Federal Register / Vol. 63, No. 73 /Thursday, April 16, 1998 / Notices 18871

Dated: April 9, 1998.

Anthony J. Meyer,

Coordinator, Trade Adjustment and

Technical Assistance.

[FR Doc. 98–10068 Filed 4–15–98; 8:45 am]

BILLING CODE 3510–24–M

DEPARTMENT OF COMMERCE

International Trade Administration

Policies Regarding the Conduct of

Five-year (‘‘Sunset’’) Reviews of

Antidumping and Countervailing Duty

Orders; Policy Bulletin

AGENCY: Import Administration,

International Trade Administration,

Department of Commerce.

ACTION: Policy Bulletin; request for

comments.

SUMMARY: The Department of Commerce

is proposing policies regarding the

conduct of five-year (‘‘sunset’’) reviews

of antidumping and countervailing duty

orders and suspended investigations

pursuant to the provisions of sections

751(c) and 752 of the Tariff Act of 1930,

as amended, and the Department’s

regulations. The proposed policies are

intended to complement the applicable

statutory and regulatory provisions by

providing guidance on methodological

or analytical issues not explicitly

addressed by the statute and

regulations.

DATES: To be assured of consideration,

written comments must be received not

later than May 12, 1998. Rebuttal

comments must be received not later

than June 2, 1998.

ADDRESSES: A signed original and six

copies of each set of comments,

including reasons for any

recommendation, along with a cover

letter identifying the commenter’s name

and address, should be submitted to

Robert S. LaRussa, Assistant Secretary

for Import Administration, Central

Records Unit, Room 1870, U.S.

Department of Commerce, Pennsylvania

Avenue and 14th Street, NW,

Washington, DC 20230; Attention:

Sunset Policy Bulletin.

FOR FURTHER INFORMATION CONTACT:

Melissa G. Skinner, Office of Policy,

Import Administration, International

Trade Administration, U.S. Department

of Commerce, at (202) 482–1560, or

Stacy J. Ettinger, Office of the Chief

Counsel for Import Administration, U.S.

Department of Commerce, at (202) 482–

4618.

SUPPLEMENTARY INFORMATION: This

policy bulletin proposes guidance

regarding the conduct of sunset reviews.

As described below, the proposed

policies are intended to complement the

applicable statutory and regulatory

provisions by providing guidance on

methodological or analytical issues not

explicitly addressed by the statute and

regulations. We invite public comment

on the policies.

Request for Comment

The Department solicits comments

pertaining to its proposed policies

concerning sunset reviews. Initial

comments should be received by the

Assistant Secretary not later than May

12, 1998. Any rebuttals to the initial

comments should be received by the

Assistant Secretary not later than June 2,

1998. Commenters should file a signed

original and six copies of each set of

initial and rebuttal comments. All

comments will be available for public

inspection and photocopying in the

Import Administration’s Central

Records Unit, Room B–099, between the

hours of 8:30 am and 5:00 pm on

business days.

Each person submitting a comment

should include the commenter’s name

and address, and give reasons for any

recommendations. To facilitate their

consideration by the Department, initial

and rebuttal comments regarding these

proposed policies should be submitted

in the following format: (1) number each

comment in accordance with the

paragraph numbering of the proposed

policy being addressed; (2) begin each

comment on a separate page; (3) provide

a brief summary of the comment (a

maximum of three sentences) and label

this section ‘‘Summary of the

Comment;’’ and (4) concisely state the

issue identified and discussed in the

comment and provide reasons for any

recommendation.

To help simplify the processing and

distribution of comments, the

Department requests the submission of

initial and rebuttal comments in

electronic form to accompany the

required paper copies. Comments filed

in electronic form should be on a DOS

formatted 3.5′′ diskette in either

WordPerfect format or a format that the

WordPerfect program can convert and

import into WordPerfect. Please make

each comment a separate file on the

diskette and name each separate file

using the paragraph numbering of the

proposed policy being addressed in the

comment.

Comments received on diskette will

be made available to the public on the

Internet at the following address: ‘‘http:/

/www.ita.doc.gov/importladmin/

records/’’. In addition, upon request, the

Department will make comments filed

in electronic form available to the

public on 3.5′′ diskettes (at cost), with

specific instructions for accessing

compressed data (if necessary). Any

questions concerning file formatting,

document conversion, access on the

Internet, or other electronic filing issues

should be addressed to Andrew Lee

Beller, IA Webmaster, at (202) 482–

0866.

Dated: April 10, 1998.

Robert S. LaRussa,

Assistant Secretary for Import

Administration.

Policy Bulletin 98:3

Policies Regarding the Conduct of Fiveyear (‘‘Sunset’’) Reviews of

Antidumping and Countervailing Duty

Orders

Sunset Review Policies

I. Overview

II. Sunset Reviews in Antidumping

Proceedings

A. Determination of Likelihood of

Continuation or Recurrence of Dumping

1. In general

2. Basis for likelihood determination

3. Likelihood of continuation or recurrence

of dumping

4. No likelihood of continuation or

recurrence of dumping

5. Treatment of zero or de minimis margins

B. Magnitude of the Margin of Dumping

That is Likely to Prevail

1. In general

2. Use of a more recently calculated margin

3. Duty absorption

C. Consideration of Other Factors

1. In general

2. Example

3. Timing of determination of good cause

III. Sunset Reviews in Countervailing Duty

Proceedings

A. Determination of Likelihood of

Continuation or Recurrence of a

Countervailable Subsidy

1. In general

2. Basis for likelihood determination

3. Continuation, temporary suspension, or

partial termination of a subsidy program

4. Subsidies for which benefits are

allocated over time

5. Elimination of a subsidy program or

exclusion of subject companies by the

foreign government

6. Treatment of zero or de minimis rates

B. Net Countervailable Subsidy That is

Likely to Prevail

1. In general

2. Determination of net countervailable

subsidy; company-specific rates

3. Adjustments to the net countervailable

subsidy

4. Nature of the countervailable subsidy

C. Consideration of Other Factors

1. Programs determined to provide

countervailable subsidies in other

investigations or reviews

2. Programs newly alleged to provide

countervailable subsidies
18872 Federal Register / Vol. 63, No. 73 /Thursday, April 16, 1998 / Notices

Sunset Review Policies

I. Overview

The Uruguay Round Agreements Act

(‘‘URAA’’) revised the Tariff Act of

1930, as amended (‘‘the Act’’), by

requiring that antidumping (‘‘AD’’) and

countervailing duty (‘‘CVD’’) orders be

revoked, and suspended investigations

be terminated, after five years unless

revocation or termination would be

likely to lead to a continuation or

recurrence of (1) dumping or a

countervailable subsidy, and (2)

material injury to the domestic industry.

The URAA assigns to the Department of

Commerce (‘‘the Department’’) the

responsibility of determining whether

revocation of an antidumping or

countervailing duty order, or

termination of a suspended

investigation, would be likely to lead to

a continuation or recurrence of dumping

or a countervailable subsidy. The

Department then must transmit to the

International Trade Commission (‘‘the

Commission’’) its likelihood

determination and its determination

regarding the magnitude of the margin

of dumping or the net countervailable

subsidy that is likely to prevail if the

order is revoked or the suspended

investigation is terminated. The URAA

also requires that the Department begin

initiating sunset reviews in July 1998,

that all sunset reviews of ‘‘transition

orders’’—those antidumping and

countervailing duty orders and

suspended investigations in effect on

January 1, 1995, the effective date of the

URAA—be initiated by December 31,

1999, and that all reviews of transition

orders be completed by June 30, 2001.

The URAA further requires that the

Department initiate a sunset review of

each order or suspended investigation

that is not a ‘‘transition order’’ not later

than 30 days before the fifth anniversary

of publication of the order or

suspension agreement in the Federal

Register. Pursuant to section 751(c)(1) of

the Act, initiation of sunset reviews is

automatic.

Sunset reviews of antidumping and

countervailing duty orders and

suspended investigations will be

conducted pursuant to the provisions of

the Act, including sections 751(c) and

752 of the Act, and the Department’s

regulations at 19 CFR Part 351,

including §§ 351.218, 351,221,

351.222(i), 351.307, 351.308(f), 351.309,

and 351.310 (see Procedures for

Conducting Five-year (‘‘Sunset’’)

Reviews of Antidumping and

Countervailing Duty Orders, 63 FR

13516 (March 20, 1998) (interim final

rules)). These policies are intended to

complement the applicable statutory

and regulatory provisions by providing

guidance on methodological or

analytical issues not explicitly

addressed by the statute and

regulations. In developing these

policies, the Department has drawn on

the guidance provided by the legislative

history accompanying the URAA,

specifically the Statement of

Administrative Action (‘‘the SAA’’),

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

House Report, H.R. Rep. No. 103–826,

pt. 1 (1994), and the Senate Report, S.

Rep. No. 103–412 (1994).

II. Sunset Reviews in Antidumping

Proceedings

A. Determination of Likelihood of

Continuation or Recurrence of Dumping

1. In General

In accordance with section 752(c)(1)

of the Act, in determining whether

revocation of an antidumping order or

termination of a suspended dumping

investigation would be likely to lead to

continuation or recurrence of dumping,

the Department will consider—

(a) the weighted-average dumping

margins determined in the investigation

and subsequent reviews, and

(b) the volume of imports of the

subject merchandise for the period

before and the period after the issuance

of the antidumping order or acceptance

of suspension agreement.

2. Basis for Likelihood Determination

Consistent with the SAA at 879, and

the House Report at 56, the Department

will make its determination of

likelihood on an order-wide basis.

3. Likelihood of Continuation or

Recurrence of Dumping

The SAA at 889, the House Report at

63, and the Senate Report at 52, state

that,

[D]eclining import volumes accompanied

by the continued existence of dumping

margins after the issuance of the order may

provide a strong indication that, absent an

order, dumping would be likely to continue,

because the evidence would indicate that the

exporter needs to dump to sell at pre-order

volumes.

In addition, the SAA at 890, and the

House Report at 63–64, state that,

[E]xistence of dumping margins after the

order, or the cessation of imports after the

order, is highly probative of the likelihood of

continuation or recurrence of dumping. If

companies continue to dump with the

discipline of an order in place, it is

reasonable to assume that dumping would

continue if the discipline were removed. If

imports cease after the order is issued, it is

reasonable to assume that the exporters could

not sell in the United States without

dumping and that, to reenter the U.S. market,

they would have to resume dumping.

Therefore, the Department normally

will determine that revocation of an

antidumping order or termination of a

suspended dumping investigation is

likely to lead to continuation or

recurrence of dumping where—

(a) dumping continued at any level

above de minimis after the issuance of

the order or the suspension agreement,

as applicable;

(b) imports of the subject merchandise

ceased after issuance of the order or the

suspension agreement, as applicable; or

(c) dumping was eliminated after the

issuance of the order or the suspension

agreement, as applicable, and import

volumes for the subject merchandise

declined significantly.

The Department recognizes that, in

the context of a sunset review of a

suspended investigation, the data

relevant to the criteria under paragraphs

(a) through (c), above, may not be

conclusive with respect to likelihood.

Therefore, the Department may be more

likely to entertain good cause arguments

under paragraph II.C in a sunset review

of a suspended investigation.

4. No Likelihood of Continuation or

Recurrence of Dumping

The SAA at 889–90, and the House

Report at 63, state that,

[D]eclining (or no) dumping margins

accompanied by steady or increasing imports

may indicate that foreign companies do not

have to dump to maintain market share in the

United States and that dumping is less likely

to continue or recur if the order were

revoked.

See also, the Senate Report at 52.

Therefore, the Department normally

will determine that revocation of an

antidumping order or termination of a

suspended dumping investigation is not

likely to lead to continuation or

recurrence of dumping where dumping

was eliminated after issuance of the

order or the suspension agreement, as

applicable, and import volumes

remained steady or increased. Declining

margins alone normally would not

qualify because the legislative history

makes clear that continued margins at

any level would lead to a finding of

likelihood. See section II.A.3, above. In

analyzing whether import volumes

remained steady or increased, the

Department normally will consider

companies’ relative market share. Such

information should be provided to the

Department by the parties.

The Department recognizes that, in

the context of a sunset review of a

suspended investigation, the

elimination of dumping coupled with
Federal Register / Vol. 63, No. 73 /Thursday, April 16, 1998 / Notices 18873

1 In 1993, the Department began using the all

others rate from the original investigation as the

appropriate cash deposit rate for companies not

covered by a review or the original investigation.

Prior to that time, the Department’s practice was to

use a ‘‘new shippers’’ rate resulting from a

particular review as the cash deposit rate for

companies whose first shipment occurred after the

period covered by the review. The Department used

as the ‘‘new shippers’’ rate the highest of the rates

of all responding firms with shipments during the

review period. This ‘‘new shippers’’ rate is

unrelated to new shipper reviews conducted

pursuant to the URAA under section 751(a)(2)(B) of

the Act.

steady or increasing import volumes

may not be conclusive with respect to

no likelihood. Therefore, the

Department may be more likely to

entertain good cause arguments under

paragraph II.C in a sunset review of a

suspended investigation.

5. Treatment of Zero or De Minimis

Margins

Section 752(c)(4)(A) of the Act

provides that a weighted-average

dumping margin determined in the

investigation or subsequent reviews that

is zero or de minimis shall not by itself

require the Department to determine

that revocation of an antidumping duty

order or termination of a suspended

investigation would not be likely to lead

to continuation or recurrence of sales at

less than fair value.

Therefore, although the Department

may consider the existence of a zero or

de minimis dumping margin in making

its determination of likelihood, a zero or

de minimis dumping margin, in itself,

will not require that the Department

determine that continuation or

recurrence of dumping is not likely. In

accordance with section 752(c)(4)(B) of

the Act and 19 CFR 351.106(c)(1), the

Department will treat as de minimis any

weighted-average dumping margin that

is less than 0.5 percent ad valorem or

the equivalent specific rate.

B. Magnitude of the Margin of Dumping

That is Likely to Prevail

1. In General

Section 752(c)(3) of the Act provides

that the Department will provide to the

Commission the magnitude of the

margin of dumping that is likely to

prevail if the order is revoked or the

suspended investigation is terminated.

The SAA at 890, and the House Report

at 64, provide that the Department

normally will select a margin ‘‘from the

investigation, because that is the only

calculated rate that reflects the behavior

of exporters * * * without the

discipline of an order or suspension

agreement in place.’’

Therefore, except as provided in

paragraphs II.B.2 and II.B.3, the

Department normally will provide to the

Commission the margin that was

determined in the final determination in

the original investigation. In certain

situations, the Department may provide

to the Commission the margin that was

determined in the preliminary

determination in the original

investigation, e.g., where the

Department did not issue a final

determination because the investigation

was suspended and continuation was

not requested. Specifically, the

Department normally will provide the

company-specific margin from the

investigation for each company

regardless of whether the margin was

calculated using a company’s own

information or based on best

information available or facts available.

Furthermore, in light of the legislative

history discussed above, for companies

not specifically investigated or for

companies that did not begin shipping

until after the order was issued, the

Department normally will provide a

margin based on the all others rate from

the investigation. In addition, the

Department normally will provide to the

Commission a list of companies

excluded from the order based on zero

or de minimis margins, if any, or

subsequently revoked from the order, if

any.

In a sunset review of an antidumping

duty finding, i.e., where the original

investigation was conducted by the

Department of the Treasury

(‘‘Treasury’’), the Department normally

will provide to the Commission the

company-specific margin or the all

others rate included in the Treasury

finding published in the Federal

Register. If no company-specific margin

or all others rate is included in the

Treasury finding, the Department

normally will provide to the

Commission the company-specific

margin from the first final results of

administrative review published in the

Federal Register by the Department. If

the first final results of administrative

review of the finding do not contain a

margin for a particular company, the

Department normally will provide to the

Commission, as the margin for that

company, the first ‘‘new shippers’’ rate 1

established by the Department for the

finding.

2. Use of a More Recently Calculated

Margin

The SAA at 890–91, and the House

Report at 64, provide that in certain

instances, it may be more appropriate

for the Department to provide the

Commission with a more recently

calculated margin. Specifically, the SAA

and the House Report state that, ‘‘if

dumping margins have declined over

the life of an order and imports have

remained steady or increased, [the

Department] may conclude that

exporters are likely to continue

dumping at the lower rates found in a

more recent review.’’ In addition, the

SAA at 889–90, and the House Report

at 63, state that, ‘‘declining (or no)

dumping margins accompanied by

steady or increasing imports may

indicate that foreign companies do not

have to dump to maintain market share

in the United States and that dumping

is less likely to continue or recur if the

order were revoked.’’ See also, the

Senate Report at 52.

Therefore, unless the Department

finds no likelihood of continuation or

recurrence of dumping, the Department

may, in response to argument from an

interested party, provide to the

Commission a more recently calculated

margin for a particular company where,

for that particular company, dumping

margins declined or dumping was

eliminated after the issuance of the

order or the suspension agreement, as

applicable, and import volumes

remained steady or increased. In

analyzing whether import volumes

remained steady or increased, the

Department normally will consider the

company’s relative market share. Such

information should be provided to the

Department by the parties.

In addition, a company may choose to

increase dumping in order to maintain

or increase market share. As a result,

increasing margins may be more

representative of a company’s behavior

in the absence of an order. Therefore,

unless the Department finds no

likelihood of continuation or recurrence

of dumping, the Department may, in

response to argument from an interested

party, provide to the Commission a

more recently calculated margin for a

particular company where, for that

particular company, dumping margins

increased after the issuance of the order,

even if the increase was as a result of

the application of best information

available or facts available.

3. Duty Absorption

a. In General

Section 751(a)(4) of the Act provides

that, during the second or fourth

administrative review of an order (or,

for transition orders, during an

administrative review initiated in 1996

or 1998 (see 19 CFR 351.213(j))), upon

request, the Department will determine

whether antidumping duties have been

absorbed by a foreign producer or

exporter subject to an order if the

subject merchandise is sold in the
18874 Federal Register / Vol. 63, No. 73 /Thursday, April 16, 1998 / Notices

United States through an importer who

is affiliated with such foreign producer

or exporter. The statute further provides

that the Department will notify the

Commission of its findings regarding

such duty absorption for the

Commission to consider in conducting a

sunset review.

Therefore, the Department will

provide to the Commission, on a

company-specific basis, its findings

regarding duty absorption, if any, for all

reviews in which the Department

conducted a duty absorption analysis.

b. Effect on Magnitude of the Margin

The SAA at 885, and the House report

at 60, state that,

Duty absorption is a strong indicator that

the current dumping margins calculated by

[the Department] in reviews may not be

indicative of the margins that would exist in

the absence of an order. Once an order is

revoked, the importer could achieve the same

pre-revocation return on its sales by lowering

its prices in the U.S. in the amount of the

duty that previously was being absorbed.

See also, the Senate Report at 50. The

SAA at 886, and the House Report at 61,

also provide that if, in the fourth

administrative review (or, for transition

orders, for an administrative review

initiated in 1998), the Department finds

that absorption has taken place, the

Department will take that into account

in its determination regarding the

dumping margins likely to prevail if an

order were revoked. The Senate Report

at 50, suggests that the Department’s

notification to the Commission of its

findings on duty absorption should

include, to the extent practicable, some

indication of the magnitude of the

absorption.

Therefore, notwithstanding

paragraphs II.B.1 and II.B.2, where the

Department has found duty absorption

in the fourth administrative review of

the order (or, for transition orders, in an

administrative review initiated in 1998),

the Department normally will—

(a) determine that a company’s

current dumping margin is not

indicative of the margin likely to prevail

if the order is revoked; and

(b) provide to the Commission the

higher of the margin that the

Department otherwise would have

reported to the Commission or the most

recent margin for that company adjusted

to account for the Department’s findings

on duty absorption.

The Department normally will adjust

a company’s most recent margin to take

into account its findings on duty

absorption by increasing the margin by

the amount of duty absorption on those

sales for which the Department found

duty absorption.

C. Consideration of Other Factors

Section 752(c)(2) of the Act provides

that, if the Department determines that

good cause is shown, the Department

also will consider other price, cost,

market or economic factors in

determining the likelihood of

continuation or recurrence of dumping.

The SAA at 890, states that such other

factors might include,

the market share of foreign producers subject

to the antidumping proceeding; changes in

exchange rates, inventory levels, production

capacity, and capacity utilization; any history

of sales below cost of production; changes in

manufacturing technology in the industry;

and prevailing prices in relevant markets.

The SAA at 890, also notes that the list

of factors is illustrative, and that the

Department should analyze such

information on a case-by-case basis.

Therefore, the Department will

consider other factors in AD sunset

reviews if the Department determines

that good cause to consider such other

factors exists. The burden is on an

interested party to provide information

or evidence that would warrant

consideration of the other factors in

question. With respect to a sunset

review of a suspended investigation,

where the Department determines that

good cause exists, the Department

normally will conduct the sunset review

consistent with its practice of examining

likelihood under section 751(a) of the

Act.

III. Sunset Reviews in Countervailing

Duty Proceedings

A. Determination of Likelihood of

Continuation or Recurrence of a

Countervailable Subsidy

1. In General

In accordance with section 752(b)(1)

of the Act, in determining whether

revocation of a countervailing duty

order or termination of a suspended

countervailing duty investigation would

be likely to lead to continuation or

recurrence of a countervailable subsidy,

the Department will consider—

(a) the net countervailable subsidy

determined in the investigation and

subsequent reviews, and

(b) whether any change in the

program which gave rise to the net

countervailable subsidy determined in

the investigation and subsequent

reviews has occurred that is likely to

affect that net countervailable subsidy.

2. Basis for Likelihood Determination

Consistent with the SAA at 879, and

the House Report at 56, the Department

will make its determination of

likelihood on an order-wide basis.

3. Continuation, Temporary Suspension,

or Partial Termination of a Subsidy

Program

a. In General

The SAA at 888, states that,

Continuation of a program will be highly

probative of the likelihood of continuation or

recurrence of countervailable subsidies.

Temporary suspension or partial termination

of a subsidy program also will be probative

of continuation or recurrence of

countervailable subsidies, absent significant

evidence to the contrary.

See also, the Senate Report at 52.

Therefore, the Department normally

will determine that revocation of a

countervailing duty order or termination

of a suspended investigation is likely to

lead to continuation or recurrence of a

countervailable subsidy where—

(a) a subsidy program continues;

(b) a subsidy program has been only

temporarily suspended; or

(c) a subsidy program has been only

partially terminated.

b. Exception

The SAA at 888–89, provides that, if

companies have a long track record of

not using a program, the mere

availability of the program should not,

by itself, indicate likelihood of

continuation or recurrence of a

countervailable subsidy. However, the

SAA at 888, also provides that as long

as a subsidy program continues to exist,

the Department should not consider

company- or industry-specific

renunciations of countervailable

subsidies, by themselves, as an

indication that continuation or

recurrence of countervailable subsidies

is unlikely.

Therefore, where a company has a

long track record of not using a program,

including during the investigation, the

Department normally will determine

that the mere availability of the program

does not, by itself, indicate likelihood of

continuation or recurrence of a

countervailable subsidy. In addition,

where a subsidy program continues to

exist, the Department normally will not

consider company-specific or industryspecific renunciation of countervailable

subsidies under that program, by

themselves, as an indication that

continuation or recurrence of a

countervailable subsidy is unlikely.

4. Subsidies for Which Benefits Are

Allocated Over Time

The SAA at 889, provides that, with

respect to subsidies for which the

benefits are allocated over time, such as

grants, long-term loans, or equity

infusions, the Department ‘‘will

consider whether the fully allocated
Federal Register / Vol. 63, No. 73 /Thursday, April 16, 1998 / Notices 18875

benefit stream is likely to continue after

the end of the review, without regard to

whether the program that gave rise to

the long-term benefit continues to

exist.’’

Therefore, where the Department is

examining a subsidy for which the

benefits are allocated over time, the

Department normally will determine

that a countervailable subsidy will

continue to exist when the benefit

stream, as defined by the Department,

will continue beyond the end of the

sunset review, without regard to

whether the program that gave rise to

the long-term benefit continues to exist.

5. Elimination of a Subsidy Program or

Exclusion of Subject Companies by the

Foreign Government

The SAA at 888, states that,

If the foreign government has eliminated a

subsidy program, . . . [the Department] will

consider the legal method by which the

government eliminated the program and

whether the government is likely to reinstate

the program. For example, programs

eliminated through administrative action

may be more likely to be reinstated than

those eliminated through legislative action.

Therefore, where the foreign

government has eliminated a subsidy

program or changes a program to

exclude subject companies, the

Department will consider—

(a) the legal method by which the

government eliminated the program,

and

(b) whether the government is likely

to reinstate the program,

in determining whether revocation of a

countervailing duty order or termination

of a suspended investigation is likely to

lead to continuation or recurrence of a

countervailable subsidy. The

Department normally will determine

that programs eliminated through

administrative action are more likely to

be reinstated than those eliminated

through legislative action.

6. Treatment of Zero or De Minimis

Rates

a. In General

Section 752(b)(4)(A) of the Act

provides that a net countervailable

subsidy determined in the investigation

or subsequent reviews that is zero or de

minimis shall not by itself require the

Department to determine that revocation

of a countervailing duty order or

termination of a suspended

investigation would not be likely to lead

to continuation or recurrence of a

countervailable subsidy.

Therefore, although the Department

may consider the existence of a zero or

de minimis countervailable subsidy rate

in making its determination of

likelihood, a zero or de minimis

countervailable subsidy rate, in itself,

will not require that the Department

determine that continuation or

recurrence of a countervailable subsidy

is not likely. In accordance with section

752(b)(4)(B) of the Act and 19 CFR

351.106(c)(1), the Department will treat

as de minimis any countervailable

subsidy rate that is less than 0.5 percent

ad valorem or the equivalent specific

rate.

b. De Minimis Combined Benefits

The SAA at 889, and the House

Report at 63, state that,

[I]f the combined benefits of all programs

considered by [the Department] for purposes

of its likelihood determination have never

been above de minimis at any time the order

was in effect, and if there is no likelihood

that the combined benefits of such programs

would be above de minimis in the event of

revocation or termination, [the Department]

should determine that there is no likelihood

of continuation or recurrence of

countervailable subsidies.

Therefore, if the combined benefits of

all programs considered by the

Department for purposes of its

likelihood determination have never

been above de minimis at any time the

order was in effect, and if there is no

likelihood that the combined benefits of

such programs would be above de

minimis in the event of revocation or

termination, the Department normally

will determine that there is no

likelihood of continuation or recurrence

of countervailable subsidies. In

accordance with section 752(b)(4)(B) of

the Act and 19 CFR 351.106(c)(1), the

Department will treat as de minimis any

overall countervailable subsidy rate that

is less than 0.5 percent ad valorem or

the equivalent specific rate.

B. Net Countervailable Subsidy That is

Likely to Prevail

1. In General

Section 752(b)(3) of the Act provides

that the Department will provide to the

Commission the net countervailable

subsidy that is likely to prevail if the

order is revoked or the suspended

investigation is terminated. The SAA at

890, and the House Report at 64,

provide that the Department normally

will select a rate ‘‘from the

investigation, because that is the only

calculated rate that reflects the behavior

of exporters and foreign governments

without the discipline of an order or

suspension agreement in place.’’

Therefore, except as provided in

paragraph III.B.3, the Department

normally will provide to the

Commission the net countervailable

subsidy that was determined in the final

determination in the original

investigation. In certain situations, the

Department may provide to the

Commission the net countervailable

subsidy that was determined in the

preliminary determination in the

original investigation, e.g., where the

Department did not issue a final

determination because the investigation

was suspended and continuation was

not requested. In addition, the

Department normally will provide to the

Commission a list of companies

excluded from the order based on zero

or de minimis rates, if any, or

subsequently revoked from the order, if

any.

In a sunset review of a countervailing

duty order where the original

investigation was conducted by

Treasury, the Department normally will

provide to the Commission the net

countervailable subsidy (sometimes

previously called the net bounty,

subsidy, or grant) from the first final

results of administrative review

published in the Federal Register by the

Department, where the net

countervailable subsidy was first

calculated on an ad valorem basis.

2. Determination of Net Countervailable

Subsidy; Company-Specific Rates

Prior to enactment of the URAA, the

Department calculated companyspecific countervailable subsidy rates in

the original investigation only where

such rates were ‘‘significantly different’’

from the country-wide rate. See 19 CFR

355.20(d) (1995). Since enactment of the

URAA, and in accordance with section

777A(e)(1) of the Act, the Department,

where possible, calculates individual

countervailable subsidy rates in an

investigation for each known exporter or

producer of the subject merchandise

(see section 777A(e)(2) of the Act

(providing for an exception to the

calculation of individual rates where it

is not practicable to do so because of the

large number of exporters or producers

involved in the investigation)).

Therefore, except as provided in

paragraph III.B.3, where a companyspecific countervailing duty rate was

determined for a particular company in

the original investigation, the

Department normally will provide that

rate to the Commission as the net

countervailable subsidy that is likely to

prevail for that company if the order is

revoked or the suspended investigation

is terminated. Specifically, the

Department normally will provide the

company-specific countervailing duty

rate from the investigation for each

company, where available, regardless of

whether the rate was calculated using a
18876 Federal Register / Vol. 63, No. 73 /Thursday, April 16, 1998 / Notices

company’s own information or was

based on best information available or

facts available. If no company-specific

countervailing duty rate was determined

for a particular company in the original

investigation, because the company’s

rate was not ‘‘significantly different’’

from the country-wide rate, the

company was not specifically

investigated, or the company did not

begin shipping until after the order was

issued, except as provided in paragraph

III.B.3, the Department normally will

provide to the Commission the countrywide rate or all others rate determined

in the original investigation as the net

countervailable subsidy that is likely to

prevail for that particular company if

the order is revoked or the suspended

investigation is terminated.

3. Adjustments to the Subsidy

As discussed in paragraph III.B.1, the

Department normally will provide to the

Commission the net countervailable

subsidy that was determined in the

original investigation. However, the

purpose of the net countervailable

subsidy in the context of sunset reviews

is to provide the Commission with a rate

which represents the countervailable

rate that is likely to prevail if the order

is revoked or the suspended

investigation is terminated.

Furthermore, section 752(b)(1)(B) of the

Act provides that the Department will

consider whether any change in the

program which gave rise to the net

countervailable subsidy determination

in the investigation or subsequent

reviews has occurred that is likely to

affect the net countervailable subsidy.

Consequently, although the SAA at 890,

and the House Report at 64, provide that

the Department normally will select a

rate from the investigation, this rate may

not be the most appropriate if, for

example, the rate was derived (in whole

or part) from subsidy programs which

were found in subsequent reviews to be

terminated, there has been a programwide change, or the rate ignores a

program found to be countervailable in

a subsequent administrative review.

Therefore, the Department may make

adjustments to the net countervailable

subsidy determined pursuant to

paragraphs III.B.1 and III.B.2, including,

but not limited to, the following:

(a) Where the Department has

conducted an administrative review of

the order, or suspension agreement, as

applicable, and found that a program

was terminated with no residual

benefits and no likelihood of

reinstatement, the Department normally

will adjust the net countervailable

subsidy rate determined in the original

investigation to reflect the change. If, in

an investigation, the Department found

that a program had been terminated

with no residual benefits subsequent to

the period of investigation, the

Department normally will consider this

information in determining the net

countervailable subsidy.

(b) The Department normally will not

make adjustments to the net

countervailable subsidy rate for

programs that still exist, but were

modified subsequent to the order, or

suspension agreement, as applicable, to

eliminate exports to the United States

(or subject merchandise) from

eligibility.

(c) Where the Department has

conducted an administrative review of

the order, or suspension agreement, as

applicable, and found a new

countervailable program, or found a

program previously not used but

subsequently found countervailable,

that was included in the new subsidy

rate for the administrative review, the

Department normally will adjust the net

countervailable subsidy rate determined

in the original investigation to reflect

the change.

(d) Where the Department has

conducted an administrative review of

the order, or suspension agreement, as

applicable, and determined to increase

the net countervailable subsidy rate for

any reason, including as a result of the

application of best information available

or facts available, the Department may

adjust the net countervailable subsidy

rate determined in the original

investigation to reflect the increase in

the rate.

(e) Where the Department has

conducted an administrative review of

the order, or suspension agreement, as

applicable, and found that a program is

not countervailable based on sections

771(5B)(B), (C), or (D) of the Act, the

Department normally will adjust the net

countervailable subsidy rate determined

in the original investigation to reflect

the change. Also, where a subsidy is

provided pursuant to a program that has

been notified in accordance with Article

8.3 of the Subsidies Agreement (see

section 771(5B)(E)(i) of the Act), the

Department normally will adjust the net

countervailable subsidy rate determined

in the original investigation to reflect

the change, unless the Department

determines to treat the subsidy as

countervailable based upon notification

from the Trade Representative under

section 771(5B)(E)(ii) of the Act.

(f) Where the Department has

conducted an administrative review of

the order, or suspension agreement, as

applicable, and found that a program is

not countervailable based on section

771(5B)(F) of the Act, the Department

normally will adjust the net

countervailable subsidy rate determined

in the original investigation to reflect

the change.

(g) Where the Department has not

conducted an administrative review of

the order, or suspension agreement, as

applicable, subsequent to the

investigation, except as provided in

paragraph III.C, the Department

normally will not make adjustments to

the net countervailable subsidy rate

determined in the original investigation.

4. Nature of the Countervailable Subsidy

Consistent with section 752(a)(6) of

the Act, the Department will provide

information to the Commission

concerning the nature of a

countervailable subsidy and whether

the subsidy is a subsidy described in

Article 3 or Article 6.1 of the Subsidies

Agreement.

C. Consideration of Other Factors

1. Programs Determined To Provide

Countervailable Subsidies in Other

Investigations or Reviews

Section 752(b)(2)(A) of the Act

provides that if the Department

determines that good cause is shown,

the Department also will consider

programs determined to provide

countervailable subsidies in other

investigations or reviews, but only to

the extent that such programs—

(a) can potentially be used by the

exporters or producers subject to the

sunset review, and

(b) did not exist at the time that the

countervailing duty order was issued or

the suspension agreement accepted.

Therefore, the Department will

consider such other programs in CVD

sunset reviews if the Department

determines that good cause to consider

such other programs exists. The burden

is on interested parties to provide

information or evidence that would

warrant consideration of the subsidy

program in question. In addition, with

respect to a sunset review of a

suspended investigation, where the

Department determines that good cause

exists, the Department normally will

conduct the sunset review consistent

with its practice of examining

likelihood under section 751(a) of the

Act.

2. Programs Newly Alleged To Provide

Countervailable Subsidies

Section 752(b)(2)(B) of the Act

provides that if the Department

determines that good cause is shown,

the Department also will consider

programs newly alleged to provide

countervailable subsidies, but only to
Federal Register / Vol. 63, No. 73 /Thursday, April 16, 1998 / Notices 18877

the extent that the Department makes an

affirmative countervailing duty

determination with respect to such

programs and with respect to the

exporters or producers subject to the

sunset review. The SAA at 889, states

that,

[S]ubsidy allegations normally should be

made in the context of [administrative]

reviews * * *, and [the Department is not

expected] to entertain frivolous allegations in

. . . [sunset] reviews. However, where there

have been no recent [administrative] reviews

or where the alleged countervailable subsidy

program came into existence after the most

recently completed [administrative] review,

[the Department] may consider new subsidy

allegations in the context of a * * * [sunset]

review.

Therefore, the Department will

consider programs newly alleged to

provide countervailable subsidies if the

Department determines that good cause

to consider such programs exists.

Furthermore, the Department normally

will consider a new subsidy allegation

in the context of a sunset review only

where information on such program was

not reasonably available to domestic

interested parties during the most

recently completed administrative

review or the alleged countervailable

subsidy program came into existence

after that administrative review. The

burden is on interested parties to

provide information or evidence that

would warrant consideration of the

subsidy program in question. In

addition, with respect to a sunset review

of a suspended investigation, where the

Department determines that good cause

exists, the Department normally will

conduct the sunset review consistent

with its practice of examining

likelihood under section 751(a) of the

Act.

[FR Doc. 98–10039 Filed 4–15–98; 8:45 am]

BILLING CODE 3510–DS–P

DEPARTMENT OF COMMERCE

International Trade Administration

[A–427–801, A–428–801, A–475–801, A–588–

804, A–485–801, A–559–801, A–401–801, A–

549–801, A–412–801]

Antifriction Bearings (Other Than

Tapered Roller Bearings) and Parts

Thereof From France, et al.; Amended

Final Results of Antidumping Duty

Administrative Reviews

AGENCY: Import Administration,

International Trade Administration,

Department of Commerce.

ACTION: Notice of final court decision

and amended final results of

administrative reviews.

SUMMARY: On December 12, 1996, the

United States Court of International

Trade affirmed the Department of

Commerce’s final remand results

affecting final assessment rates for the

third administrative reviews of the

antidumping duty orders on antifriction

bearings (other than tapered roller

bearings) and parts thereof from France,

Germany, Italy, Japan, Romania,

Singapore, Sweden, Thailand, and the

United Kingdom. The classes or kinds of

merchandise covered by these reviews

are ball bearings and parts thereof,

cylindrical roller bearings and parts

thereof, and spherical plain bearings

and parts thereof. As there is now a final

and conclusive court decision in these

actions (with the exceptions of SKF

GmbH, SKF Industrie S.p.A. and SKF

Sverige AB which have filed appeals to

the Court of Appeals for the Federal

Circuit), we are amending our final

results of reviews and we will instruct

the U.S. Customs Service to liquidate

entries subject to these reviews with the

exception of those still under appeal.

EFFECTIVE DATE: April 16, 1998.

FOR FURTHER INFORMATION CONTACT: Greg

Thompson or Jay Biggs, Import

Administration, International Trade

Administration, U.S. Department of

Commerce, 14th Street and Constitution

Avenue, N.W., Washington, D.C. 20230;

telephone (202) 482–0410 or (202) 482–

1690.

SUPPLEMENTARY INFORMATION:

Applicable Statute

Unless otherwise indicated, all

citations to the Tariff Act of 1930, as

amended (the Tariff Act), are references

to the provisions in effect as of

December 31, 1994. In addition, unless

otherwise indicated, all citations to the

Department of Commerce’s (the

Department’s) regulations are to the

regulations as codified at 19 CFR Part

353 (April 1, 1997).

Background

On July 26, 1993, the Department

published its final results of

administrative reviews of the

antidumping duty orders on antifriction

bearings (other than tapered roller

bearings) and parts thereof from France,

Germany, Italy, Japan, Romania,

Singapore, Sweden, Thailand, and the

United Kingdom, covering the period

May 1, 1991 through April 30, 1992

(AFBs III) (58 FR 39729). These final

results were amended on August 9,

1993, September 30, 1993, December 15,

1993 and February 28, 1994 (see 58 FR

42288, 58 FR 51055, 58 FR 65576 and

59 FR 9469, respectively). The classes or

kinds of merchandise covered by these

reviews are ball bearings and parts

thereof (BBs), cylindrical roller bearings

and parts thereof (CRBs), and spherical

plain bearings and parts thereof (SPBs).

Subsequently, two domestic producers,

the Torrington Company and FederalMogul, and a number of other interested

parties filed lawsuits with the U.S.

Court of International Trade (CIT)

challenging the final results. These

lawsuits were litigated at the CIT and

the United States Court of Appeals for

the Federal Circuit (CAFC). In the

course of this litigation, the CIT and

CAFC issued a number of orders and

opinions, of which the following have

resulted in changes to the antidumping

margins calculated in AFBs III:

Federal-Mogul Corporation and the

Torrington Company v. United States,

Slip Op. 96–37, (February 13, 1996)

with respect to France, Germany, Italy,

Japan, Singapore, Sweden, Thailand,

and the United Kingdom;

Koyo Seiko Co. v. United States, Fed.

Cir. Nos. 93–1525, 93–1534 (September

30, 1994) with respect to Japan;

NSK Ltd. and NSK Corporation v.

United States, Slip Op. 94–175

(November 14, 1994) with respect to

Japan;

NSK Ltd. and NSK Corporation v.

United States, Slip Op. 94–181

(November 28, 1994) with respect to

Japan;

NSK Ltd. v. United States, Slip Op.

96–125 (August 5, 1996) with respect to

Japan;

SKF USA Inc. v. United States, Slip

Op. 95–82 (May 4, 1995) with respect to

Italy;

SKF USA Inc. v. United States, Slip

Op. 96–13 (January 10, 1996) with

respect to France;

SKF USA Inc. v. United States, Slip

Op. 96–15 (January 16, 1996) with

respect to Italy;

SKF USA Inc. v. United States, Slip

Op. 96–16 (January 16, 1996) with

respect to Sweden;

FAG Kugelfischer Georg Schafer

KgaA., FAG Italia S.p.A, FAG (U.K.)

Limited, Barden Corporation Limited,

FAG Bearings Corporation and The

Barden Corporation v. United States,

Slip Op. 96–108 (July 10, 1996) with

respect to Italy, Germany, and the

United Kingdom;

INA Walzlager Schaeffler KG and INA

Bearing Company, Inc. v. United States,

Slip Op. 96–26 (January 29, 1996) with

respect to Germany;

SNR Roulements v. United States,

Slip Op. 98–6 (January 23, 1998) with

respect to France;

Federal-Mogul Corporation and the

Torrington Company v. United States,

Slip Op. 96–193 (December 12, 1996)