[Federal Register Volume 70, Number 208 (Friday, October 28, 2005)]
[Rules and Regulations]
[Pages 62061-62064]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-21468]


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DEPARTMENT OF COMMERCE

International Trade Administration

19 CFR Part 351

[Docket No. 050803215-5260-02]
RIN 0625-AA69


Procedures for Conducting Five-Year (``Sunset'') Reviews of 
Antidumping and Countervailing Duty Orders

AGENCY: Import Administration, International Trade Administration, 
Department of Commerce.

ACTION: Final rule.

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SUMMARY: The Department of Commerce (``the Department'') is amending 
its regulations related to sunset reviews to conform the existing 
regulation to the United States' obligations under Articles 6.1, 6.2, 
and 11.3 of the Agreement on the Implementation of Article VI of the 
General Agreement on Tariffs and Trade 1994 (``Antidumping 
Agreement''). The regulations amend the ``waiver'' provisions which 
govern treatment of interested parties who do not provide a substantive 
response to the Department's notice of initiation of a sunset review 
and clarify the basis for parties' participation in a public hearing in 
an expedited sunset review.

DATES: The effective date of this final rule is October 31, 2005. The 
final rule will be applied in sunset reviews initiated on or after the 
effective date.

[[Page 62062]]


FOR FURTHER INFORMATION CONTACT: Stacy J. Ettinger or Patrick V. 
Gallagher, Office of the Chief Counsel for Import Administration, room 
3622, U.S. Department of Commerce, Pennsylvania Avenue and 14th Street 
NW., Washington, DC 20230; telephone: (202) 482-4618 or (202) 482-5053, 
respectively.

SUPPLEMENTARY INFORMATION:

Background

    On March 20, 1998, the Department published regulations addressing 
the procedures for participation in, and conduct of, sunset reviews. 
See 63 FR 13516. On December 17, 2004, the Dispute Settlement Body 
(``DSB'') of the World Trade Organization adopted the reports of the 
Appellate Body and the dispute settlement panel in United States--
Sunset Reviews of Anti-dumping Measures on Oil Country Tubular Goods 
from Argentina, WT/DS268/AB/R (November 29, 2004) and WT/DS268/R (July 
16, 2004), respectively. The AB and the dispute settlement panel found 
that the waiver provisions of section 751(c)(4)(B) of the Tariff Act of 
1930 and section 351.218(d)(2)(iii) of Commerce's sunset regulations 
are inconsistent with Articles 6.1, 6.2, and 11.3 of the Antidumping 
Agreement.
    Section 123 of the URAA governs the process for changes to the 
Department's regulations where a dispute settlement panel and/or the 
Appellate Body finds a regulatory provision to be inconsistent with any 
of the WTO agreements. Consistent with section 123(g)(1)(C), on August 
15, 2005, the Department published proposed amendments to its 
regulations related to sunset reviews to conform the existing 
regulations to the United States' obligations under Articles 6.1, 6.2, 
and 11.3 of the Antidumping Agreement. The Department received four 
sets of written public comments on the proposed amendments. The 
Department has carefully considered each of the comments it received, 
and has adopted a drafting suggestion from one commenter related to the 
issue of the basis for parties' participating in a hearing in an 
expedited sunset review. This final rule is published pursuant to 
section 123(g)(1)(F) of the URAA. The final rule amends the ``waiver'' 
provisions which govern treatment of interested parties who do not 
provide a complete substantive response to the Department's Notice of 
Initiation of a sunset review and clarifies the basis for parties' 
participation in a public hearing in an expedited sunset review.

Explanation of Amendments

    In finalizing the amendments to the Department's regulations 
addressing the procedures for participation in, and conduct of, sunset 
reviews, the Department carefully considered each of the comments it 
received. The following is an explanation of the amendments, as well as 
a summary of the comments received and the Department's responses to 
those comments.

Section 351.218

    Section 751(c)(4)(B) of the Tariff Act provides that where an 
interested party ``waives'' its participation in a sunset review, the 
Department ``shall conclude that revocation of the order * * * would be 
likely to lead to continuation or recurrence of dumping or a 
countervailable subsidy (as the case may be) with respect to that 
interested party.'' Paragraph (d)(2) of 19 CFR 351.218 deals with the 
procedure for waiving participation in a sunset review before the 
Department. Specifically, paragraph (d)(2)(i) provides for filing a 
``statement of waiver'' for parties electing not to participate in the 
Department's sunset review (so-called ``affirmative waiver''), and 
paragraph (d)(2)(iii) provides that failure to file a complete 
substantive response to a notice of initiation also will be treated as 
a waiver of participation (so-called ``deemed waiver''). The panel and 
Appellate Body found that the operation of the statutory and regulatory 
waiver provisions was inconsistent with the obligation under Article 
11.3 to arrive at a ``reasoned conclusion'' because the Department's 
order-wide likelihood determination would be based, at least in part, 
on statutorily-mandated ``assumptions'' about a company's likelihood of 
dumping. The AB and panel also found that the operation of paragraph 
(d)(2)(iii) was inconsistent with ``due process rights'' of Articles 
6.1 and 6.2, because the Department could assume likelihood with 
respect to a particular company even though that party had filed a 
substantive response to the notice of initiation, albeit an 
``incomplete'' response.
    To implement the AB and panel findings with respect to the 
operation of the waiver provisions, the Department has modified its 
regulations to eliminate the possibility that the Department's order-
wide likelihood determinations would be based on assumptions about 
likelihood of continuation or recurrence of dumping or a 
countervailable subsidy due to interested parties' waiver of 
participation in sunset reviews. Specifically, the Department has made 
the following three modifications to paragraph (d)(2) of 19 CFR 
351.218. First, with respect to so-called ``affirmative waivers'' set 
forth in paragraph (d)(2)(i)--which provides that a party may elect not 
to participate in the Department's sunset review by filing a 
``statement of waiver'' within 30 days of initiation of the sunset 
review--the Department has amended the contents of a ``statement of 
waiver'' which are set forth in paragraph (d)(2)(ii). Paragraph 
(d)(2)(ii) now requires that a party filing a Statement of Waiver 
include a statement that it is likely to dump or benefit from a 
countervailable subsidy (as the case may be) or, in the case of a 
foreign government in a CVD sunset review, provide a countervailable 
subsidy, if the order is revoked or the investigation is terminated. 
Second, we have eliminated paragraph (d)(2)(iii)--which provided that 
an interested party is ``deemed'' to have waived participation in the 
sunset review by failing to file a complete substantive response to a 
notice of initiation. Thus, the Department will no longer make company-
specific likelihood findings for companies that fail to file a 
statement of waiver and fail to file a substantive response to the 
notice of initiation. Finally, we modified paragraphs (d)(2)(iv)(C) and 
(e)(1)(ii)(B)(3)--which address waiver of participation by a foreign 
government in a CVD sunset review--to eliminate cross-references to 
paragraph (d)(2)(iii) and to eliminate certain language that might 
suggest the possibility that the Department's order-wide likelihood 
determination in a CVD sunset review would be based on assumptions 
about likelihood of continuation or recurrence of a countervailable 
subsidy. In sum, these three modifications to the waiver provisions of 
the Department's sunset regulations ensure that there is no longer the 
possibility that the Department's order-wide likelihood determinations 
might be based on assumptions about likelihood of continuation or 
recurrence of dumping or a countervailable subsidy. The Department will 
make its order-wide likelihood determinations on the basis of the facts 
and information available on the record of the sunset review.
    Two commenters argue that amendment or withdrawal of the statutory 
provision (section 751(c)(4)(B) of the Act) found to be WTO-
inconsistent was required in order to implement the AB/panel findings. 
We disagree. By modifying its regulatory waiver provisions, the 
Department has eliminated the possibility that its order-wide 
likelihood determinations would be based on assumptions about

[[Page 62063]]

likelihood of continuation or recurrence of dumping or a 
countervailable subsidy due to interested parties' waiver of 
participation in sunset reviews. Section 751(c)(4)(B) of the Act only 
mandates an affirmative company-specific likelihood finding as a 
consequence of a party electing to waive its participation in the 
sunset review. Thus, the modified regulatory waiver requirements result 
in elimination of any assumptions about likelihood because a party 
waiving participation would have already indicated to the Department 
that it was likely to dump or benefit from a countervailable subsidy if 
the order were revoked.
    Two commenters also noted that the regulations would not longer 
specify how the Department will address the situation where a producer/
exporter does not participate in a sunset review. The commenters are 
correct in part. While it is the statute that provides for 
determinations on the basis of facts available where, inter alia, a 
party does not provide requested information (section 776 of the Act), 
there are specific provisions in the Department's regulations 
concerning use of facts available in a sunset review (19 CFR 
351.308(f)). As a general matter, the Department will make its order-
wide likelihood determination on the basis of the facts and information 
available on the record of the sunset review which may include, where 
appropriate, use of facts available as provided for in the statute and 
regulations.

Section 351.309

    The Appellate Body upheld the panel's finding that the operation of 
paragraph (d)(2)(iii) of 19 CFR 351.218 was inconsistent with Article 
6.2 in that it allegedly denies an interested party that is deemed to 
have waived its right to participate in a sunset review by submitting 
an incomplete substantive response the right to participate in a 
hearing. Paragraph (d)(2)(iii) does not explicitly address the issue of 
hearings; nor do the regulations preclude hearings in expedited sunset 
reviews resulting from the application of the waiver provisions. 
Nevertheless, in the interest of alleviating any perceived confusion 
with respect to participation in a hearing in an expedited sunset 
review, the Department is modifying paragraph (c)(1)(iii) of 19 CFR 
351.309 to clarify that the Secretary will specify a due date for case 
briefs in an expedited sunset review. Case briefs provide the basis for 
parties' affirmative presentations at a hearing. In addition, as 
discussed above, for other reasons we have eliminated paragraph 
(d)(2)(iii) in its entirety.
    One commenter argued that providing for filing of case briefs in 
expedited reviews could eliminate the distinction between expedited and 
full sunset reviews. The commenter proposed, instead, that the 
regulations provide respondents with an opportunity to supplement their 
substantive responses to correct identified deficiencies. We have not 
adopted this suggestion. The central distinction between an expedited 
and full sunset review remains. In a full sunset review, the 
regulations provide that the Department will issue a preliminary 
determination and allow comments on that determination; there is no 
provision for issuance of a preliminary determination in an expedited 
sunset review. Clarifying the basis for parties' participation in a 
public hearing in an expedited sunset review does not change this 
distinction. The commenter also suggested that if the Department 
permits the filing of case briefs in an expedited review, it should 
make a corresponding amendment to paragraph (e)(1)(ii)(C)(2) of 19 CFR 
351.218. We agree and have eliminated certain language in paragraph 
(e)(1)(ii)(C)(2) that could be construed as inconsistent with 
permitting parties to file case briefs in expedited sunset reviews.

Classification

E.O. 12866

    This final rule has been determined to be not significant under 
E.O. 12866.

Administrative Procedures Act

    The Department finds good cause to waive the 30-day delay in 
effectiveness pursuant to 5 U.S.C. 553(d)(3) in order to complete 
requirements mandated by the World Trade Organization (``WTO'') 
Appellate Body by December 17, 2005. On December 17, 2004, the WTO 
Appellate Body (``AB'') issued its findings regarding the sunset review 
of the antidumping duty order on Oil Country Tubular Goods (``OCTG'') 
from Argentina. The WTO-appointed arbitrator determined, with reference 
to the Appellate Body report, that the United States must bring its 
laws into compliance with the Antidumping Agreement and complete 
another sunset review of the antidumping duty order on OCTG from 
Argentina not later than December 17, 2005. The Department was informed 
of this deadline date on June 7, 2005. On August 15, 2005 (70 FR 
47738), the Department published a proposed rule to solicit comments on 
proposed revisions to its regulations related to sunset reviews. In 
addition, the Department initiated consultations for 60 days with the 
relevant congressional committees in accordance with section 123 of the 
Uruguay Round Agreements Act. After the publication of this final rule, 
the Department still must initiate the sunset review, provide 
interested parties with 30 days to submit their responses to the 
Department's sunset questionnaire, analyze the responses, and make a 
final likelihood determination in the sunset review before December 17, 
2005. Thus, in order to meet the WTO-mandated implementation date and 
to ensure that interested parties have an opportunity to participate 
fully in the sunset review, the Department finds good cause to waive 
the 30-day delay in effectiveness of the final rule and makes these 
regulations effective on October 31, 2005, upon conclusion of the 60-
day congressional consultation period required by the Uruguay Round 
Agreements Act.

Paperwork Reduction Act

    Notwithstanding any other provision of law, no person is required 
to respond to nor shall a person be subject to a penalty for a failure 
to comply with a collection of information subject to the requirements 
of the Paperwork Reduction Act unless that collection of information 
displays a currently valid Office of Management and Budget (OMB) 
control number. This final rule involves collection-of-information 
requirements subject to the Paperwork Reduction Act, 44 U.S.C. Chapter 
35. The requirements have been approved by OMB under control numbers 
0625-0105 and 0625-0148.

E.O. 12612

    This final rule does not contain federalism implications warranting 
the preparation of a Federalism Assessment.

Regulatory Flexibility Act

    The Chief Counsel for Regulation of the Department of Commerce has 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration that this final rule will not have a significant impact 
on a substantial number of small entities. The factual basis for the 
certification was published in the proposed rule and is not repeated 
here. No comments were received regarding the economic impact of this 
action. As a result, a regulatory flexibility analysis was not 
prepared.

List of Subjects in 19 CFR Part 351

    Administrative practice and procedure, Antidumping duties, Business 
and industry, Cheese, Confidential business information, Countervailing 
duties, Investigations,

[[Page 62064]]

Reporting and recordkeeping requirements.

    Dated: October 20, 2005.
Joseph A. Spetrini,
Acting Assistant Secretary for Import Administration.

0
For the reasons stated, 19 CFR part 351 is amended as follows:

PART 351--ANTIDUMPING AND COUNTERVAILING DUTIES

Subpart B--Antidumping and Countervailing Duty Procedures

0
1. Section 351.218 is amended by revising paragraphs (d)(2)(ii) 
introductory text, (d)(2)(iv)(C), (e)(1)(ii)(B) introductory text, 
(e)(1)(ii)(B)(3), and (e)(1)(ii)(C)(2), and removing and reserving 
paragraph (d)(2)(iii), as follows:


Sec.  351.218  Sunset reviews under section 751(c) of the Act.

* * * * *
    (d) * * *
    (2) * * *
    (ii) Contents of statement of waiver. Every statement of waiver 
must include a statement indicating that the respondent interested 
party waives participation in the sunset review before the Department; 
a statement that the respondent interested party is likely to dump or 
benefit from a countervailable subsidy (as the case may be) if the 
order is revoked or the investigation is terminated; in the case of a 
foreign government in a CVD sunset review, a statement that the 
government is likely to provide a countervailable subsidy if the order 
is revoked or the investigation is terminated; and the following 
information:
* * * * *
    (iv) * * *
    (C) Base the final results of review on the facts available in 
accordance with 351.308(f).
* * * * *
    (e) Conduct of sunset review--(1) * * *
    (ii) * * *
    (B) Failure of a foreign government to file a substantive response 
to a notice of initiation in a CVD sunset review. If a foreign 
government fails to file a complete substantive response to a notice of 
initiation in a CVD sunset review under paragraph (d)(3)(v) of this 
section or waives participation in a CVD sunset review under paragraph 
(d)(2)(i) of this section, the Secretary will: * * *
    (3) Base the final results of review on the facts available in 
accordance with 351.308(f).
    (C) * * *
    (2) Normally will conduct an expedited sunset review and, not later 
than 120 days after the date of publication in the Federal Register of 
the notice of initiation, issue final results of review based on the 
facts available in accordance with Sec.  351.308(f) (see section 
751(c)(3)(B) of the Act and Sec.  351.221(c)(5)(ii)).
* * * * *

Subpart C--Information and Argument

0
2. Section 351.309 is amended by revising paragraph (c)(1)(iii) to read 
as follows:


Sec.  351.309  Written argument.

* * * * *
    (c) Case brief. (1) * * *
    (iii) For the final results of an expedited sunset review, 
expedited antidumping review, Article 8 violation review, Article 4/
Article 7 review, or section 753 review, a date specified by the 
Secretary.
* * * * *
[FR Doc. 05-21468 Filed 10-28-05; 8:45 am]
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