 

investigation or review, the Secretary 

will use the average-to-average method 

unless the Secretary determines another 

method is appropriate in a particular 

case. 

(2) The Secretary will use the 

transaction-to-transaction method only 

in unusual situations, such as when 

there are very few sales of subject 

merchandise and the merchandise sold 

in each market is identical or very 

similar or is custom-made. 

(d) Application of the average-toaverage method—(1) In general. In 

applying the average-to-average method, 

the Secretary will identify those sales of 

the subject merchandise to the United 

States that are comparable, and will 

include such sales in an ‘‘averaging 

group.’’ The Secretary will calculate a 

weighted average of the export prices 

and the constructed export prices of the 

sales included in the averaging group, 

and will compare this weighted average 

to the weighted average of the normal 

values of such sales. 

(2) Identification of the averaging 

group. An averaging group will consist 

of subject merchandise that is identical 

or virtually identical in all physical 

characteristics and that is sold to the 

United States at the same level of trade. 

In identifying sales to be included in an 

averaging group, the Secretary also will 

take into account, where appropriate, 

the region of the United States in which 

the merchandise is sold, and such other 

factors as the Secretary considers 

relevant. 

(3) Time period over which weighted 

average is calculated. When applying 

the average-to-average method in an 

investigation, the Secretary normally 

will calculate weighted averages for the 

entire period of investigation. However, 

when normal values, export prices, or 

constructed export prices differ 

significantly over the course of the 

period of investigation, the Secretary 

may calculate weighted averages for 

such shorter period as the Secretary 

deems appropriate. When applying the 

average-to-average method in a review, 

the Secretary normally will calculate 

weighted averages on a monthly basis 

and compare the weighted-average 

monthly export price or constructed 

export price to the weighted-average 

normal value for the contemporaneous 

month. 

(e) Application of the average-totransaction method—In applying the 

average-to-transaction method in a 

review, when normal value is based on 

the weighted average of sales of the 

foreign like product, the Secretary will 

limit the averaging of such prices to 

sales incurred during the 

contemporaneous month. 

(f) Contemporaneous Month. 

Normally, the Secretary will select as 

the contemporaneous month the first of 

the following months which applies: 

(1) The month during which the 

particular U.S. sales under 

consideration were made; 

(2) If there are no sales of the foreign 

like product during this month, the 

most recent of the three months prior to 

the month of the U.S. sales in which 

there was a sale of the foreign like 

product. 

(3) If there are no sales of the foreign 

like product during any of these 

months, the earlier of the two months 

following the month of the U.S. sales in 

which there was a sale of the foreign 

like product. 

[FR Doc. 2012–3290 Filed 2–13–12; 8:45 am] 

BILLING CODE 3510–DS–P 

INTERNATIONAL TRADE 

COMMISSION 

19 CFR Chapter II 

Plan for Retrospective Analysis of 

Existing Rules 

AGENCY: International Trade 

Commission. 

ACTION: Policy statement. 

SUMMARY: The United States 

International Trade Commission 

(Commission) gives notice of the 

adoption of a plan for the retrospective 

analysis of its existing regulations. 

FOR FURTHER INFORMATION CONTACT: 

Peter L. Sultan, Office of the General 

Counsel, United States International 

Trade Commission, telephone 202–205– 

3094. Hearing-impaired individuals are 

advised that information on this matter 

can be obtained by contacting the 

Commission’s TDD terminal at 202– 


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